FEDERAL COURT OF AUSTRALIA
Crosby v Kelly [2013] FCA 1343
IN THE FEDERAL COURT OF AUSTRALIA | |
| First Applicant MARK TEXTOR Second Applicant | |
AND: | Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The respondent serve a draft amended defence on the applicants on or before 24 January 2014 in a form consistent with the reasons for judgment published on 11 December 2013.
2. The respondent pay 50% of the applicants’ costs of the interlocutory application filed on 20 September 2013.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY | |
GENERAL DIVISION | ACD 70 of 2011 |
BETWEEN: | LYNTON CROSBY First Applicant MARK TEXTOR Second Applicant
|
AND: | MICHAEL KELLY Respondent
|
JUDGE: | RARES J |
DATE: | 11 DECEMBER 2013 |
PLACE: | SYDNEY |
REASONS FOR JUDGMENT
1 The applicants, Lynton Crosby and Mark Textor, have applied by interlocutory application filed on 20 September 2013 to strike out certain parts of the amended defence of the respondent, Michael Kelly, in these defamation proceedings. Dr Kelly has resisted that application.
2 The matter complained of consisted of a tweet sent on 1 October 2011 by Dr Kelly when he was a Member of the House of Representatives. A tweet is an electronic message that a person with a Twitter account communicates to “followers” using Twitter’s software and platform. Dr Kelly allegedly sent the tweet to those persons who were his Twitter “followers” in each State and Territory of the Commonwealth, including the Australian Capital Territory, as well as to the followers of both a journalist, Latika Bourke, and of Mr Textor. The tweet was in the following terms:
“@MikeKellyMP @latikambourke@markatextor always grate to hear moralizing from Crosby, Textor, Steal & Gnash. The mob who introduced push polling to Aus.”
3 Relevantly, Mr Crosby and Mr Textor claimed that, in accordance with s 120 of the Civil Law (Wrongs) Act 2002 (ACT), the matter complained of, in its natural and ordinary meaning, was defamatory of each of them. Each particularised two imputations, but only the first is relevant on the present application (the applicants’ imputations). These imputations were as follows:
“4(a) [Mr Crosby], together with … [Mr Textor], introduced to Australia the morally disreputable practice of pretending to conduct a genuine and objective opinion poll while actually disseminating, to participants in the supposed poll, material unfairly slanted against those persons or groups to whom the conductors of the supposed poll (or those commissioning it) are opposed, with a view to surreptitiously and dishonestly prejudicing participants against those persons or groups (“push polling”).
…
5(a) [Mr Textor], together with … [Mr Crosby], introduced to Australia the morally disreputable practice of push polling.”
4 The imputations currently pleaded in the amended statement of claim are different from the imputations that each of Mr Crosby and Mr Textor had pleaded when they commenced these proceedings on 24 November 2011. Dr Kelly brought an interlocutory application to strike out the proceedings in December 2011 on the ground that the Court had no jurisdiction to hear and determine them. A question as to the Court’s jurisdiction was reserved for the consideration of a Full Court under s 25(6) of the Federal Court of Australia Act 1976 (Cth). Robertson J, with whom Bennett J and Perram J agreed, explained the history of the question in his judgment delivered at the second hearing in the Full Court in Crosby v Kelly (2012) 203 FCR 451 at 454 [11]-[14].
5 On 19 April 2012, at an initial hearing in the Full Court on the jurisdictional challenge, the Full Court directed Dr Kelly to file his defence and adjourned the hearing. In that initial hearing, in the Full Court raised the question of whether Dr Kelly intended to rely on a defence of qualified privilege of freedom of communication on government or political matter or would otherwise rely on his status as a member of the Parliament. The Court was concerned that if he did so, the matter would be likely to have attracted the Court’s jurisdiction in any event, because it would then be a matter arising under the Constitution or involving its interpretation, and thus would be a matter in the original jurisdiction of the Court under s 39B(1A)(b) of the Judiciary Act 1903 (Cth). Dr Kelly’s then counsel informed the Court that while he did not think that his client would raise such a defence, he had no instructions.
6 In May 2012, Dr Kelly filed a defence that denied that the matter complained of was capable of conveying, or conveyed, each of the imputations then relied on by Mr Crosby and Mr Textor, denied that each imputation was defamatory of either of them and further asserted that the matter complained of was substantially true. In the event, the Full Court held that the possible issues raised at the earlier hearing in relation to qualified privilege did not arise on that defence. They held that the matter was within the Court’s original jurisdiction conferred by s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).
7 The amended statement of claim was filed on 9 July 2013, after I heard argument on the form of the imputations that Mr Crosby and Mr Textor had proposed to plead. Dr Kelly filed a defence to the amended statement of claim on 25 July 2013. That defence pleaded that the matter complained of was substantially true, contextually true, published on an occasion of qualified privilege and an honest expression of opinion. Dr Kelly pleaded two contextual imputations were conveyed by the matter complained of, namely that each of Mr Crosby and Mr Textor “is a hypocrite”. Senior Counsel for Dr Kelly abandoned reliance on a third proposed contextual imputation in the proposed defence during the course of oral argument. He pleaded that the matter complained of was published by him solely under qualified privilege at common law, and not by reason of s 139A of the Civil Law (Wrongs) Act or in accordance with the principles identified in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. In support of his defence of qualified privilege, Dr Kelly relied on, among others, particulars that he had published the matter complained of for the information of its recipients, that he had an interest or social or moral duty to publish it to them, they being his followers, who had applied using the Twitter platform to receive matter published by him, and that they had an interest in having information on its subject matter conveyed to them or a common interest as his followers in its subject matter. He alleged that the matter complained of, by its very terms, related to, among others, the use of push polling techniques and elections for Parliament in Australia.
8 Following an exchange of correspondence before and after the filing of the present interlocutory application, Dr Kelly no longer seeks to justify imputation 4(a) that alleged that Mr Crosby introduced push polling to Australia. Dr Kelly then prepared a proposed amended defence and the argument at the hearing before me substantively centred around it as a refinement of the current defence.
Issues
9 Mr Textor sought to have the plea of justification in respect of imputation 5(a) struck out, both he and Mr Crosby sought to have the defence of contextual truth struck out and, if that failed, the particulars to that defence struck out or confined, and they both sought to have the defence of qualified privilege struck out on the basis that Dr Kelly, by filing his original defence without such a plea following the first hearing day in the Full Court, should not now be permitted to raise it.
The legislative scheme
10 The Civil Law (Wrongs) Act relevantly provided in Ch 9 that, except to the extent that that Act provided otherwise, it did not affect the operation of the general law in relation to the tort of defamation (s 118(2)) and:
“120 Single cause of action for multiple defamatory imputations in same matter
A person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than 1 defamatory imputation about the person is carried by the matter.
…
135 Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
136 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that–
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, 1 or more other imputations (contextual imputations) that are substantially true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.”
11 Those provisions and the rest of Ch 9 mirror the reforms brought when uniform Defamation Acts were enacted by each of the States and Territories of the Commonwealth in about early 2006.
Imputation 5(a)
12 During the course of argument, Senior Counsel for Dr Kelly abandoned some of the particulars in support of the plea of justification for imputation 5(a) and Senior Counsel for Mr Textor faintly argued that the balance of those particulars did not raise a sufficiently arguable basis for the plea. The remaining particulars asserted that Mr Textor was involved in introducing push polling into Australia by his activities in the period leading up to the 1994 election in the Northern Territory, when Dr Kelly alleged that the technique was first used in this country by the Country Liberal Party in that campaign and that Mr Textor was involved in this activity.
13 I am of opinion that those particulars identified sufficient and adequately precise facts, matters and circumstances which, if proved at trial, are capable of establishing that Mr Textor introduced push polling in Australia and the characteristics of that technique described in its definition in imputation 4(a).
Contextual truth – Messrs Crosby and Textor’s submissions as to imputations
14 Messrs Crosby and Textor argued that the contextual imputations, that each was a hypocrite, did not arise from the matter complained of. They argued that the matter complained of did not, convey and was not capable of conveying, such imputations. That was because, first, they contended that the actual words of the matter complained of tied the sting, including any suggestion of the hypocrisy, to the introduction of push polling. They argued that the contextual imputations were too general and that, in its natural and ordinary meaning, the word “moralising” in the matter complained of was neutral as to the nature of any moral position taken by the person the word described. They contended that that word meant debating moral questions without commitment to a position and that this meaning would not allow an ordinary reasonable reader to arrive at a meaning of hypocrisy, as being conveyed by the matter complained of. They argued that a hypocrite was a person who pretended that he or she was something the person was not and that a moraliser was a person who merely discussed moral questions that were neutral in themselves. They argued that the matter complained of merely attributed to each of them the introduction of push polling into Australia and that it did not suggest that this act was inconsistent with anything on which either had been “moralising”. They contended that Dr Kelly had used the word “moralising” at the beginning of the matter complained of without suggesting that they had put forward any moral position and that only the second half had criticised their introduction of push polling. Thus, they submitted, there was nothing to suggest, in the natural and ordinary meaning of the matter complained of, that either was a hypocrite for introducing push polling.
Contextual truth – consideration
15 The cause of action for defamation under s 120 of the Civil Law (Wrongs) Act creates a new statutory cause of action, but the legal concept it involves is based on the common law concept of an actionable wrong for the publication of defamatory matter about a person. Thus, the publication complained of must convey one or more defamatory meanings, or imputations, of and concerning the person (whom I will call “plaintiff”). So, at common law, and under the Act, and its analogues, a plaintiff ordinarily will allege the imputation or imputations of which he or she complains as particulars of his or her crucial allegation that the defendant published defamatory matter about him or her: Gately on Libel and Slander (11th ed: 2008 ) at [28.20]; see too Odgers on Libel and Slander (5th ed: 1911) at 115-116.
16 This understanding provides the context in which ss 135 and 136 operate, for each of those provisions entitles a publisher (or defendant) to allege, by way of defence, that a particular imputation is substantially true. The first of those defences, justification, is established by the defendant proving “that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true” (s 135). The second defence, contextual truth, also takes as its starting point “the defamatory imputations of which the plaintiff complains”. But s 136 operates differently to s 135. In order to establish the defence of contextual truth, the defendant must prove that:
the matter complained of carried one or more other defamatory imputations, in addition to those of which the plaintiff complains;
the contextual imputation(s) is or are substantially true; and
because of the substantial truth of the context imputation(s), the imputation(s) on which the plaintiff relies do not further harm his or her reputation.
17 The Act, like the common law, allows the plaintiff to identify the meaning(s), being the imputation(s), complained of so that the defendant, if he, she or it is prepared to, may justify each such asserted meaning. At common law, and under the Act, a defendant can justify each imputation complained of by the plaintiff and so secure a complete defence, or the defendant can justify partially; i.e. by justifying some, but not all of those imputations, and so mitigate the damages: see the learned discussion of the defence of partial justification by Levine J in Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89; cf esp at 108 [80].
18 The defence of contextual truth is a statutory supplement to enable a defendant to prove a complete defence based on the truth of a more substantial sting in the publication than other sting(s) that the plaintiff has chosen to complain of but which the defendant may not be able to prove to be true substantially. The first statutory defence of contextual truth was created in s 16 of the Defamation Act 1974 (NSW) (the 1974 Act) on the suggestion of the New South Wales Law Reform Commission in its 1971 Report on Defamation (LRC 11). The Commission saw the new defence as specifically addressing the situation “where the plaintiff sues on such imputations only as cannot be proved to be true” (LRC 11 at 94 [74]), a situation exemplified in Plato Films Ltd v Speidel [1961] AC 1090. There, the problem at common law was neatly coined by Lord Denning in his speech as follows ([1961] AC at 1142-1143):
“But then Mr. Gardiner says that there are cases where not even a partial justification is open to the defendant, because of the way the plaintiff frames his action. He took this case. Suppose a newspaper said of a man: “He has murdered his father, stolen from his mother and does not go to church on Sundays,” and the plaintiff brings a libel action complaining only of the imputation that he does not go to church. The defendants, said Mr. Gardiner, cannot justify the major charges of murder and theft, because the plaintiff has not complained of them. They cannot give evidence of them in mitigation of damages because they are only specific instances. What is, then, the position? It would, says Mr. Gardiner, be most unjust that the plaintiff should get damages for the minor matter when, if the jury had had the whole before them, they would have given him nothing. I agree it would. But the answer is that the defendants, who had produced such a piece of bathos, would be entitled, in the apt words of Lord Coke, to “have showed all the words and the coherence of them,” see Brittridge's Case [(1602) 4 Co Rep 18b, 19b]: and the jury would no doubt only have given one farthing, as they did in Cooke v Hughes [(1824) Ry & M 112]. In those cases the words so “cohered together” that it was necessary for the jury to see all the words in order to make a correct appreciation of their impact.” (emphasis added)
19 Thus, not infrequently, a plaintiff will particularise defamatory meanings that are less damaging than others conveyed in the same publication in the hope that the defendant will not be able to prove the truth of any of them. But the plaintiff cannot now so confine, at will, the field of forensic battle by his or her choice of imputations complained of because of the statutory defence of contextual truth. Also, a plaintiff will want to avoid pleading too wide an imputation when a narrow one will do. The dangers of doing so were illustrated in Lord Loreburn’s speech in Maisel v Financial Times, Lim (No 1) (1915) 84 LJKB 2145 at 2147-2148 and the pungent incisiveness of Scrutton LJ’s reasons in MacGrath v Black (1926) 95 LJKB 951 at 953-954.
20 Dr Kelly relied on the majority reasoning in John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [17]-[20] per Spigelman CJ and at [107]-[113] per Ipp JA for the proposition that s 16 of the 1974 Act was, as the Chief Justice said at [20]:
“directed to a situation in which the same publication conveyed imputations which differ in their character, [and are] not merely a different way of formulating the same imputation at a higher level of generality. The examples outlined in Plato Films [[1961] AC at 1142] are the former.”
21 However, that reasoning is of little assistance because the passage of the uniform Defamation Acts created a new legal framework in which the new statutory defences of justification and contextual truth work, as McColl JA, with the agreement of Beazley and Giles JJA, recognised in Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157 at 177-179 [75]-[86]. Her Honour observed that the language of s 26 of the Defamation Act 2005 (NSW), which is the exact analogue of s 136 of the Civil Law (Wrongs) Act, is, first, different to s 16 of the 1974 Act and, secondly, set in a different statutory context. Now it is the publication of defamatory matter that is basis of a cause of action in defamation unlike the position under s 9(2) of the 1974 Act where the basis was the publication of a defamatory imputation. She concluded that (81 NSWLR at 179 [86]):
“In summary, a defendant seeking to justify the defamatory matter under the 2005 Act may take the following courses of action, some statutory, some based on the common law:
(a) prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true: s 25;
(b) prove that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuance imputations which are substantially true;
(c) to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, rely on those proved to be true in mitigation of the plaintiff’s damages: partial justification; and
(d) to the extent the defendant cannot prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, prove that it carries contextual imputations that are substantially true, by reason of which the defamatory imputations do not further harm the reputation of the plaintiff: s 26.”
22 It may well be that a combination of pleas of justification and contextual truth under ss 135 and 136 (or their analogues) can result in the defendant being able to prove that some but not all of the plaintiff’s imputations are substantially true and that the defendant’s contextual imputations are also substantially true with the result that the remaining plaintiff’s imputations, that have not been justified, do not further harm him or her. Such a result may be consonant with the intention of the uniform legislation. However, this point was not argued and it is not necessary to decide it in this application.
23 The decision of Spigelman CJ and Ipp JA in Jones [2004] NSWCA 205 that a general contextual imputation cannot meet a pleaded more specific imputation under the 1974 Act is not binding on the construction of s 136. It concerned a differently worded section in a different statute and context: Kermode 81 NSWLR 157; see too McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at 661-662 [40]-[43] per McHugh, Gummow and Heydon JJ.
24 I am of opinion that Hodgson JA correctly explained in Jones [2004] NSWCA 205 at [79] (and see too at [89], with Ipp JA’s agreement at [115]) the position at common law as follows:
“Maisel [84 LJKB 2145] supports the proposition that, where a plaintiff in a defamation proceeding alleges to the effect that the defendant’s publication meant both that the plaintiff had committed a particular discreditable act and that the plaintiff was of bad character, the defendant can put on a defence justifying the latter allegation by reference to other conduct of the plaintiff suggestive of the relevant bad character, which the defendant can then seek to prove at the trial. To similar effect is the case of MacGrath v Black (1926) 95 LJKB 951. This is because, at common law, where a libel contains several charges, a defendant can justify some only and thereby mitigate damages: see Gatley on Libel and Slander (7th edition) [1045]; Sutherland v Stopes [1925] AC 47 at 78; Plato Films Ltd v Speidel [1961] AC 1090 at 1141-42. The part justified must be severable from the rest, but the test of severability seems not to be very exacting: Plato Films at 1141-42, Goody v Oldham Press Ltd [1967] 1 QB 333 at 340.” (emphasis added)
25 I reject the argument of Messrs Crosby and Textor that the applicants’ imputations preclude Dr Kelly being able to rely on the contextual imputations of hypocrisy. I am satisfied that , first, the matter complained of is capable of conveying an imputation that each applicant is a hypocrite and, secondly, that this imputation is not the same as the applicants’ imputations and should not be disallowed on the basis of the reasoning of Spigelman CJ and Ipp JA in Jones [2004] NSWCA 205 which Simpson J appeared to have followed in Ange v Fairfax Media Pty Ltd [2010] NSWSC 645 at [55]-[59]. However, her Honour did not refer to the opposite conclusion reached by Hodgson JA and Ipp JA as to the availability of the general imputation as a defence at common law or to the different statutory language or other considerations subsequently discussed in Kermode 81 NSWLR 157.
26 The matter complained of used the word “moralising” in relation to each of Mr Crosby and Mr Textor in juxtaposition to its references to “Steal & Gnash. The mob who introduced push polling to Aus”. The ordinary and natural meaning of:
“moralising” includes:
“The discussion of moral questions or aspects; (now) esp. the action of making moral judgments; an instance of this” (Oxford English Dictionary online; sense 2)
“moralise” includes:
“1 intr indulge in moral reflection, or talk; pass moral judgment
2 tr: interpret morally; …” (Australian Concise Oxford Dictionary 3rd ed)
“verb(i) 1 to make moral reflections
verb(t) 2 to explain in a moral sense, or draw a moral from” (Macquarie Dictionary online)
“1 (intr) to make moral pronouncements
2 (tr) to interpret or explain in a moral sense” (Collins English Dictionary: Australian Edition)
“hypocrite” includes:
“One who falsely professes to be virtuously or religiously inclined; one who pretends to have feelings or beliefs of a higher order than his real ones; hence generally, a dissembler, pretender” (Oxford English Dictionary online)
“someone who feigns virtue or piety; a pretender” (Macquarie Dictionary online)
(bold emphasis added)
27 In accordance with the principles in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164A-167G per Hunt CJ at CL with whom Mason P and Handley JA agreed, I am of opinion that the ordinary reasonable reader would be capable of understanding the matter complained of to convey that each applicant expressed moral views about matters that were different from what they actually did: i.e. their actual behaviour, an example of which was their introduction of push polling to Australia. In other words, the meaning that could be conveyed to the ordinary reasonable reader was that each of Mr Crosby and Mr Textor was a hypocrite. Accordingly, the matter complained of is capable of conveying the contextual imputations.
28 Next, the contextual imputations convey a different, and potentially broader, sting than the applicants’ imputations. The parties did not make any submissions that the applicants’ imputations be considered with the other imputations pleaded by Mr Crosby and Mr Textor (i.e. that each, together with the other, engaged in stealing). I have assumed that, for the purposes of deciding this interlocutory application, the parties accepted correctly that this was a question for trial. The applicants’ imputations treat their introduction of the practice of push polling as the disreputable act or condition conveyed by the matter complained of. In contrast, the contextual imputations treat their public conduct, in taking pretended or feigned moral stances but acting inconsistently with such stances, as the disreputable act or condition. Thus, the contextual imputations concern a substantively different subject from that in applicants’ imputations, although they may have areas of overlap. It follows that the contextual imputations are “other imputations” within the meaning of s 136(a) and would be available at common law: Jones [2004] NSWCA 205 at [79] and [101] per Hodgson JA, [115] per Ipp JA agreeing.
29 For these reasons, the contextual imputations should not be struck out.
The particulars supporting the contextual imputations
30 The particulars in schedule 2 alleged that:
Mr Crosby was a former Federal director of the Liberal Party of Australia and asserted that he knew of the matters alleged to support Dr Kelly’s plea of justification of imputation 5(a) pleaded by Mr Textor referred to at [12] above;
Mr Textor had published an article on 1 October 2011 entitled “Tea and civility: manners maketh the leader” in the Sydney Morning Herald newspaper and website and that he also posted a link to it on his Twitter feed @markatextor;
Mr Textor’s article had called, in effect, for civil discussion in Australian politics but did not refer to the applicants’ techniques and strategies that they had used from 2002 in their business, Crosby Textor Research Strategy Pty Limited, and in their previous businesses;
after the publication of the matter complained of, Mr Textor had published a derogatory tweet on his Twitter account referring to another political commentator in gross language;
two specific instances of conduct by Mr Textor in April 1993.
31 The next section of the justification particulars appeared to be directed against Mr Crosby asserting that he had worked closely with the former Prime Minister, the Hon John Howard, during the Liberal Party’s 1996, 1998 and 2001 election campaigns. It gave extensive but generalised particulars about the nature of those campaigns and incidents that arose within them, occasionally making an indefinite reference to a role that Mr Crosby and Mr Textor may have played. Those particulars covered over three pages of close type. For example, in discussing the events of August and September 2001, when the Norwegian ship, MV Tampa, rescued more than 400 asylum seekers from a distressed fishing vessel northwest of Australia, the particulars asserted, among other matters:
“The Liberal Party exploited these events in its campaign advertising, statements and speeches, over which [Mr Crosby] had influence.”
32 However, there was no detail at all of what the alleged influence was or what Mr Crosby did. Finally, there were four further particulars, namely that:
in September 2004 Mr Textor had characterised dishonesty “as acting essentially in an inconsistent way” and distinguished it from telling untruths about issues that did not resonate with the voters;
Mr Textor had been chief strategist for the then Leader of the Opposition, the Hon Tony Abbott MP, and the Liberal Party and created Mr Abbott’s election slogan for the 2010 Federal Election campaign;
Mr Crosby and Mr Textor had “conducted themselves in a similar way in elections in New Zealand and the United Kingdom held in those countries since 2002”;
“the respondent will provide further particulars for schedule 2 after discovery and interrogatories”.
33 Mr Crosby argued that the particulars contained no material capable of proving the truth of the contextual imputation that he was a hypocrite. Mr Crosby and Mr Textor argued that the particulars in schedule 2 of the defence (which were identical to those in the proposed amended defence) were of such sweeping breadth and lack of specificity that they failed to conform with the common law rule that a defendant must specify the particulars of truth relied on with the same precision as in an indictment: Wootton v Sievier [1913] 3 KB 499 at 503; Godman v Times Publishing Co Ltd [1926] 2 KB 273, 282-283, 286-287.
34 Dr Kelly faintly tried to defend the particulars by asserting that they were adequate and sufficient.
Particulars – consideration
35 In Wootton [1913] 3 KB at 503, Kennedy LJ giving his and Cozens-Hardy MR’s reasons, held that a plea of justification should state the charge with the same precision as an indictment. He said:
“In every case in which the defence raises an imputation of misconduct against him, a plaintiff ought to be enabled to go to trial with knowledge not merely of the general case he has to meet, but also of the acts which it is alleged that he has committed and upon which the defendant intends to rely as justifying the imputation.”
36 This principle is also reflected in the general principle that the pleadings and particulars must identify with sufficient clarity the case the parties have to meet and that conduct, such as fraud, must be pleaded specifically and with particularity: cf Banque Commerciale SA (En liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 285-286 per Mason CJ and Gaudron J, 290 per Brennan J.
37 I am of opinion that the particulars given in respect of Mr Textor’s conduct during April 1993 are sufficiently precise and capable of being relevant to proving the contextual imputation against him of hypocrisy. The allegation concerning Mr Textor’s interview in September 2004 is also capable of supporting an imputation of hypocrisy. In addition, because the contextual imputation of hypocrisy is directed towards his general character, Mr Textor’s subsequent conduct that Dr Kelly asserted had occurred in February 2012 may be relevant in establishing justification: Maisel v Financial Times Limited [1915] 3 KB 336. There, the English Court of Appeal allowed interrogatories directed to establishing that the plaintiff had engaged in acts of misconduct within two or three months after the publication of the matter complained of. They so held because the imputation that the defendant sought to justify was that the plaintiff was of a character and reputation that he was likely to have engaged in the conduct imputed against him. As Pickford LJ said ([1915] 3 KB at 341):
“The allegation is that he was of a character to misappropriate funds and that he would misappropriate funds if he got the chance. It seems to me that it cannot be irrelevant to show that very shortly after the libel, as soon as he did get the chance, he did misappropriate.” (emphasis added)
38 However, there is nothing in the particulars alleged against Mr Crosby that identified, far less with any precision, what Dr Kelly asserted will demonstrate that Mr Crosby is a hypocrite. The particulars in relation to Mr Crosby’s association with the Liberal Party and its election campaigns are broad and lack any precision in identifying some conduct of Mr Crosby that could rationally support a suggestion of hypocrisy. Likewise, the particulars concerning the 2010 election campaign and overseas elections in relation to Mr Crosby and Mr Textor are bold generalisations lacking any content. Those particulars are embarrassing and must be struck out.
Can Dr Kelly rely on qualified privilege – submissions of Mr Crosby and Mr Textor
39 Mr Crosby and Mr Textor argued that Dr Kelly’s failure to plead any defence of qualified privilege in the course of the earlier hearings in which he challenged the jurisdiction of the Court, including in the defence he filed for the consideration of the Full Court, should now preclude him from relying on such a defence. They contended that his current defence of qualified privilege raised matter that, had it been before the Full Court, may have influenced the outcome of that aspect of this litigation on a different basis to that on which it was decided. They argued that the jurisdictional challenge resulted in a substantive delay in the preparation of these proceedings that could not be compensated for by the orders for costs that had already been made in their favour, as a result of the failure of Dr Kelly’s jurisdictional challenge.
Qualified privilege – consideration
40 Mr Crosby and Mr Textor did not articulate a precise juridical basis on which this aspect of their interlocutory application was made. It is a serious matter to shut a party out of a viable cause of action or defence. In such an application, the applicant bears a heavy onus. The power to grant a permanent stay based on an abuse of process is only “exercisable in the most exceptional circumstances”: Williams v Spautz (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ. No suggestion is made here that the common law defence of qualified privilege is unarguable or susceptible to summary dismissal under s 31A of the Federal Court of Australia Act.
41 It may be possible that a party’s failure to plead or raise an issue at an earlier stage in litigation is capable of being giving rise to an abuse of process when the party seeks to raise that issue at a later, and potentially inappropriate, stage. The Court’s power to deal with procedural abuse of process extends to its capacity to exclude particular issues in otherwise properly constituted proceedings that are frivolous and vexatious. In addition, the failure to take procedural steps and other actions or inactions that may cause delay in the conduct of proceedings are also capable of constituting an abuse of the process of the Court: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 at 267 [15] per Gleeson CJ, Gummow, Hayne and Crennan JJ.
42 Here, Dr Kelly’s possible reliance on a common law defence of qualified privilege was not a matter that was canvassed during the course of the earlier course of the proceedings when it was before the Full Court. Even if it had been, and Dr Kelly either had then indicated that he reserved the right to raise it or, as he has, subsequently decided to raise it, the Full Court would presumably still have had to decide whether his jurisdictional argument was sound or not. Had Dr Kelly done so when he first filed a defence, little extra time would have been taken between the adjournment of the first Full Court hearing on 19 April 2012, the filing of the defence on 4 May 2012 and the further hearing before the Full Court on 2 July 2012 when it also delivered reasons. The subsequent delay leading to the High Court’s refusal to grant Dr Kelly special leave to appeal is unlikely to have been eschewed had the currently defence of qualified privilege been pleaded earlier: cf Kelly v Crosby [2013] HCA Trans 17. If, as Dr Kelly contends, the defence he has now pleaded of qualified privilege raises no constitutional issue that could support the Court’s jurisdiction, under s 39B(1A)(b) of the Judiciary Act, as involving a matter arising under the Constitution or involving its interpretation, by virtue of his status as a Member of the House of Representatives, he would still have maintained his challenge and the time absorbed in pursuing it would have been substantively the same.
43 It is not entirely satisfactory that Dr Kelly has raised the plea of qualified privilege at this stage. However, it may be said in his favour that the imputations on which Mr Crosby and Mr Textor have been amended since his original defence was filed. It is unlikely that the issues concerned in hearing and determining the matter will be significantly expanded by the pleading of this defence. The evidence necessary to support the defence of qualified privilege is likely to be in a narrow compass and probably will be admissible on other issues. While no doubt some time may be taken in argument on this issue at trial, it is not likely to significantly expand the hearing.
44 Ordinarily, the power of the Court to deal with an abuse of its process will not be an appropriate means to deal with what amounts to an error of judgment or oversight by a party in the conduct of a case. Of course, all depends on the circumstances as to whether that power should be used. But generally, such situations will give rise to other discretionary powers that the Court exercise in the ordinary course of managing litigation before it. The Court’s discretion to allow late amendments involves such a different juridical issue: Aon Risk Services Australia Ltd v Australia National University (2009) 239 CLR 175. No such issue arises here because Dr Kelly had the right to file a defence raising any issue bona fide to answer the amended statement of claim filed by Mr Crosby and Mr Textor on 9 July 2013. I am not satisfied that it is appropriate to strike out, or preclude Dr Kelly from relying on, the defence of qualified privilege.
Conclusion
45 Dr Kelly should serve a draft amended defence on Mr Crosby and Mr Textor that reflects these reasons on or before 24 January 2014. That should particularise properly any basis for justifying any imputation on which he currently relies as being substantially true. If Mr Crosby and Mr Textor do not consent to the filing of that document Dr Kelly will need to cause the proceedings to be relisted as soon as convenient for any outstanding issue to be determined.
46 In my opinion, each of the parties has had a measure of success on the application. Nonetheless, Mr Crosby and Mr Textor succeeded in obtaining, first, a concession, only at the hearing, that resulted in Dr Kelly abandoning one contextual imputation and, secondly, the striking out of the bulk of the particulars of justification. In my opinion, the fair result would be that Dr Kelly pay 50% of the applicants’ costs of the application .
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. |
