New South Wales Supreme Court CITATION : Gregory Frawley v The State of New South Wales [2007] NSWSC 1379 HEARING DATE(S) : 19 November 2007 - 27 November 2007 JUDGMENT DATE : 29 November 2007 JUDGMENT OF : Berman AJ DECISION : The Plaintiff was not allowed to put its case on the basis that there was an alternative means of establishing liability for publication from that which had already been put to the jury. CATCHWORDS : Defamation - Publication - Internet - Acceptance of responsibility - Pleadings - Whether Plaintiff should be able to present its case to the jury on a new basis. LEGISLATION CITED : Defamation Act 1974 Urbanchich v Drummoyne Municipal Council (1991) Aust Tort Reports 81-127 CASES CITED : Byrne v Dean [1937] 1 KB 818 Webb v Bloch (1928) 41 CLR 331 PARTIES : Gregory Frawley State of New South Wales FILE NUMBER(S) : SC 20243/05 COUNSEL : P. M. Sibtain - Plaintiff T. Molomby SC; K. Andronos - Defendant SOLICITORS : MacMahon Associates PtyLtd - Plaintiff Crown Solicitor - Defendant JUDGMENT 1 Towards the end of a jury trial conducted under s7A Defamation Act 1974 the Defendant raised an issue with the contents of the address made on behalf of the Plaintiff. The Defendant submitted that Counsel for the Plaintiff, Ms Sibtain, had, in her address, raised for the first time an alternative basis for the Defendant's liability which had not been pleaded, and about which it had not been given notice. I heard argument and ruled that the Plaintiff was not allowed to put its case on the basis that there was an alternative means of establishing liability from that which had been already put to the jury. In order to inconvenience the jury as little as possible I indicated that I would give my reasons for that ruling later. These then are those reasons. 2 The trial was an unusual section 7A trial in that there was a significant issue as to whether the Defendant published the material about which the Plaintiff complained. The Plaintiff was a teacher at a high school. He became aware of the existence of an Internet site, two pages of which he saw as defamatory to him. He did not suggest that any one on behalf of the Defendant created the website or the relevant pages. He alleged that the Department of Education published the material on computers owned by it when people accessed the web pages on the school's computer equipment. 3 This meant that attention had to be paid to the circumstances in which, for the purposes of defamation, a person can be said to have published material of which he or she was not the author. In particular, attention focused on whether the Defendant published the material in circumstances where it failed to act to prevent the material being downloaded and read on school computer equipment. The Test of Liability for Publication in Urbanchich v Drummoyne Municipal Council 4 At the commencement of the trial, Mr Molomby SC who, with Mr Andronos appeared for the Defendant, and Ms Sibtain accepted that the relevant principles of application in the present case were to be found in a decision of Hunt J (as he then was) in Urbanchich v Drummoyne Municipal Council (1991) Aust Tort Reports 81-127. In that case the Plaintiff complained about potentially defamatory posters placed in bus shelters under the control of the Urban Transit Authority of New South Wales ("the UTA"). The Plaintiff told the UTA about the posters and asked that they be removed but they remained where they were for some time thereafter. Hunt J ruled; "... proof that [the UTA] - (i) had been notified of the existence of the posters and of the Plaintiff's complaint concerning their contents, (ii) had been requested to remove the posters, (iii) had the ability to remove those posters or to obliterate their contents, and (iv) had failed within a reasonable period to do so, is capable of amounting to the publication by [the UTA] of those posters provided that the jury also draws the inference from such conduct that [the UTA] had in fact accepted a responsibility for the continued publication of those posters." 5 In Urbanchich Hunt J referred to Byrne v Dean [1937] 1 KB 818, a case concerning some defamatory material which had been placed upon a notice board in a club. Again there was no suggestion that the Defendants in that case had placed the material where it could be seen by others, so again the Court examined the situation where a person could become liable in defamation where inactivity resulted in material being able to be read by others. 6 After considering Urbanchich and Byrne v Dean, and after receiving submissions from the parties, I prepared a document (which became MFI 14) headed "The Meaning of Published" which I gave to the jury, with the consent of the parties, before addresses commenced. That document was in the following terms: Questions 1 and 6 ask you whether the Plaintiff has established that the Defendant published the 2 pieces of material. The answer to that question depends on whether the Defendant was accepting responsibility for the continued publication of the 2 pieces of material. That is, was the Defendant in some way consenting to, or approving, or adopting, or promoting, or ratifying the continued publication of those statements. By "continued publication" I mean publication of the statements after being put on notice of their content. You would find that the Defendant published the material about which the Plaintiff complains if you are satisfied that the Defendant's behaviour in allowing continued access by teachers and/or students to the website on its equipment, after being put on notice of the contents of the 2 pieces of material, demonstrates that the Defendant was accepting responsibility for the continued publication of the statements of which Mr Frawley complains. That is the ultimate test which you must apply. Has the Plaintiff proved to you that the Defendant's behaviour demonstrated that it was accepting responsibility for the continued publication of the statements of which Mr Frawley complains? In looking at that ultimate question you are entitled to ask whether the evidence establishes that the Defendant was in some way consenting to, or approving, or adopting, or promoting, or ratifying, the continued publication of those statements, that is, publication of the statements after being put on notice of their content. Relevant to your decision as to whether the Defendant accepted responsibility for the continued publication of those statements is what the evidence establishes that the Defendant did, and could have done, after being made aware of their existence. The Test of Liability for Publication in Webb v Bloch 7 MFI 14 deals with one way in which a person can become liable in defamation for publishing material of which that person was not the original author. In the present case counsel and I referred to this head of liability as "Urbanchich liability". However there is another way that liability can be established. In Webb v Bloch (1928) 41 CLR 331 Isaacs J quoted with approval the following statement of law; "'The term published is the proper technical term to be used in the case of libel, without reference to the precise degree in which the Defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to its existence for the purpose of being published, his instrumentality is evidence to show a publication by him.'" (italics in the judgment of Isaacs J) 8 Thus whilst Urbanchich and Byrne v Dean concern publication through inactivity Webb v Bloch concerns publication by a person who does something intentionally lending his or her assistance to the dissemination of material. 9 In argument the parties proceeded on the basis that where the Plaintiff relied on an omission to act the test was to be found in Urbanchich and Byrne v Dean and was accurately set out in MFI 14. The parties also agreed that where the Plaintiff relied on publication through some action taken by the Defendant, the appropriate test was to be found in Webb v Bloch, namely that the person had intentionally lent his or her assistance to the publication. The Defendant Claims it had no Notice 10 The issue which was raised by the Defendant towards the end of the trial, indeed part way through the Plaintiff's address, was whether the Plaintiff was entitled to rely on actions taken by the headmaster of the school which were said by the Plaintiff to amount to him intentionally lending his assistance to the publication of the two pages from the website. It was said, for example, that by the headmaster telling other teachers to be vigilant about whether students were accessing those web pages on school equipment, he was intentionally lending his assistance to the publication of those web pages to those very teachers. 11 The Defendant's complaint was simple. The Defendant claimed that it had no notice of this alternative means of the Plaintiff proving publication and that it was prejudiced by the matter being raised, for the first time, after evidence had closed and the Defendant had addressed. 12 It has to be said that the position of the Plaintiff seems to have changed from that asserted on the Friday afternoon when the matter was first raised by the Defendant to that asserted the following Monday when the Court sat early in order to minimise inconvenience to the jury. Over the intervening weekend the Plaintiff appeared to have retreated somewhat from the position it earlier advanced and even after oral submissions began on the Monday morning there appear to have been a further modification of the Plaintiff's position. 13 However a common thread throughout every position taken by the Plaintiff was that it had given adequate notice to the Defendant of its intention to rely on positive actions taken by representatives of the Defendant. Was the Defendant Given Notice? – The Statement of Claim 14 Let's examine the question of notice by starting at the beginning. (Although the Plaintiff complained of two matters, the way in which the Plaintiff said that the Defendant published those two matters was identical and so it is not necessary to differentiate between the two publications). The Statement of Claim filed on behalf of the Plaintiff refers to publication of the material in these terms: 4. Between about 27 July 2004 and 30 July 2004, the Defendant published on its computers at the High School the matter set out in Schedule "A" hereto ("the first matter complained of"). Particulars of Publication (i) On about 23 July 2004 the first matter complained of was published on a website. (ii) The first matter complained of was published continuously from 23 July 2004 until 30 July 2004. (iii) On about 27 July 2004 the Principal of the High School was made aware of the site and the nature of the material contained in the first matter complained of. (iv) The Principal was asked to remove the material of the first matter complained of or takes steps to ensure that it was not viewed. (v) Between 27 July 2004 and 30 July 2004 the Principal took no steps to remove material complained of or to ensure that the material was not viewed on the High School's computers. (vi) The Principal thereby made himself responsible for the publication of the first matter complained of on the computers operated at the High School. (The pleading in relation to the second matter complained of is relevantly identical) 15 There are some matters it is important to note at the outset. It is said in the Statement of Claim that the way in which publication came about was the circumstance that "the principal took no steps..." to do things which he could have done and that "the principal thereby made himself responsible for the publication …on the computers operated at the high school". 16 There is no suggestion in the Statement of Claim, (or the amended Statement of Claim later filed which repeated the paragraph I have already quoted), that the principal also published the material by intentionally lending his assistance to its dissemination. In other words the Statement of Claim pleads publication in the Urbanchich sense rather than in the Webb v Bloch sense. 17 It can be seen that the particulars of publication allege in clear and unmistakeable terms that publication by the Defendant came about because "the principal took no steps" to do things he could have done which would have prevented the material being viewed on the high school's computers. No action of the principal, or anyone else acting on behalf of the Defendant is alleged either specifically or by implication. 18 The fact that in the Statement of Claim the words "the Principal thereby made himself responsible for the publication…" could only be intended to suggest to the Defendant that, although as a matter of law publication can occur when someone takes steps intentionally, the Plaintiff was not pursuing that avenue of publication. The Interlocutory Proceedings Confirm the Defendant's Understanding 19 Nothing which occurred during the course of these proceedings up until the time at which the Defendant complained during the Plaintiff's final address, did or should have given the Defendant any notice at all that the Plaintiff was going to seek to prove its case on an alternative basis from that set out in the Statement of Claim. Indeed the approach to be followed by the Plaintiff as set out in the Statement of Claim was confirmed during the interlocutory stages of the present proceedings. 20 On 5 September 2005, the Defendant sought particulars. Paragraphs 9 and 27 of the request ask respectively in relation to each of the matters complained of: I assume that the allegation that the Principal "thereby made himself responsible" indicates that the matters referred to in particulars 4(1)- (v) are the sole basis upon which the Defendant is alleged to be liable for publication of the [first/second] matter complained of. Please confirm that this is the case. If there is some other basis upon which it is alleged that the Defendant is so liable, please specify. [Emphasis added] 21 On December 6 2005, the Plaintiff responded: No. Deputy Principals, Mr Rob Craig and Mr John Reddington were informed of the nature of the site and asked to close it down. Further, the New South Wales Department of Education and Training's Help Line were made aware of the site on or before 27 July 2004 and could have arranged for the site to be closed down or alternatively issued a direction that the computers at HAHS not to be accessed. 22 If the Plaintiff had actually put his case on the basis now asserted, it would properly have been articulated in answer to this question. The Plaintiff was expressly invited on 5 September 2005 to raise further bases of liability. He availed himself of that opportunity on 6 December 2005. But he did not make the claim now asserted on that occasion. 23 Later, on 21 March 2006, there was a Part 67 Rule 12A hearing before Simpson J, (see Frawley v The State of New South Wales [2006] NSWSC 248). The Defendant sought orders for either the summary dismissal of proceedings or alternatively that the Statement of Claim be struck out. Argument, and indeed judgment, proceeded on the basis that the Plaintiff's claim was confined to liability on the Urbanchich basis. The Plaintiff at no stage responded to the Defendant's application before Simpson J by suggesting that even if the Plaintiff failed on the Urbanchich basis it could succeed on the Webb v Bloch basis. That is not to say that Webb v Bloch was not referred to in the submissions before Simpson J, however references to that case, by the Plaintiff, were in the context of the general principles of liability for publication and at no stage was Webb v Bloch raised as authority for an alternative means of proving liability. The Course of the Present Hearing Confirms the Defendant's Understanding 24 That brings us to the present hearing. Because it was anticipated that the focus of the evidence would be on the question of whether the Defendant was liable for material on the website of which it was not the author, the parties considered it appropriate that I give the jury a direction, before the Plaintiff's opening address, as to the way in which they could find that the Defendant published the material. Of course the direction I gave to the jury at that stage was first discussed with, and agreed to by, counsel. 25 This is what I told the jury at the outset of the trial, before any evidence was called, and indeed before Ms Sibtain opened her case: Now Mr Frawley is suing about the contents of a website which he says defamed him. He says that the Department published the material on the website. Now that's not publication in the ordinary sense of the word. There's no suggestion that the Department or any of its employees created the website or created the offensive content on the website. Mr Frawley doesn't say that, and he doesn't say that the Department or its employees had any control over the website. What Mr Frawley does say is that the Department or its employees had control over its publication to staff and students at Hurlstone High School on departmental equipment. I'll repeat that because it's important. What Mr Frawley does say is that the Department or its employees had control over its publication to staff and students at Hurlstone High School on departmental equipment. What he says is that the School Principal was told about the website and told that the website was there, was told about its offensive content and that the School Principal took no action to remove the material from the website or to ensure that it wasn't viewed on the school's computers. That's the particular point on which I want to say something to you now so that you can keep in mind what I'm saying when you listen to the evidence. So it's not a case of you getting to the evidence at the end of the case and I tell you this and you say I wish I told you at the beginning I would have listened to the evidence from a different point of view. That's why I'm saying what I'm about to say to you now so that you can keep it in mind as you hear the evidence. The question at the end of all of this on this issue is whether you are persuaded from the Defendant's behaviour in allowing continued access by teachers and/or students to the website on its equipment and being on notice of that by doing that the Department was accepting the responsibility for the continued publication of the statements of which Mr Frawley complains; that is, was it in some way consenting to or approving or adopting or promoting or ratifying the continued publication of those statements. 26 It is important that I emphasise that, with the consent of the Plaintiff, I told the jury, as I have set out above, "the question at the end of all of this on this issue is whether you are persuaded from the Defendant's behaviour in allowing continued access … that the Department was accepting responsibility for the continued publication of the statements…" 27 Important in considering whether the Defendant had any notice of the Plaintiff's change of tack is the form of the questions posed for the jury, those questions having been agreed upon between the parties. As Mr Molomby submitted, if the Plaintiff was going to rely on publication in the Webb v Bloch sense then the questions posed for the jury would have been quite different. This is because it would be necessary at any later hearing for the judge to decide whether the defence of qualified privilege was made out if the jury found publication in the Webb v Bloch sense. In other words it would not be good enough to ask the jury whether publication was proved. In order to decide whether the defence of qualified privilege arose it would be necessary to ask the jury whether they found publication proved in the Urbanchich sense, the Webb v Bloch sense or both. Yet the questions which were agreed between the parties, and which were provided to the jury in written form, do not ask in what way publication was proved. Clearly the Defendant was entitled to assume therefore, from the Plaintiff's agreement as to the appropriateness of the questions provided to the jury, that only one means of proving publication was relied on by the Plaintiff. 28 Part way through the evidence I handed to counsel a draft of a document which I intended to give to the jury during my summing up, unless there was objection, setting out the meaning of "published" in the circumstances of this case. Submissions were made by both sides which led to me preparing an amended version which was provided to counsel. The only amendment to that document suggested by either party was a correction of grammar proposed by Mr Molomby. Thus the Plaintiff accepted the appropriateness of the direction set out in MFI 14. (set out in para 6 above) which was given to the jury at the close of evidence. 29 Again it is important to note some aspects of that document. It is sufficient perhaps to emphasise that what I described as the ultimate test, which I took from Urbanchich, was "has the Plaintiff proved to you that the Defendant's behaviour demonstrated that it was accepting responsibility for the continued publication of statements of which Mr Frawley complains?" and there was no suggestion from the Plaintiff even at this late stage of the proceedings, when I gave MFI 14 to the jury after the evidence had closed, that the Plaintiff would also seek to make out a case based on the Principal doing things which demonstrated an intention by him to publish the relevant material. 30 The Defendant then addressed. Mr Molomby's submission concerning issue of publication were made with reference to the test as set out in MFI 14. 31 When Ms Sibtain addressed, she raised, for the first time, the alternative way of the Plaintiff proving publication that I have mentioned above, that is that by doing certain things including telling staff members at the school to be vigilant about whether students were accessing the relevant website, the Principal was taking positive actions intending to publish the contents of the web pages to staff members. 32 Soon after Ms Sibtain began that part of her address I gave the jury a short break so that they could stretch their legs and refresh themselves and it was at that stage that Mr Molomby raised the issue that this judgment addresses. The Plaintiff's Submissions Concerning Notice to the Defendant 33 In response to the suggestion from the Defendant that it had not been put on notice of the alternative means of proving publication on which the Plaintiff sought to rely, the Plaintiff took me to a number of aspects of the history of the present matter including its Reply to Notice of Objections to Particulars, the argument before Simpson J, the Plaintiff's opening in the present trial and discussions that I had with Counsel concerning legal directions on publication. I will not quote the relevant passages but will say this: Ms Sibtain could point to no explicit statement which suggested that the Defendant was put on notice, and even if it is just possible, giving a wide interpretation to the matters relied on by the Plaintiff, and following considerable close analysis of what was inferred in the statements made by the Plaintiff, to see a hint that the Plaintiff was attempting to modify the position it had clearly stated in its Statement of Claim, then I am not satisfied that the Plaintiff should be allowed to do what it now seeks to do. 34 The question is whether the Defendant was given adequate notice of the case it had to meet. I do not find that notice, if indeed it was given, was adequate in any sense of that word. The Defendant was entitled to assume that if the Plaintiff wished to modify the clear and unambiguous way in which it was planning to present its case, as set out in the Statement of Claim, it would have provided such notice in equally clear and unambiguous terms. A Defendant should not have to wade through every statement made by a Plaintiff during the course of correspondence and interlocutory proceedings leading up to a trial to identify whether, by subtle inference, the Plaintiff is alerting him or her of a significant change in approach. No Adequate Notice was Given 35 For the reasons that I have given above the Plaintiff did not give to the Defendant particulars which were necessary to enable the Defendant to identify the case that it had to meet. I am satisfied that the Plaintiff gave no notice to the Defendant, until part way through Ms Sibtain's final address to the jury, that it intended to rely on publication in the Webb v Bloch sense as well as in the Urbanchich sense. 36 The Defendant claimed it was prejudiced by this late change of tack. It suggested that it would have investigated matters differently, called different evidence, asked different questions and addressed differently if it had known that the Plaintiff was proposing to rely on two avenues to establish publication rather than just one. 37 The Defendant says that it would suffer significant prejudice in the event that the Plaintiff was allowed to present the alternative basis of liability and that it would have done things differently if it was properly on notice. These included interviewing teachers who were shown to have accessed the relevant material on school equipment, and obtained further information from the departmental computers to show the steps taken by those who accessed the web pages to get to those pages. It also says that it would have cross-examined the Plaintiff and a witness called on his behalf differently, considered calling further witnesses and of course addressing the jury on the newly raised allegation. I accept each of these matters put to me by the Defendant, indeed they were not seriously challenged by the Plaintiff. 38 Of course I have power to allow an amendment to the way the Plaintiff presents its case at any stage of the proceedings and all necessary amendments should be made for the purpose of determining the real questions raised in proceedings, but in determining what is in accordance with the dictates of justice the position of the Defendant, who I am satisfied was taken by complete surprise must be borne in mind. I was satisfied that the prejudice which would be suffered by the Defendant was so significant, and the change of tack by the Plaintiff so late that justice would not be done if the Plaintiff was allowed to present its case on the alternative basis it raised during final address to the jury. 39 For those reasons I ruled that the Plaintiff was not allowed to put its case on the basis that there was an alternative means of establishing liability for publication from that which had already been put to the jury. As a consequence the remainder of Ms Sibtain's address to the jury on the issue of publication proceeded on the basis that the test was as set out in MFI 14. 40 As things turned out the jury was not satisfied that the Defendant published either matter complained of and so judgment was entered for the Defendant. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.