FEDERAL COURT OF AUSTRALIA

Adeang v The Australian Broadcasting Corporation (No 2) [2016] FCA 1599

ORDERS

THE COURT ORDERS THAT:

1.    In the defence filed on 14 November 2016:

(a)    paragraph 11(a) be struck out;

(b)    the respondent’s first and third contextual imputations pleaded in paragraph 11(b) be struck out; and

(c)    the particulars in support of the imputations and contextual imputations be struck out save only those particulars that support the substantial truth of the imputations referred to in order 2 below and the respondents’ second contextual imputation.

2.    The respondent have leave to replead its defence only in respect of its pleading of the substantial truth of imputations 6(e)-(f) and 8(e)-(f) in the further amended statement of claim.

3.    The respondent pay the applicant’s costs of the interlocutory application filed on 8 December 2016.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT)

RARES J:

1    On 10 October 2016 in these defamation proceedings, I published my reasons for, first, granting the applicant, David Adeang, leave to further amend his amended statement of claim by adding two new imputations, (e) and (f), secondly, refusing him leave to add imputation (h), thirdly, striking out the first contextual imputation pleaded by the respondent, the Australian Broadcasting Corporation (ABC), and its associated particulars and, lastly, ordering that Mr Adeang file a further amended statement of claim pleading the two new imputations and the ABC file a defence to that pleading: Adeang v The Australian Broadcasting Corporation [2016] FCA 1200.

2    On 17 October 2016, Mr Adeang filed a further amended statement of claim. On 14 November 2016, the ABC filed what it titled as an amended defence but which was in fact a new defence to the further amended statement of claim.

3    Mr Adeang took issue with the ABC’s pleading in the defence of:

(1)    the plea of justification to all of his imputations, not just the two new ones (e) and (f). Mr Adeang accepted that the ABC was entitled to defend the two new imputations by a fresh plea of justification. However, he objected to the wider plea on the basis that the ABC had not properly explained its decision to make its new pleading of truth to imputations (a) to (d). He also contended that the particulars in support of that new plea were incapable of justifying imputations (a) to (d);

(2)    two new contextual imputations being, imputation 1 that replaced the ABC’s previous first contextual imputation that I struck out, and imputation 3 that responded to Mr Adeang’s newly pleaded imputations (e) and (f).

4    In subsequent correspondence the ABC indicated that it wished to replead imputation 3. In the course of argument it abandoned the originally pleaded imputation 3 and substituted a reformulation that I have set out in [5] below.

Background

5    The essential background, including the whole of the matters complained of, is set out in my previous judgment and need not be repeated here. The current and proposed reworded imputations and contextual imputations are:

(a)    The Applicant obstructed the administration of justice on Nauru by ensuring that the shocking death of his wife was not properly investigated.

(b)    The Applicant had the Commissioner of Police removed from his position so as to prevent a proper investigation into the shocking death of his wife.

(c)    The Applicant caused the resident magistrate in Nauru to be deported to prevent a proper investigation into the shocking death of his wife.

(d)    The Applicant cancelled the visa of the Chief Justice in Nauru to prevent a proper investigation into the shocking death of his wife.

(e)    The Applicant behaved in such a way as to deserve to be reasonably suspected of an involvement in the unlawful killing of his wife.

(f)    The Applicant behaved in such a way as to deserve to be reasonably suspected of the murder or manslaughter of his wife.

1    David Adeang, one of the most powerful members of the Nauruan Parliament, abuses his position by using it to disable opposition to his interests.

2    David Adeang, as a Minister of the Nauruan Government, obstructed the administration of justice on Nauru.

3    David Adeang behaved in such a way as to deserve to be reasonably suspected of having some responsibility for his wife’s death. (original pleaded version)

3    David Adeang behaved in such a way as to deserve to be reasonably suspected of having an involvement in the suspicious death of his wife. (first amended version)

6    On 8 December 2016, Mr Adeang filed an interlocutory application seeking orders to revoke the order that I made on 10 October 2016 that the ABC file a defence to his further amended statement of claim, to strike out that defence, and to require that any amended defence be strictly responsive to the amendments to the further amended statement of claim and not introduce any new defence of justification to imputations (a) to (d) or contextual truth defences such as imputations 1 and 3. The interlocutory application also sought to strike out the repeated particulars that I had struck out in my orders of 10 October 2016 and, in the alternative, to strike out the new pleas of justification and contextual truth and the new particulars in support of them. Mr Adeang supported the alternative basis by arguing that imputations 1 and 3, as reformulated, were so vague and imprecise that they disclosed no reasonable defence and or they, and the reinstated and new particulars of justification and contextual truth, were embarrassing and or an abuse of process.

7    The particulars of justification for imputations (a) to (d) and imputations 1 and 3, in substance, asserted that Mr Adeang:

    had refused to give, and to permit his son to give, a statement to the police in relation to his wife’s death;

    had not sufficiently encouraged or assisted either the Commissioner of Police and his officers in the investigation or the Coroner to hold an inquest;

    had a role in the suspension of the Commissioner of Police, the deportation of the Coroner (who was also the resident Magistrate and Registrar of the Supreme Court) and the cancellation of the Chief Justice’s visa;

    had provided a statement to the ABC that was “dismissive of the fact that an inquest into the death of his wife had not been held” by saying “Nauru rarely if ever has coronial inquests”.

8    In addition, the particulars of justification for imputations 1 and 3 ranged more broadly and I will deal with those in due course.

9    Mark O’Brien, the solicitor for Mr Adeang, deposed to the fact that between them Mr Adeang and the ABC had spent about $62,000 in solicitor/client costs in the course of conducting the interlocutory application the subject of my previous reasons. I have no reason to think that a similar level of expenditure would not have been incurred in the present interlocutory application. Accordingly, in the order of over $100,000 has been spent by the parties just dealing with two disputes in relation to the formulation of the pleadings.

The ABC’s submissions

10    The ABC pointed out that it had not objected to Mr Adeang having permission to further amend his statement of claim in the course of the previous argument, albeit that his amendments had been proposed some three months or so after an earlier amendment to the statement of claim had been made by consent pursuant to Mr Adeang’s right to reformulate his earlier imputations. The ABC contended that it should be given similar flexibility to make amendments to its defence to the extent that it needed to have that. The ABC argued that it was entitled to amend its defence as of right so as to raise defences that it had not previously raised to the unamended imputations from the previous version of the statement of claim, such as its new defence of justification to imputations (a) to (d), as well as to the reformulation of a new imputation 1 in place of the imputation that I had struck out, that had read:

David Adeang, one of the most powerful figures in Nauruan politics, systemically violates the principles of democracy and the rule of law in Nauru in order to further his own agenda.

11    The ABC contended that the provisions of r 16.55, and in particular r 16.55(3), of the Federal Court Rules 2011 created a plenary right for it to amend its defence so as to support what it had done in its defence filed on 14 November 2016.

The issues

12    The following issues require resolution:

(1)    what scope the order I made for the filing of a defence and or r 16.55(3) provide for the addition of new defences that were not previously pleaded to claims that were maintained;

(2)    whether the ABC should have leave, as it sought if needed, to amend or to rely on the defence of justification to imputations (a) to (d);

(3)    whether imputations 1 or 3 should be struck out; and

(4)    what conditions, if any, should be imposed on any amendments or the ABC’s raising of new issues.

Consideration – new plea of justification of imputations (a) to (d)

13    The Court has statutory case management powers and obligations imposed by Pt VB of the Federal Court of Australia Act 1976 (Cth). Those obligations are to achieve the overarching purpose of the civil practice and procedure provisions, namely to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible, as s 37M(1) provides. Section 37N creates personal obligations on both the parties and their lawyers to conduct the proceeding, including negotiations for settlement of the dispute to which the proceeding relates, in a way that is consistent with that overarching purpose.

14    In the previous Federal Court Rules 1979, O 13 r 4(1) provided for the consequential amendment of a defence where an applicant had amended a statement of claim and granted a respondent, who had filed a defence, the right to amend that defence. Order 13 r 4(3) provided that the right to amend under O 13 r 4(1)(a) was in addition to the right to amend under O 13 r 3. The latter granted a party, without leave, the right to amend any pleading unless the time for pleadings had closed or the party had previously amended the pleading. That version of the rules is substantively similar to the provisions in rr 16.51, 16.52 and 16.55 of the Federal Court Rules 2011.

15    In Yarrabee Chicken Company Pty Ltd v Steggles Ltd [2010] FCA 394 at [122], Jagot J held that the former O 13 r 4(1)(a):

… should be construed as permitting a defence to be amended in a manner that is responsive to an amendment in a claim.

16    Her Honour held that the amendment which she was considering in that case was not so responsive. The explanatory statement issued by the authority of the judges of the Court for the Federal Court Rules 2011 stated that:

The new Rules do not substantially alter existing practice and procedure but rather explain it in a way that it can be more easily followed and applied.

17    I am of opinion that Jagot J’s observation in Steggles [2010] FCA 394 at [122] is appropriate and correct and equally applies to an amendment under the current Rules made at a later stage of the proceedings, such as the present. It is important to recognise that, in litigation, a litigant with deep pockets may have the capacity to bring and or withstand a considerable variety of challenges in procedural applications that may make an opposing party’s task financially burdensome. The conduct of defamation litigation is often complex. That is because it deals with the intersection between the right to reputation claimed by a plaintiff (or applicant) and the exercise of the right of freedom of expression claimed by the defendant (or respondent).

18    Nonetheless, whatever type of litigation is conducted in this Court, the overarching purpose in s 37M(1) applies to it. In my opinion, the ABC’s change of position in pleading a wholly new defence of justification to imputations (a) to (d) required an explanation. Senior counsel for the ABC said that it only occurred to him that the ABC should justify imputations (a) to (d), when considering how to respond to the amendments that I allowed Mr Adeang to plead in imputations (e) and (f). I accept his explanation as did senior counsel for Mr Adeang. However, as Gilmour, Perram and Beach JJ said in Tamaya Resources Ltd v Deloitte Touche Tohmatsu (2016) 332 ALR 199 at 226 [153]-[156]:

Tamaya acknowledges that an explanation for delay in bringing the amendment application was called for but says that it provided such an explanation which the primary judge wrongly rejected as inadequate. …

The explanation will be given by, or on behalf of, the moving party. Affidavit evidence may or may not be necessary. In Cement Australia, for example, as the explanation was that the error was one of judgment by senior counsel for the ACCC, a statement by him from the bar table, to which no objection was taken, was accepted by the Court as sufficient.

It must be borne in mind that the explanation required is that of the moving party, not merely their solicitor or counsel. The client may very well know of matters relevant to the explanation for delay which are not known by the lawyers.

Evidence as to the explanation for delay will often be given by an applicant’s solicitor from their own knowledge but that may, in some cases, not be sufficient. This is such a case. The primary judge was correct to conclude that the explanation offered by Tamaya was deficient because Ms Banton could not explain why she did not know of the Chilean audit issues until she was told by Mr Basford. Her Honour’s approach does not involve any error of principle. (emphasis added)

19    In this case, there is no reason to doubt what senior counsel for the ABC told me as to his appreciation of the case. However, the ABC is a litigant very well versed in the conduct of defamation actions and the exercise of the right to express itself in our Parliamentary democracy. There was no explanation from the ABC itself about why it had only now decided to plead justification to imputations (a) to (d), even after Mr Adeang raised his objections to the amendments that the ABC seeks to make by the addition of the plea of justification to imputations (a) to (d).

20    The ABC argued that, in essence, the proof of its defence of justification to imputations (e) to (f) would substantively establish the truth of imputations (a) to (d) inclusive. It contended that a finding that each of those imputations was justified would merely be a matter of inference drawn from the simple fact of the allegation in imputations (b), (c) and (d) that Mr Adeang had caused the interferences alleged in respect of the Commissioner of Police, resident Magistrate and Chief Justice in relation to the investigation of his wife’s death.

21    In my opinion, that is not a likely outcome. Proof of both Mr Adeang’s purpose and the means by which he acted in order to enable the drawing of an inference of that purpose for each occasion is likely to involve some complex factual inquiry. It is one thing to say that the objective fact that Mr Adeang had an involvement in the removal of the Commissioner of Police from his position or the deportation of the Magistrate or the cancellation of the visa of the Chief Justice is capable of giving rise to an inference of suspicion, the subject of imputations (e) and (f), but it is another to say that he did so for the purpose of ensuring that his wife’s death was not properly investigated.

22    In substance, the particulars of justification pleaded in the current defence either repeat the earlier particulars, including some of those that I struck out, or relate to other allegations in the matters complained of. All of those factual matters were available to the ABC when it filed its original defence and could have been relied on, had the ABC wished to justify imputations (a) to (d) in that defence. Not only did the ABC not plead justification to imputations (a) to (d) in its original defence, it did not raise any argument about that possibility in the previous interlocutory hearing that, as I have said, cost the parties over $60,000 between them.

23    The reformulation of Mr Adeang’s claim to include the imputations of suspicion in imputations (e) and (f) appeared to me, and still appear to me on the evidence, to be simply inferences that would be drawn from the subject matter on which he would rely to supply a finding that the matter complained of conveyed imputations (a) to (d), as I explained in my earlier reasons. Accordingly, imputations (e) and (f) do not raise any substantively new issues in the proceedings that had not already been raised by Mr Adeang’s earlier pleaded imputations and the ABC’s imputation 2 that I allowed to stand, namely that Mr Adeang, as a minister of the Nauruan Government, had obstructed the administration of justice on Nauru.

24    It is one thing to say that a person has acted in such a way that he or she deserved to be reasonably suspected of some impugned act or condition. It is another, and quite a different, thing to say that the person is actually guilty of some impugned act or condition: see Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 per Mason J with whom Gibbs CJ, Wilson and Brennan JJ agreed on this issue, and the cases to which I referred in Adeang [2016] FCA 1200 at [15]-[21].

25    Of course, it was open to the ABC to decide to justify imputations (e) and (f). There can be no objection to it doing so, having regard to the fact that they were new allegations made against it. However, given that the ABC was already seeking to plead contextual justification based on Mr Adeang’s conduct in imputation 2, I am unable to understand, absent an explanation by the ABC itself, as opposed to the explanation, that I accept, of its senior counsel, any reason why, if it had not made an informed decision, it had omitted to plead justification to imputations (a) to (d) in its previous defence based on the material that was available to it. Having regard to its activities as a publisher and its experience as a litigant in defamation proceedings, the ABC itself was capable of deciding whether it wished to plead in any litigation that what it published conveyed an imputation or contextual imputation that was a matter of substantial truth. The ABC has not explained its reasons for how it made its original choice of defences and its subsequent decision to act on its senior counsel’s new thoughts.

26    In those circumstances, given the factual material to which the ABC had access at the time it pleaded its original defence and its failure to explain why it did not previously plead justification, I am not prepared to allow the ABC to raise a range of substantively new allegations by way of justification to imputations (a) to (d). Accordingly, the plea of justification to imputations (a) to (d) should be struck out.

The ABC’s submissions on imputations 1 and 3

27    The ABC argued that imputation 1 was not liable to be struck out as being imprecise. It characterised Mr Adeang’s complaint as being a meretricious argument of the kind that I criticised in Adeang [2016] FCA 1200 at [22]. It argued that the power to strike out a pleading under r 16.21 should not be exercised unless the contextual imputations were obviously untenable or unarguably bad. The ABC submitted that, to the extent that there were areas in which the pleading of each of imputations 1 and 3 was imprecise, the imputations could be contextualised and, to any necessary extent, defined by reference to the extensive particulars which the ABC provided. It complained that Mr Adeang had exhibited a belligerent attitude in challenging its new imputations.

28    I raised in the course of argument with senior counsel for the ABC that, in my opinion, the form of imputation 1 as pleaded was vague in the extreme. Although not necessarily conceding that that criticism was justified, the ABC sought to reframe imputation 1, if I found it to be of that character, to read:

David Adeang, one of the most powerful members of the Nauruan Parliament, abuses his power for self-interest.

29    The ABC again relied on the particulars that it had identified in a table to its submissions that occupied a full A4 page. The table specified nine different instances on which the ABC relied that ranged through almost the whole period of Mr Adeang’s involvement in Nauruan politics, including while he was in opposition and in his roles as a member of a government, of a cabinet and of Parliament when voting on legislation.

Consideration – imputations 1 and 3

30    In my opinion, imputation 1 in both its original and proposed amended form is a confusing and vague melange of concepts. Imputation 1, as originally framed, referred to Mr Adeang as one of the most powerful members of Nauru’s Parliament. It then stated that he abuses his position, presumably that of a powerful parliamentarian, by using the position in an unspecified way, somehow, to disable opposition to, what is vaguely termed, “his interests” by persons or forces that, again, are not specified. The ambiguity of just what the imputation asserts about what Mr Adeang does or how he does it, or to whom or what his acts are directed, is palpable.

31    The ABC included in its particulars of justification of imputation 1 not only Mr Adeang’s prevention of a proper investigation into the death of his wife, which appeared to be covered in any event by imputation 2 that I had allowed to stand, but also assertions that Mr Adeang:

    had obstructed investigations into allegations that his party had engaged in vote rigging prior to the 2013 elections;

    had obstructed investigations into allegations against him of receiving payment, while in opposition, from a company wishing to purchase phosphate at well below market prices in order to secure votes of other members of Parliament to overthrow the then government and to bring about such a sale;

    had removed Mr Henshaw as manager and licensee of a hotel and gambling facility, and this had “cleared the way for persons who were [Mr Adeang’s] ‘close associates’ to take over operation of those businesses”, then deported Mr Henshaw and prevented him from successfully accessing avenues for judicial and other review;

    had prevented the Magistrate and Coroner, Peter Law, and Chief Justice Eames from exercising judicial power;

    had prevented “any public criticism of his conduct with respect to the detention centre on Nauru, Mr Henshaw, Eames CJ, Mr Law and Mr Britten”;

    had refused a visa to the wife of a suspended member of Parliament and then cancelled his passport, while he was in New Zealand with his wife and children;

    had caused legislation to be passed that criminalised the making or publishing of statements that were likely to threaten Nauru’s national defence, public safety, public order, public morality or public health and had caused the Nauruan cabinet’s decision to block certain websites; and

    had suspended, under a cabinet decision, welfare payments to a woman who had been involved in protests against the government’s suspension of three members of Parliament.

32    Some of those particulars involved cabinet decisions or Parliamentary votes or tactics. Imputation 1 did not specify how or in what way a member of a collective body such as a cabinet, parliamentary body or Parliament could abuse his “position” by voting with others on a decision or legislation. Nor did imputation 1 specify how acting on a cabinet decision is capable of being seen as an abuse of Mr Adeang’s ministerial responsibility to implement it. The ABC’s argument that imputation 1 could be justified by proof of such vague and imprecise conduct, demonstrates that imputation 1 is embarrassing and virtually unconfined. Indeed, the ABC submitted that a defendant’s or respondent’s “imprecision” in the pleading of a contextual imputation was capable of being cured because “it is a perfectly practical solution to look to the particulars if further specificity is required”. In Setka v Abbott (2014) 44 VR 352 at 417 [295], Warren CJ and Ashley JA said that, without deciding, it may be permissible to use particulars:

… in some circumstances, to give specificity to what would otherwise be an impermissibly vague contextual truth imputation.

33    In my opinion, the same principles that must apply to the formulation of a contextual imputation require the plaintiff or applicant to plead an imputation with a sufficient degree of specificity. Each type of imputation is the pleader’s encapsulation of a meaning that the matter complained of allegedly conveys of and concerning the plaintiff, namely an act or condition asserted or attributed to him or her: see Adeang [2016] FCA 1200 at [15]-[22] where I discussed the principles. Particulars can confine the ambit of a contextual imputation, but that does not mean that a defendant (or respondent) can eschew formulating a sufficiently precise and intelligible meaning that enables a judge or a jury (as the tribunal of fact) to decide whether the matter complained of conveyed that meaning and, if it did, that the meaning was substantially true. As Gleeson CJ said in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137B-G, the solution will usually be found in considerations of practical justice rather than philology.

34    But, it is the imputation, not the particulars relating to it, that must encapsulate what the party pleading it alleges that matter complained of conveyed to the ordinary reasonable viewer. The ordinary reasonable viewer will not have knowledge of matters, let alone any particulars, beyond the matter complained of (or, if an innuendo is relied on, any extrinsic facts known to that viewer) from which to draw a meaning that he or she understands the publication to convey. In my opinion, it is contrary to principle to use particulars to distil clarity or sufficient precision into an otherwise obscure imputation. An imputation, including a contextual imputation, must itself express, with an appropriate degree of specificity, an act or condition asserted or attributed to a plaintiff (or applicant): Drummoyne 21 NSWLR at 136F-137F per Gleeson CJ; Adeang [2016] FCA 1200 at [15]-[21].

35    The same vice applies to the way in which the ABC suggested imputation 1 could be reformulated. The ABC sought to support that reformulation based on what I had said in Adeang [2016] FCA 1200 at [71]-[72]. In my opinion, what I said there applies here, namely, the ABC’s reformulated imputation 1 does not specify an act or condition with appropriate clarity or specificity. In both its formulations before me, imputation 1 was unacceptably vague and imprecise. That imputation should not be allowed to remain in the pleading.

36    Imputation 3 appears to be a gradation of meaning of Mr Adeang’s imputations (e) and (f). However, the difficulty with imputation 3 is the vagueness of what act or condition consists in “an involvement in the suspicious death of his wife”, in circumstances where the imputation itself eschews the culpable meanings alleged in imputations (e) and (f), namely, an involvement in either the unlawful killing, or the murder or manslaughter, of Mr Adeang’s wife. Imputation 3 can fairly be described, as Lord Keith of Kinkel did of a similar imputation in Lloyd v David Syme & Co Ltd [1986] AC 350 at 363G-H to which I referred in Adeang [2016] FCA 1200 at [45], as being one that “would rather convey the impression that the author is anxious to wound but fearful to strike too obviously”.

37    It is not obvious what imputation 3 alleges about what act or condition of Mr Adeang amounted to “an involvement in the suspicious death of his wife”.

38    The nature of such an “involvement” could range from the innocent to the culpable. But, the way in which imputation 3 is pleaded leaves that whole range of meanings open in a context in which imputation 3 is intended to convey a meaning that differs in substance from imputations (e) and (f). In my opinion, imputation 3 is pleaded in such a vague way that it is calculated to embarrass the fair trial of the proceedings. As a matter of practical justice, it is too imprecise and embarrassing. It must be struck out.

Conclusion

39    It follows that the particulars of contextual truth that relate to imputations (a) to (d) and 1 and 3 must also be struck out. The ABC should file an amended defence reflecting the striking out that I have determined and it should not have leave to replead any of those matters. The ABC should pay the costs of Mr Adeang’s interlocutory application.

Associate:

Dated:    8 March 2017