Brown v Australian Broadcasting Corporation & Anor [1999] QSC 396

( J1~q\ •JUSTICE-_._-=-- State Reporting Bureau TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ATKINSON J Writ No 361 of 1992 • ...1 - • ~ • '. • - '-ANTHONY STEPHEN BROWN and THE AUSTRALIAN BROADCASTING CORPORATION and DOUGLAS MURRAY and DOUCLAS GRAHAM MACLENNAN BRISBANE JUDGMENT 1 REVISED COPfES ISSUED State Reporting Bureau Date / / If / Plaintiff First Defendant Second Defendant Third Defendant .Illa Flllllr, Tlae l.:lIV Courts, Getll'gc Street, Brisballe, Q .•tooo Tclcphlllll': (07) J!-t7 -tJfiO Fax: (07) J!-t7 5::.12 -- 1 of 12 -- 230999 T7/JJD24 M/T 6124/99 (Atkinson J) HIS HONOUR: I give leave to the plaintiff to insert the word lIused ll in place of lIemployed ll where it appears in paragraph 13(f) of the statement of claim. The applicant applies to strike out certain paragraphs of the particulars given in paragraph 14 of the further and better particulars, which relate to the imputation pleaded in paragraph 13(f) of the statement of claim, as amended, that the plaintiff was uncaring and/or was recklessly indifferent to the welfare of koalas used by him in the course of his research. The specific paragraphs of the particulars that are objected to are divided by the plaintiff into a number of categories. The first category is particulars dealing with the movement of koalas or the keeping of koalas without authority. These are found in paragraphs 14.3, 14.5, 14.6, 14.7, 14.10, :4.12, 14.13, 14.15, 14.23, 14.24, 14.25, 14.26 and 14.28. These paragraphs repeat paragraphs which were objected to in paragraph 13. Paragraph 14.3 is the same as 13.13; paragraph 14.5 is the same as 13.14; 14.6 and 7 are the same as 13.15 and 16; paragraph 14.10 is the same as paragraph 13.19; paragraph 14.12 is the same as paragraph 13.21 and 14.13 is the same as paragraph 13.22. Paragraph 14.15 is the same as paragraph 13.24; paragraph 14.23 to paragraph 14.26 are the same as paragraph 13.32 to paragraph 13.35 and paragraph 14.28 is the same as paragraph 13.37. As I have previously stated, with regard to those 10 o =,,0 50 subparagraphs, the particulars are capable of giving rise to 40 60 2 JUDGMENT -- 2 of 12 -- 230999 T7/JJD24 M/T 6124/99 (Atkinson J) the imputation that the plaintiff was uncaring and/or was .~ recklessly indifferent to the welfare to the welfare of koalas used by him in the course of his research, particularly where the movement of koalas was, it is alleged, unlawful. They are equally capable of supporting 10 the imputation that those activities in moving koalas were unethical. Accordingly, I would not strike out those ~aragraphs of the particulars. The particulars dealing with the conduct of transmission 20 trials are the next group of particulars and they are, ( ) according to the plaintiff's submissions, 14.2, 14.8, 14.9, 14.11, 14.12, 14.14, 14.26, 14.27, 14.29 to 14.36. Again, these subparagraphs replicate subparagraphs in the particulars given of the justification of the allegation ~b that the activities of the plaintiff in relation to the treatment of koalas were unethical. For the reasons given earlier I regard those paragraphs as being capable of supporting the justification of the imputation that the plaintiff was uncaring and/or was recklessly indifferent to the welfare of those koalas. The next category contains only one subparagraph, which is paragraph 14.16. The submission as to that by the plaintiff is that it is not capable of supporting the imputation. Paragraph 14.16 is a repetition of paragraph 13.25 and it is that: "on or about the date of their return to WKRC, the 20 40 50 plaintiff changed, or caused to be changed, the first .:0 60 3 JUDGMENT -- 3 of 12 -- ~30999 T7/JJD24 M/T 6124/99 (Atkinson J) group of koalas· identification names to Cinderella, Rascal, Ricky and Windsormere respectively thereby falsely representing that these koalas were different koalas to the koalas moved on or about 16 November 1988. 11 It is, of course, not possible to read this subparagraph on its own. It has to be read with the other subparagraphs dealing with the movement of those particular koalas and the fact that they were, it is alleged, kept at the University of Queensland without authorisation, having been moved without authorisation, and the allegation that they were used in transmission trials at the University of Queensland and then, again without authorisation, moved back to WKRC. Read with those subparagraphs, that subparagraph is capable of being a particular of the justification of the allegation and so I would not strike it out. The next category is paragraphs 14.18 to 14.21 which repeat the allegations found in paragraph 13.27 to paragraph 13.30 For the same reasons given with regard to the subparagraphs in paragraph 13, I regard those particulars as capable of supporting a justification of the imputation in this case that the plaintiff was uncaring and/or recklessly indifferent to the welfare of those koalas. If anything the particular are even stronger with regard to that allegation. 4 JUDGMENT -------- 10 o20 . 0: 50 <Ii; 60 -- 4 of 12 -- 230999 T8/RB28 M/T 6124/99 (Atkinson J) The submission of the plaintiff is that if one assumes at its highest that the placement of the male koala into a cage ~ith the infected female koala was intended to bring about the infection of the male koala and that this was a scientifically flawed process, this does not and cannot lead 10 to the inference that the plaintiff was recklessly indifferent to the welfare of the koalas. I find it difficult to understand a submission that ( deliberately infecting an apparently healthy koala for no 20 good scientific purpose is incapable of leading to the ( inference that the plaintiff was recklessly indifferent to the welfare of those koalas. The particulars should not be 'struck out. The next category is paragraph 14.22 which repeats the particular given in paragraph 13.31. It is objected to because the applicant says that the paragraph in its present form is embarrassing because subparagraphs (a) and (b) give 0n -~ 40 not the slightest hint of the basis upon which it is said that the welfare of the koalas was placed at risk by the change of procedure. I need not repeat the findings I made with regard to that 30 50 subparagraph when it was found in paragraph 13. Just as it is capable of supporting the imputation that the activities of the plaintiff were unethical it is also capable of supporting the imputation that the plaintiff was uncaring 60 5 JUDGMENT -- 5 of 12 -- 230999 T8/RB28 M/T 6124/99 (Atkinson J) and recklessly indifferent to the welfare of koalas used by him in the course of his research. There are two new particulars in paragraph 14. They are paragraph 14.37: 10 liOn or about 3 March 1989, the plaintiff placed the koala IIBlossom ll on a daily dose of aloe vera juice and swabbed its infected eyes with a diluted mixture thereof without having a proper or adequate scientific 0'20 basis for doing so. II And paragraph 14.38: C) IIIn or about the middle of 1988, the plaintiff, at the University of Queensland, deliberately infected the eye 3' (0' of a healthy koala with a chlamydia swab taken from the infected eye of another koala without having a proper or adequate scientific basis for doing so. II o It seems to me abundantly clear that paragraph 14.38 is capable of supporting an imputation that the plaintiff was uncaring and was recklessly indifferent to the welfare of koalas. After all, it is an allegation that he deliberately infected the eye of a healthy koala and I would not strike out that particular. 50 However, I do not have the same confidence about the particular pleaded in paragraph 14.37. Read on its own it does not suggest that the plaintiff was uncaring or recklessly indifferent and there are no particulars with 40 60 6 JUDGMENT -- 6 of 12 -- 230999 T8/RB28 M/T 6124/99 (Atkinson J) which it can readily be read in order to make out that imputation. Therefore I think the submission by the plaintiff with regard to that particular is probably well made, and I would be inclined to strike it out. I realise that this is a fairly de minimus result in view of the fate of the rest of the particulars, but there is no suggestion that aloe vera juice would do any harm to the koala, so on balance I would strike out that particular. ( I agree with the submissions of the defendants/respondents .( that the particulars identify specific occasions on which the applicant was uncaring or recklessly indifferent to the welfare of the koalas used by him and that, as I have said, the conduct referred to in the particulars which the exception of the conduct in paragraph 13.37 is capable of supporting the imputation. ( . , / HER HONOUR: I formally give the plaintiff leave to amend paragraph 13(e) of the statement of claim to replace the word IIwas ll with the word IIwere ll • The plaintiff complains of paragraph 16.7 of the particulars for the same reason he complains of paragraph 11.14. It is cap&ble of supporting the imputation that he was an incompetent research scientist in view of a particular lack 7 JUDGMENT 10 20 III 30 ,,),-, .; ...... 40 50 60 -- 7 of 12 -- 230999 T9/FF2 M/T 6124/99 (Atkinson J) of scientific evidence to support the conclusion which has been pleaded. HER HONOUR: An objection is made to paragraph 16.8 of the particulars, which reads that: 10 "Between 1985 and 1990, the plaintiff consistently portrayed the koala as in danger of extinction when he knew, or should have known, that the koala was not so endangered." That repeats the particular given in paragraph 11.15 and as I observed when I dealt with the objection to that ()I paragraph, no complaint has previously been made that that particular needed further particularisation. That is in spite of the fact that an extremely detailed letter of some 27 single spaced pages was sent to the solicitors for the defendants setting out in great detail all the objections to the further and better particulars. It was only today in the application by Mr Couper, and yesterday when the written submissions were filed and perhaps the day before when the application was made with... /(J I'· : ...... ,. regard to paragraph 11.15, that the ground of the objection was said to be that the paragraph was embarrassing because 50 it did not identify the occasions on which, or the terms in which, the plaintiff consistently portrayed the koala as in danger of extinction. 60 8 JUDGMENT ----_._--- -- 8 of 12 -- ( ( 230999 T9/FF2 M/T 6124/99 (Atkinson J) In the face of that new objection, Mr Mulholland has undertaken that the defendants will provide particulars of the occasions they identify on which the plaintiff consistently portrayed the koala as in danger of extinction and also the terms in which the plaintiff did so portray the 10 koala. This should deal with any problem regarding precision but the plaintiff, if it is so advised, could renew its objection if the further particulars as given do not deal 20 with its objection. HER HONOUR: The next paragraph that is objected to is paragraph 16.14 which, in combination with paragraph 16.13, 16.19, 16.21 and 16.36, relate to the conduct of transmission trials against the instruction of Mr MacLennan. These particulars in combination, as the plaintiff submits, amount to an assertion that the conduct by the plaintiff of transmission trials, contrary to the instruction of Mr MacLennan - and I re-word the submission - are particulars of the justification of the allegation that the ',r. ._"J 50 plaintiff was an incompetent research scientist. ~~r Couper objects on the basis that the use of the word "instruction" is rhetorical and that the particulars should be given in less rhetorical terms. The case he relies upon .~j 60 9 JUDGMENT -- 9 of 12 -- 230999 T11/CAL19 M/T 6124/99 (Atkinson J) in support of that submission is Assaf v. Skalkos (unreported, Supreme Court of New South Wales, No. 18374 of 1993: Levine J, 15 December 1997) in particular at page 5, where His Honour found that the terms "insisted" and "refused", in their context, were embarrassing because they 10 were examples of the set of particulars being a narrative containing contentious rhetoric, repeating what he refers to - and I must say I respectfully agree - as the contentious rhetoric found in the imputations pleaded. Here the imputations pleaded do not contain contentious rhetoric. Mr Mulholland says that the word "instructed" is not used as contentious rhetoric. That is precisely what the defendants mean and no other word would convey the meaning in the particular that they mean to convey. In such a situation the word is not contentious rhetoric but 01 is, in fact, a word which conveys the precise meaning which rhe defendants intend to convey and which they will be, ')(\ -" therefore, obliged to prove. Mr Couper also makes similar 40 . o submissions to those made with regard to this subparagraph when it appeared as subparagraph 13.18, and there is no need .' . to traverse those submissions again. They are not accepted for the same reasons. 30 50 There is a further matter. There is a question of whether or not the allegation of a failure to obey an instruction not to conduct transmission trials under any circumstances could give rise to the imputation that the plaintiff was an -Ie 60 10 JUDGMENT _._-_._--- -- 10 of 12 -- ~30999 Tll/CAL19 M/T 6124/99 (Atkinson J) incompetent research scientist. While the matter is not free from doubt I am of the opinion that it could give rise to that imputation and, therefore, is properly included as a particular of the justification of that imputation and so I would not strike it out on any of those bases. 10 HER HONOUR: I am satisfied that the particulars which have already been dealt with in this judgment are capable of 20 ~iving rise to the other imputations for which they are ( pleaded, and my ruling on those particulars is the same. HER HONOUR: I give the defendants leave to re-word paragraph 19.19 on the basis that ! can see how those facts could support a justification of the imputation, but as presently worded they are not apt to support that 20 imputation, then I give leave to re-word it so that they do. 40 HER HONOUR: with regard to the particulars given of the justification of subparagraphs 13(m) and (0) of the 50 statement of claim, that the plaintiff knowingly conducted himself in an unlawful manner in the course of his research and that he was deceitful, they repeat allegations already made in earlier particulars. I am satisfied for similar ~G 60 11 JUDGMENT -- 11 of 12 -- 230999 T18/LZG14 M/T 5081/99 (Atkinson J) reasons that the particulars are capable of giving rise to the justification plea and accordingly I would not strike them out. HER HONOUR: So it is written submissions in reply and any application that you feel you wish to make - 21 October, and for reply by 28 October. 12 JUDGMENT - ----------_._--- 10 20 I,·' 30 ,", ~ ...., .. ' 50 o 0' 60 -- 12 of 12 --