New South Wales Supreme Court CITATION : Lanser v Madigan [2004] NSWSC 1233 HEARING DATE(S) : 19 August 2004 JUDGMENT DATE : 19 August 2004 JUDGMENT OF : Simpson J DECISION : The defence filed on 22 April 2004, the cross-claim filed on the same date, and the amended defence filed on 4 June 2004 are struck out. The defendant is to pay the plaintiff's costs. Any amended defence is to be filed on or before 1 October 2004. CATCHWORDS : defamation - form of pleaded defences - particularisation of defence of substantial truth - defences as pleaded lacking in clarity - no cause of action is pleaded in cross-claim - admissibility of evidence - parliamentary privilege - order for costs Defamation Act 1974 s7A, LEGISLATION CITED : Parliamentary Privileges Act 1987 Supreme Court Rules, Part 67, Rule 12A CASES CITED : Rann v Olsen [2003] SASC 83; 172 ALR 395 PARTIES : John Morris Lanser - Plaintiff Bernard Ernest Madigan - Defendant FILE NUMBER(S) : SC 20272/03 COUNSEL : R G McHugh - Plaintiff SOLICITORS : J K O'Sullivan - Plaintiff Defendant in person IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SIMPSON J Thursday 19 August 2004 20272/03 John Morris LANSER v Bernard Ernest MADIGAN JUDGMENT ON APPLICATION TO STRIKE OUT 1 Her Honour: By statement of claim filed on 15 October 2003 the plaintiff alleges that the defendant has defamed him in four separate publications identified in the statement of claim as respectively the first, second, third and fourth matters complained of. In respect of each such alleged publication the plaintiff has claimed that certain defamatory imputations of and concerning him were conveyed. 2 The first matter complained of was said to take the form of material printed on a label affixed to envelopes directed to Members of the Australian and New South Wales Parliaments and sent by post. The second, third and fourth matters complained of are pleaded to have been published on the Internet. 3 It may generally be said that the imputations pleaded on behalf of the plaintiff are to the effect of serious impropriety in a variety of ways, and the commission of serious criminal offences, in some cases identified specifically. 4 On 22 April 2004 the defendant filed a document entitled "Defence" and another entitled "Cross-claim", and on 4 June 2004 he filed a further document entitled "Defence", which has been referred to by counsel for the plaintiff as an amended defence, although not so entitled. 5 Prior to that, on 4 December 2003, the defendant filed a document entitled "Notice of dispute". I forebear from restating the allegations contained in that document. Regard can be had to it, in particular the opening words. On 10 May 2004 the defendant filed a document entitled "Part 67 Rule 12A Notice"; a reference to a provision of the Supreme Court Rules. 6 By notice of motion filed in court on 18 June 2004 the plaintiff has sought orders that the defence filed on 22 April 2004 and the subsequent document entitled "Defence" and filed 4 June 2004, and the cross-claim filed on 22 April 2004, all be struck out, consequential orders and costs orders. In pursuing those orders, counsel for the plaintiff has identified what are said to be deficiencies in those documents. 7 In argument today the defendant asserted categorically that he denies publication. This is obviously a matter of significance in the proceedings. However, in the defence of 4 June 2004 the opening paragraph reads: "The defendant denies publication of the material as described in the form alleged in the statement of claim." 8 In oral argument he put a number of matters concerning the alleged publication of material on the Internet. It was not clear to me what point he sought to make about the alleged publication of the first matter complained of in the form of the labels affixed to envelopes. 9 In subsequent paragraphs in that document the defendant has made reference to labels and envelopes in a form which suggests an acknowledgment that the labels were placed on letters and posted. I am satisfied that the position of the defendant as to the allegation of publication of the four matters complained of is not clearly stated in any of the documents filed, and if for no other reason than that, that part of the defence must be struck out. 10 However, there are additional reasons for coming to that view. As a result of the 1995 amendments to the Defamation Act 1974, defamation trials are split into two segments, the first of which is committed to a jury for determination of whether the imputations pleaded, or any of them, have or has been conveyed. Preliminary to that, where such an issue is raised, a judge determines whether the matter complained of is capable of conveying the imputations. 11 It is not clear from the documents filed whether any issue as to capacity in relation to any of the publications, or any of the pleaded imputations, does arise, and whether therefore a jury trial pursuant to section 7A of the Defamation Act will be necessary. 12 Another matter of concern is the form of both pleaded defences. It seems reasonably clear that what the defendant would seek to do is to pursue a defence of substantial truth. Substantial truth of itself is not a defence to a claim for defamation. 13 Counsel who appears for the plaintiff has quite fairly placed little emphasis on the absence of particularisation of the necessary additional matters needed to support a defence of substantial truth, acknowledging that the substance of the matters alleged can be perceived to relate to matters of public interest at least. However, it is necessary that a defence identify the matters to be raised in order to enable the plaintiff properly to prepare to meet that defence. 14 The defence as pleaded, and I am referring now to the defence filed 4 June 2004, is diffuse and contains a large number of allegations which are not properly matters for pleading, although they may in general be matters for particularisation. I am satisfied that it would be unfair to require the plaintiff to proceed to trial on the basis of either of the defences pleaded, and I propose to strike out each of those documents. 15 I turn now to the cross-claim which I have read, although quickly. It is apparent to me that this document must also be struck out. Firstly, although it runs to eighty-seven paragraphs over twenty pages, there is nowhere that a cause of action is pleaded. In paragraphs 83 and 84 damages are claimed, but those are not related to any identified cause of action. 16 The defendant in that document has also sought an order of this Court that an order made in the District Court be set aside. That cannot be done in this Division of this Court. He also seeks orders that arguments as to damages and costs be heard separately, but quite what that means is obscure. 17 The substance of this document, like the defence, might be perceived to be largely to assert the truth either of the imputations pleaded on behalf of the plaintiff or the statements claimed to have been made by the defendant, but this is not sufficient to plead a cause of action. If it is sought by the cross-claim to assert the truth of the imputations, then that is misplaced in a cross-claim. 18 There is a final point which I will mention. An issue arises as to evidence which it is said was given by the plaintiff to a Committee of the Federal Parliament. I was referred to the provisions of the Parliamentary Privileges Act 1987 and to a decision of the Full Court of the South Australian Supreme Court in Rann v Olsen [2003] SASC 83: 172 ALR 395. 19 All I will say about this matter at this stage is that issues are raised about the admissibility in evidence of material directed to establishing that the plaintiff did mislead a Committee of the Federal Parliament, and more importantly, as that really seems to be beyond dispute, what are the consequences of inadmissibility of that material. 20 If I were to rely upon that alone as a reason for striking out any of the documents under consideration, I would need to hear further argument and give more extensive consideration to the matters raised, but I do not find it necessary to determine that matter because I have come to the view, for the reasons I have already given, that the documents should be struck out, and that is what I propose to do. 21 The orders I make are that the defence filed on 22 April 2004, the cross-claim filed the same date, and the (Amended) defence filed 4 June 2004 be struck out. 22 As to the defence, it was properly and fairly conceded on behalf of the plaintiff that the defendant should have the opportunity to re-plead, and I grant that leave. I make no comment and no order about re-pleading the cross-claim. That is because no cause of action is disclosed in the cross-claim, and there is nothing of substance that can be properly re-pleaded. 23 The plaintiff seeks an order for costs. The defendant has argued against an order for costs but argued that on the basis of leniency. Leniency is not a proper consideration in relation to an order for costs of a civil matter. The ordinary and proper course is that a successful litigant is to be awarded the costs of his victory and I propose to follow that course. 24 I order the defendant to pay the plaintiff's costs. Any amended defence is to be filed and served on or before 1 October 2004. ********** Last Modified: 12/21/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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