Burke v Shiells & Anor (Ruling No 3) [2018] VCC 1646 (31 July 2018)

	Home \| Databases \| WorldLII \| Search \| Feedback County Court of Victoria

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised

Not Restricted

Suitable for Publication

GAVIN PATRICK BURKE	Plaintiff

v

GRAEME FRANCIS SHIELLS	First Defendant

and

SANDRA JOY SHIELLS	Second Defendant

JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2018
DATE OF RULING:	1 August 2018 (written Reasons 12 October 2018)
CASE MAY BE CITED AS:	Burke v Shiells & Anor (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1646

Catchwords: Defendants’ pleading to Amended Statement of Claim by plaintiff to his Statement of Claim – whether the defendants were entitled to plead their Defences afresh – whether the amendments to the Defences were consequential upon the plaintiff’s amendment of his Statement of Claim

Ruling: Amended Defences were consequential upon the Amended Statement of Claim and therefore permitted.

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Garrett	Gleeson & Co Lawyers

For the Defendants	Mr G Mukherji	Cosgriff Lawyers

1 In 2015, the plaintiff commenced a proceeding in the Magistrates’ Court at Echuca against the defendants seeking damages in respect of publications which he alleged were defamatory of him.

2 The matter was transferred to the County Court at Melbourne in June 2016. The trial commenced before me on 16 July 2018, as a cause.

3 The plaintiff’s Statement of Claim has been amended on a number of occasions prior to and during the trial:

• Amended Statement of Claim dated 24 February 2017 (amended pursuant to Orders by me made on that date);

• Further Amended Statement of Claim dated 21 July 2017 (amended pursuant to Orders by me made the previous day);

• Second Further Amended Statement of Claim dated 16 February 2018 (amended pursuant to Orders of Judge O’Neill made the previous day);

• Third Further Amended Statement of Claim dated 16 July 2018 (amended pursuant to Orders made by me on that date, the first day of the trial);

• Fourth Further Amended Statement of Claim dated 17 July 2018 (amended pursuant to Orders made me on that date, the second day of the trial);

• Fifth Further Amended Statement of Claim dated 25 July 2018 (amended pursuant to Orders made by me on that date, the eighth day of the trial).

• Defences dated 21 July 2017 (to the Further Amended Statement of Claim);

• Amended Defences dated 8 March 2018 (to the Second Further Amended Statement of Claim); and

• Defences dated 18 July 2018 (to the Fourth Further Amended Statement of Claim)

5 In addition, on 25 July 2018, the defendants served upon the plaintiff, and provided to the Court, proposed Defences to the plaintiff’s Fifth Further Amended Statement of Claim.

6 The filing of those proposed Defences dated 25 July 2018 is opposed (at least in part) by the plaintiff. In particular, the plaintiff submits that the most recent Defences of the defendants now allege new defences which ought not to be permitted at this point in the proceeding.

8 On 1 August 2018, I informed the parties that I rejected the plaintiff’s submission that parts of the recently filed Defence be struck out. I indicated that I would grant leave to the defendants to file their Defences in the form filed with the Court and indicated that I would provide written reasons for that ruling in due course. These are those reasons.

9 There have been many amendments made to the pleadings since the commencement of the proceeding. I do not consider it is necessary to set out the detail each of those amendments here. It suffices to provide a short summary.

10 The plaintiff claims damages in respect of three emails that were sent to the editor of The Riverine Herald (“TRH”), a newspaper published in Echuca in Victoria and distributed mainly in north-eastern Victoria and southern New South Wales.

13 TRH and contained a proposed letter and a request that the letter be published in the Letters to the Editor section of the TRH.

14 Each of the proposed letters were published in the Letters to the Editor section of TRH soon after being received by the editor. The Susan Williams email and the Samuel West email were published in the TRH on 23 March 2012. The Shaun Williams email was published in the TRH on 1 August 2012.

15 Each of the emails and attached proposed letters were alleged to have been sent by or with the authorisation of the defendants.

16 Pursuant to s5(1AAA) of the Limitation of Actions Act 1958, a proceeding to recover damages in respect of a defamatory publication must be commenced within twelve months of such publication unless an extension of time for the issuing of such proceedings has been made pursuant to s23B of that Act. The maximum extension that can be granted by a court is three years from the date of publication.

17 By mid-2015, any claim for defamation in respect of the Susan Williams and Samuel West emails was barred. At that time a three-year extension of time was granted by the Magistrates’ Court at Echuca in respect of the Shaun Williams email and the plaintiff claims damages in respect of that publication.

18 In addition, the plaintiff alleges that, in March 2015, the Susan Williams and Samuel West letters to the editor were republished by their inclusion in an application in respect of planning matters made to the New South Wales Department of Planning & Infrastructure (“the Department”) brought by one Dianne MacFarlane (“the Application”). The plaintiff alleges that in republishing the Susan Williams and Samuel West emails, Mrs MacFarlane was acting as an agent of the defendants or that they had consented to and/or authorised those republications. Further, it is alleged that the republications of those emails remained on the website of the Department until 20 March 2018.

20 In his Third Further Amended Statement of Claim dated 16 July 2018, the plaintiff amended his claim so as to abandon his claim based on injurious falsehood and the claim has proceeded solely as a claim for damages for defamation.

21 In their first Defence, the defendants each denied that they had sent or published the three emails in question and denied that they had authorised the publication of them.

22 About five months later, on 24 March 2016, the second defendant amended her Defence so as to admit that she had written the three emails and sent them to the editor of the TRH. The first defendant continues to deny denies that he had any involvement in the publication of the emails or letters to the editor.

23 In addition, the defendants have pleaded a number of defences – namely, justification, qualified privilege and fair comment – in respect of various of the imputations pertaining to the emails.

24 In paragraphs 11, 12, and 13 of his various Statements of Claim, the plaintiff alleged a number of imputations flowing from the printed materials.

25 Early in the trial I ruled that a number of those imputations could not have been understood by the ordinary reader as flowing from that material and ordered that particulars 12(b), 12(c), 13(e), 13(f), 13(h) and 13(i) of the plaintiff’s Statement of Claim be struck out.

26 With regard to paragraph 13(i), as it was then pleaded, I ruled that it should be struck out, but that I would permit a variant of it.

27 Prior to 25 July 2018, in paragraphs 11A, 12A, and 13A of their respective Defences, the defendants had pleaded in respect of each of the three emails, that, if they were defamatory of the plaintiff, the permitted imputations were substantially true giving rise to a defence at common law and pursuant to s25 of the Defamation Act 2005.

28 Notwithstanding, in the particulars provided to those pleadings of the defendants, reference is made to some but not all of the imputations pleaded in paragraphs 11, 12 and 13. No particulars were provided in respect of the remaining imputations and no further particulars were sought by the plaintiff. On their face, the Defences appear to allege that all the imputations relating to each of the three publications are substantially true although some of those are inadequately particularised.

29 I note that in his opening address on 17 July 2018, the second day of the trial, counsel for the defendants provided me with a table. He stated that the table:

30 I consider that it is clear from that table that, at that time, the defendants did seek to justify the imputations pleaded in paragraphs 11(c), 11(d), 12(a), 13(a), 13(b), 13(c), and 13(d). Further, it is clear from the table that the defendants did not seek to justify the imputations pleaded at paragraphs 13(g) or 13(i).

31 Counsel for the defendants submitted that the document did not amount to a statement binding on the defendants as to what defences it relied upon. I consider that when his words are looked at in conjunction with the words in the Defences (prior to 25 July 2018) they amount to a clear statement that justification was not the defendants’ Defence in respect of the imputations set out in paragraphs 13(g) and 13(i).

32 However, on 25 July 2018, the plaintiff filed his Fifth Further Amended Statement of Claim in a number of respects. Amongst them was an amendment to the imputations pleaded in paragraphs 13(g) and 13(i). Previously, they had read that the plaintiff:

33 In the Fifth Further Amended Statement of Claim dated 25 July 2018, these were amended to read that the plaintiff:

34 I consider those amendments were of significance. The defendants may not have been prepared to plead justification to an imputation that the plaintiff made statements that he knew were untrue, but might, post amendment, have been prepared to plead justification to an imputation that he made statements in respect of which he was merely reckless as to whether they were true. The bar would be a lower one to clear from the defendants’ perspective.

35 I accept that the plaintiff’s amendment did not entitle the defendants to amend, at least without leave, their defences carte blanche or so as to plead matters unconnected to the plaintiff’s amendment.

36 Counsel referred me to the decision of the High court in Bowes v Chaleyer [3] and in particular to page 163 of that report. On that page, reference is made to various submissions made by counsel who appeared in that matter and to various comments made by some members of the Court during submissions. Amongst those submissions, it appears that the decision of Rees v Duncan[4] was discussed. In Rees, it had been held that where one party has amended his pleadings, the other party is at large and may plead in reply as broadly as he chooses.[5]

37 In Bowes,[6] it is reported that counsel submitted that Rees ought not to be followed. On that page it is stated that four of the five justices agreed with that submission; however, having read the judgments, I conclude that none of the judgments delivered by the Court contained any reference to Rees or to the rule referred to by Madden CJ.

38 Notwithstanding, Bowes has been recently cited in support of the principle that the party on whom an amended statement of claim has been served, may only make consequential amendments to its defence without leave.[7] I consider that the defendants’ amendments are consequential on the plaintiff’s amendments and are therefore permissible.

39 Counsel for the plaintiff submitted that the defendants could have, prior to the plaintiff’s amendment, pleaded a narrower alternative imputation to that pleaded by the plaintiff in paragraphs 13(g) and (i). Whilst I accept this, I do not consider that this alters or undermines my conclusion that the defendants’ amendments are consequential to the amendment of the plaintiff.

40 Further, if the defendants were required to seek the leave of the Court in making their amendment in that form and had done so, in all the circumstances, I would have given leave to them to do so. I am satisfied that the plaintiff has suffered no prejudice as a consequence of the defendants’ amendments.

41 For the reasons expressed above, the plaintiff’s application is dismissed.

^[7] See The Bell Group Ltd (In Liquidation) & Ors v Westpac Banking Corporation & Ors [2004] WASC 93 per Owen J at [103]; O.D. Transport (Australia) Pty Ltd (In Liquidation) & Ors v O.D. Transport Pty Ltd & Ors [1998] FCA 1653 per Finkelstein J

County Court of Victoria

Burke v Shiells & Anor (Ruling No 3) [2018] VCC 1646 (31 July 2018)