Wagner & Ors v Pascoe [2019] QDC 68 (8 May 2019)

Last Updated: 8 May 2019

DISTRICT COURT OF QUEENSLAND

CITATION:	Wagner & Ors v Pascoe [2019] QDC 68
PARTIES:	WAGNER, Denis (respondent-first plaintiff) and WAGNER, John (respondent-second plaintiff) and WAGNER, Neill (respondent-third plaintiff) and WAGNER, Joe (respondent-fourth plaintiff) v PASCOE, Heather Marion (applicant-defendant)
FILE NO/S:	D87/2016
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	8 May 2019
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2019
JUDGE:	Devereaux SC DCJ
ORDER:	Amendments to insert subparagraphs 7(b) and (c) made 21 March 2019 be disallowed; Application for order that amendments to insert subparagraph 7(d) be disallowed is refused; The parties provide written submissions as to costs within two business days.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS - AMENDMENT – where the plaintiffs amended their statement of claim without leave – where the plaintiffs seek to rely on evidence given by the defendant in a different trial as grounds for aggravated damages – where the defendant applies for the amendments to be disallowed – whether such a plea is open – whether the amendments should be disallowed if such a plea is not open DEFAMATION – DAMAGES – AGGRAVATED DAMAGES – where the plaintiffs seek to rely on statements made by defendant prior to alleged defamatory statements as grounds for aggravated damages – whether such a plea is open Defamation Act 2005 (Qld), s 27 Uniform Civil Procedure Rules 1999 (Qld), r 379 Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, cited Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, cited Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89, cited David Syme v Mather [1977] VicRp 58; [1977] VR 516, cited General Steel Industries Inc v Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125, cited Groves v Groves [2011] QSC 411, cited Hartnett v Hynes [2009] QSC 225, cited Mann v O’Neill [1997] HCA 28; 191 CLR 204, cited Mokrzecki v Popham [2013] QSC 123, cited Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267, followed Praed v Graham 24 QBD 53, cited Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201, cited Westpac Banking Corp v Hughes [2011] QCA 42; [2012] 1 Qd R 581, cited
COUNSEL:	K Wilson QC for the applicant-defendant P McCafferty QC for the respondent-plaintiff
SOLICITORS:	Australian Property Lawyers for the applicant-defendant Corrs Chambers Westgarth for the respondent-plaintiff

Introduction

[1] The plaintiffs have sued the defendant for defamation, seeking damages including aggravated damages^[1] and an injunction to prevent repetition of the allegedly defamatory statements. The plaintiffs plead that at a meeting at Toowoomba on 20 January 2015, in the presence of three others, the defendant published certain statements from which serious imputations are alleged to arise in respect of each plaintiff.

[2] On 21 March 2019, the plaintiffs filed and served a further amended statement of claim, which amendments inserted new subparagraphs (a) through (d).

[3] In short, by amended paragraphs 7(b) to (d), the plaintiffs seek to plead that the hurt each suffered as a result of the alleged defamatory statements is aggravated by their knowledge:

• (a) of evidence the defendant gave as a witness for the defendant in a trial between the plaintiffs and Harbour Radio Pty Ltd and others on 16 May 2018;
• (b) that the allegations of bullying and intimidation, in support of which the evidence was called, failed; and
• (c) of statements the defendant made in a radio interview on 23 September 2013.

[4] The defendant applies for an order under r 379 of the Uniform Civil Procedure Rules 1999 (the Rules) disallowing the amendments. For the reasons below, I disallow amended subparagraphs 7(b) and (c). The application to disallow amended subparagraph 7(d) is refused.

Relevant principles

[5] As to the test to be applied on an application under r 379 to disallow an amendment, counsel submitted for a similar approach to an application to strike out part of a pleading, referring to the several formulations gathered by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125 (General Steel) at 129. In brief, if part of a pleading is so untenable that it cannot succeed, it should be struck out.

[6] No point was taken by senior counsel for the plaintiffs that the application was wrongly brought under r 379. Rule 379 comes within ‘Chapter 10 – Court Supervision, Part 3 – Amendment’ of the Rules. Rules 375 to 377 limit amendment by the parties without leave of the court. Rule 378 allows a party to make, as often as necessary, an amendment for which leave is not necessary. In this setting, r 379 provides:

1. If a party makes an amendment without leave before the filing of the request for trial date, another party may, within 8 days after service on the party of the amendment, apply to the court to disallow all or part of the amendment.
2. On the application, the court may make an order it considers appropriate.

[7] The defendant did not submit the amendments made by the plaintiffs required leave. In Mokrzecki v Popham [2013] QSC 123 (Mokrzecki), Philip McMurdo J^[2] said:

“As appeared to be common ground, an application under r 379 should be dealt with by reference to the rules and principles which govern the court’s discretion to give leave to amend.”^[3]

[8] His honour referred to Westpac Banking Corp v Hughes [2011] QCA 42; [2012] 1 Qd R 581 (Westpac). In that case, Fraser JA said:

“It was common ground in the trial division and on appeal that Westpac’s application under r 379 should be dealt with on principles analogous to the principles applicable on an application for leave to amend under r 376.”^[4]

[9] Mokrzecki and Westpac do not exhaustively set out the test for applying r 379; those cases concerned an application brought under r 379 on the ground that the relevant amendments to pleadings were made without leave and in fact required leave.

[10] In Hartnett v Hynes [2009] QSC 225 (Hartnett), Applegarth J set out twelve principles to consider in an application for leave to amend under r 376.^[5] In Groves v Groves [2011] QSC 411, Boddice J held that these twelve principles were also applicable to an application to disallow brought under r 379.^[6] In Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267, Flanagan J also considered that the twelve principles were relevant to r 378 amendments and accepted Applegarth and Boddice JJ’s statements as correct, but highlighted that the application of the principles would vary from case to case as each case will depend on its own circumstances.^[7]

The application

[11] In the present application, it was common ground that r 379 was widely drawn and the test for disallowing an amendment should not be limited by reference to the preceding rules but may include reference to General Steel principles. The Court of Appeal has approved the principles set down by Applegarth J in Hartnett as applicable to r 379 applications to disallow amendments made pursuant to r 378. It follows that these twelve principles are relevant to this application brought under r 379.

[12] The second of the twelve principles in Hartnett is relevant to this application; in Hartnett, Applegarth J said:

“The discretion [in rules 376 and 379] is guided by the purpose of the rules of civil procedure, namely the just and expeditious resolution of the real issues in dispute at a minimum of expense.”^[8]

[13] Further, Applegarth J said:

“The entitlement of a party to amend pursuant to UCPR 378 and the power of the Court to disallow an amendment made under that rule are subject to the overriding purpose of the rules which is to facilitate the “just and expeditious resolution of the real issues in civil proceedings at a minimum of expense” and the requirement that the rules be applied with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of the rules.”^[9]

[14] On this basis, in terms of r 379(2), it would be appropriate to disallow an amendment if it offended particular rules or the philosophy of the rules and the obligations of parties.

[15] Fundamentally, a pleading is to contain all material facts in support of a claim: r 149. A party must specifically plead every type of damage claimed and any matter relating to the assessment of damages that, if not pleaded, may take an opposing party by surprise: r 150(b) and r 155(4). For the purposes of this application, the fact in issue is the degree of harm caused by the alleged defamatory publication and so whether, and if so how much, aggravated damages should be awarded. Facts relevant to that issue must be pleaded.

[16] The amended pleadings are said by the plaintiffs to be relevant to their claim for aggravated damages. There is no dispute that:

“aggravated compensatory damages may be awarded in defamation if the defendant’s conduct aggravates the subjective hurt to the plaintiff....but only if the evidence points to the conclusion that the blow to the plaintiff’s pride, however it may be called, has been or must have been, worsened by what was done.”^[10]

[17] In Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89, Applegarth J said, “damages may be increased by ... unjustified persistence in making untrue allegations or by the conduct of the defence of proceedings.”^[11]

[18] The defendant’s argument is, in effect, that it is not open to the plaintiffs to rely on the facts pleaded in the amendments in support of the claim for aggravated damages and so the amended part of the pleading cannot succeed and should be disallowed.

Amended paragraphs 7(b) and (c)

[19] The amended paragraphs 7(b) and (c) allege that the giving of the evidence by the defendant, as described in paragraph 3(a) of this judgment, comprised conduct of the defendant which increased the hurt suffered by the plaintiffs caused by the alleged defamation.

[20] The defendant submits it is not open to the plaintiffs to rely on the evidence given by the defendant as a witness at the trial because no civil action lies in respect of evidence given by a witness in the course of judicial proceedings,^[12] and the evidence was given under absolute privilege.^[13]

[21] The plaintiffs submit the conduct of the defendant as a witness is not privileged because it is not the subject of a cause of action; that is, the defendant is not being sued for the statements made in court and so no defence is engaged.

[22] Section 27 of the Defamation Act 2005 (Qld) (the Act) provides:

• (1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.
• (2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if-

...

(b) the matter is published in the course of the proceedings of an Australian court... including (but not limited to)-

...

(ii) the publication of matter while giving evidence before the court or tribunal....

[23] In Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130, Rich ACJ said, “Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury.”^[14]

[24] In the same judgment, Starke J said, “No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts”,^[15] and, “...the rule of law is that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice.”^[16]

[25] Again in the same judgment, Williams J said, “It is clear law that a witness cannot be sued in a civil action in respect of anything which he has said in the course of his examination in the witness box. In Seaman v. Netherclift (1876) 2 C.P.D., Cockburn C.J. said: “If there is anything as to which the authority is overwhelming it is that a witness is privileged to the extent of what he says in the course of his examination.””^[17]

[26] In Mann v O’Neill [1997] HCA 28; 191 CLR 204, the joint reasons of Brennan CJ, Dawson, Toohey and Gaudron JJ, include:

“It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings.”^[18]

[27] All of these statements compel the conclusion that it is not open to the plaintiffs to plead and seek to prove at trial, for the purposes of increasing the damages sought for allegedly defamatory statements made at a meeting at Toowoomba on 20 January 2015, answers the defendant gave at the trial between the plaintiffs and others in 2018. The conclusion is strengthened by the terms of, particularly, subs 27(2)(b)(ii) of the Act. In the circumstances, amended paragraph 7(b) must be disallowed.

[28] The policy reasons for the protection of witnesses transcend any argument designed to limit the protection only to a defendant to a cause of action. The provisions of s 27 should not be read down in the manner suggested by the plaintiffs.

[29] In any case, the defendant argues it was not her conduct in giving evidence, but that of the parties who called her as a witness.

[30] I have been referred to cases in which a defendant’s conduct at the trial of the plaintiff’s claim was held to have aggravated the harm sustained by the plaintiff, including Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89 and Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201 (Harbour Radio). I have not been referred to a case where a defendant’s conduct as a non-party witness in a different trial aggravated the harm sustained. There is a distinction between the continuing tortious or aggravating conduct of a defendant throughout the proceeding defended and the actions of a witness in a proceeding between others.

[31] The defendant was called as a witness in a trial between others. I presume that she answered questions in the terms set out in the amendment, that her answers were responsive to questions and relevant to an issue between the parties in the trial. If the answers contained a repetition of the defamation alleged in the present proceeding and other statements offensive to the plaintiffs, this was the conduct of the party who called the witness (and who in those proceedings became thereby liable for aggravated damages).

[32] I accept the defendant’s submission, which is related to the absolute privilege argument, that her giving evidence was the conduct of the party that called her.

[33] Paragraph 7(c) falls with paragraph 7(b).

Amended paragraph 7(d)

[34] Amended paragraph 7(d) alleges that statements the defendant made in a radio interview on 23 September 2013 comprised conduct of the defendant which increased the hurt suffered by the plaintiffs caused by the alleged defamation.

[35] The defendant’s submission with respect to paragraph 7(d) is that it is not open to the plaintiffs to plead and attempt to prove aggravating conduct which pre-dates the alleged defamation, absent a plea of malice. As pleaded, the plaintiffs do not allege malice or any particular state of mind of the defendant, which plea would be permissible under s 36 of the Act.

[36] The plaintiffs submit that the defendant’s proposition is contrary to authority and that Flanagan J in Harbour Radio set out the law and took into account 53 earlier broadcasts in calculating damages.

[37] It is not clear that the reasons of Flanagan J are authority for the plaintiffs’ submission that earlier conduct than the alleged defamation may go directly to aggravate general damages. The defendant submits his Honour’s remarks support her position – that such evidence is admissible only in support of a plea of malice. His Honour said:

“As pleaded, the plaintiffs do not seek to rely on the 53 previous broadcasts for a purpose other than inferring that Mr Jones was motivated by a desire to injure the plaintiffs’ reputations.”^[19]

[38] In my respectful opinion, the passage the plaintiffs rely on from Gatley on Libel and Slander also does not support their submission. Flanagan J set out the relevant paragraphs at [752] of Harbour Radio; I will not reprint them. The focus of those paragraphs is proof of malice. Indeed, the learned authors write that the very reason for the admission of evidence of aggravating conduct was explained by Tindal CJ in Pearson v Lemaitre [1843] EngR 666; 134 ER 742 as follows:

“Either party may with a view to damages, give evidence to prove or disprove the existence of a malicious motive in the mind of a publisher of defamatory matter.”

[39] Later in the same reasons, Tindal CJ said that,

“...the spirit and intention of the party publishing a libel, are fit to be considered by the jury, in estimating the injury done to a plaintiff, and that evidence tending to prove it, cannot be excluded simply because it may contain another and different cause of action.”

[40] I proceed on the basis that it is accepted a defendant’s conduct may be relevant and admissible on the issue of compensatory damages, whether or not it tends to prove malice. In Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, Brennan J said:

“Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendant from the time of publication until verdict (including conduct at the trial, to which reference will presently be made) is relevant. In Broome v. Cassell & Co. Lord Reid, speaking of the bracket within which any sum could be regarded as not unreasonable compensation, said:

“It has long been recognized that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation.”

Evidence of the defendant’s conduct is admissible also in proof of malice. But s. 46(3)(b) of the Defamation Act provides that, in New South Wales, damages – “shall not be affected by the malice or other state of mind of the publisher at the time of the publication complained of or at any other time, except so far as that malice or other state of mind affects the relevant harm.

Evidence of the defendant’s conduct is therefore relevant and admissible on the issue of compensatory damages, whether or not it tends to prove malice, but only so far as that conduct exacerbates or ameliorates the consequences of the original publication or the plaintiff’s injured feelings.”^[20]

[41] The plaintiffs have not shown an example of a case where conduct pre-dating the defamatory conduct was taken into account in aggravation of the harm caused by the defamatory conduct absent a plea of malice. In Praed v Graham 24 QBD 53, Lord Esher MR said,

“the jury in assessing damages are entitled to look at the whole of the conduct of the defendant from the time the libel was published down to the time they give their verdict. They may consider what his conduct has been before action, after action, and in court during the trial.”^[21]

[42] This statement was made well before a clear distinction was drawn between exemplary damages and aggravated damages,^[22] but was repeated by Lord Hailsham of Marylebone LC in Broome v Cassell & Co Ltd [1972] UKHL 3; [1972] AC 1027 at 1071. As a direction to a jury, it was criticised by Lush J in David Syme v Mather [1977] VR 517.

[43] Although there is no clear statement of authority that a defendant’s conduct before the defamatory conduct could, absent an allegation of malice, aggravate the plaintiff’s harm, I am not persuaded that it could never be so.

[44] In the result, the defendant has not shown that it is not open to the plaintiff to rely on the matters pleaded in amended paragraph 7(d) “so far as that conduct exacerbates...the consequences of” the alleged defamation. Whether it does so and to what extent is a matter for the trial judge.

Order:

1. Amendments to insert subparagraphs 7(b) and (c) made 21 March 2019 be disallowed.
2. Application for order that amendments to insert subparagraph 7(d) be disallowed is refused.
3. I will accept written submissions from the parties as to costs within two business days.

---

^[1] The Claim, for each plaintiff, is for general compensatory damages of $150,000 and aggravated damages of $50,000.

^[2] As McMurdo JA was then.

^[3] Mokrzecki v Popham [2013] QSC 123, [26].

^[4] Westpac Banking Corp v Hughes [2011] QCA 42; [2012] 1 Qd R 581, 584.

^[5] Hartnett v Hynes [2009] QSC 225, [27].

^[6] Groves v Groves [2011] QSC 411, [11].

^[7] Monto Coal 2 Pty Ltd v Sanrus Pty Ltd [2014] QCA 267, [73] – [74].

^[8] Hartnett v Hynes [2009] QSC 225, [27].

^[9] Hartnett v Hynes [2009] QSC 225, [11]. Footnotes omitted.

^[10] David Syme v Mather [1977] VicRp 58; [1977] VR 516, 526.

^[11] Cerutti v Crestside Pty Ltd [2016] 1 Qd R 89, [38].

^[12] Cabassi v Vila [1940] HCA 41; (1940) 64 CLR 130.

^[13] Defamation Act 2005, s 27(2)(b)(ii).

^[14] (1940) 64 CLR 131, 139.

^[15] (1940) 64 CLR 131, 140.

^[16] (1940) 64 CLR 131, 141. Footnotes omitted.

^[17] (1940) 64 CLR 131, 149.

^[18] Mann v O’Neill [1997] HCA 28; 191 CLR 204, 211. Footnotes omitted.

^[19] Wagner & Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201, [754].

^[20] Carson v John Fairfax & Sons Ltd (1993), 71 to 72.

^[21] Praed v Graham 24 QBD 53, 55.

^[22] Broome v Cassell & Co Ltd [1972] UKHL 3; [1972] AC 1027, 1072