Bates v Queensland Newspapers Pty Ltd [1994] QSC 219 [1996] 1 Qd R 13

0 .4_ sc_q-<~-J~11 g;y~lj,JI'IfJ;; 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 ./ KIEFEL J Writ No 1324 of 1993 VICTOR WALTER BATES and WILLIAM JOHN BATES and CLIFFORD ERNEST DEE and VACIK INVESTMENTS PTY LTD and VACIK PTY LTD and WESTERN SKINS PTY LTD and QUEENSLAND NEWSPAPERS PTY LTD and FIA GUMMING BRISBANE .. DATE 01/08/94 JUDGMENT 1 REVISED COP!ES ISSUED State RGporting Bureau Date ::>; l?"I First Plaintiff Second Plaintiff Third Plaintiff Fourth Plaintiff Fifth Plaintiff Sixth Plaintiff First Defendant Second Defendant 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 4 -- 010894 T 3/LAM M/T 4566/94 (Kief~l J) HER HONOUR: This is the matter of Bates against Queensland Newspapers. The plaintiffs seek to strike out paragraph 7 of the defence on the basis that it is not a proper plea of section 377 of the criminal code. The difficulty is said to arise because the fact of publication in good faith referred to in the section is not pleaded although the occasion for privilege is. Section 377 provides a lawful excuse for the publication of what is otherwise defamatory in certain circumstances, the occasion of the privilege. Each subsection setting out the particular circumstances when it will be available, is preceded by the words "if the publication is made in good faith .. ". Section 378 then provides: "When any question arises whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made under circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of 10 20 { proof of the absence of good faith lies upon the party 30 alleging such absence. Section 377 read alone appears to place proof of the fact of good faith in publication on the plaintiff. Section 378, however, makes it clear that the burden of proving the absence of it lies on the plaintiff; see Motel Holdings Ltd v. 40 Bulletin Newspaper Co Pty Ltd (1963) State Reports NSW, 208, 211. In that case the New South Wales Court of Appeal held that the course of pleadings in a case involving these pleas of privilege (sections 17 and 18 of the then New South Wales Act having followed the Queensland provisions) followed the so burden of proof which required the pLaintiff to raise. any issue concerning good faith; that is to say. lai::k of it, in the reply. 60 2 JUDGMENT -- 2 of 4 -- 010894 T 3/LAM M/T 4566/94 (Kief§l J) There being no issue about it until the plaintiff raised the question, the defendant ought not, following established principles of pleading, plead something in advance and as to an issue which might not arise at all. I agree, with respect, with the reasoning of Sugarmen J. Consistent with the view that it is an unnecessary allegation are the comments of the Court of Appeal in Queensland in Hill v. Conben (1993) 1 QR 603, 606 and 607. In my view sections 377 and 378 have the effect that an absence of good faith becomes material when the occasion of privilege is otherwise made out. In that circumstance the plaintiff may raise the absence of good faith to show the occasion of privilege was abused, in which case the defence· would fail. If the plaintiff does not so plead a presumption that the publication had been made with a proper motive would operate in the plaintiffs favour. On the view I take the sections would then operate in the way referred to by Griffiths CJ in Ronald v. Harper (1910) 11 CLR 63, although His Honour was not concerned there with these sections. Reference was made in Motel Holdings and in submissions for the plaintiff here as to what might be the current practice of pleading, although the plaintiff did not seem to press the point. If there were today such a practice t~ere would seem to 10 20 30 40 50 me to be good reason to depart from it. If a defendant pleaded the fact of publication in good faith, there may be unnecessary and fruitless interlocutory applications for particulars and discovery although here the plaintiff says that particulars would not be sought. In these circumstances I 60 3 JUDGMENT -- 3 of 4 -- 010894 T 3/LAM M/T 4566/94 (Kief§l J) am left to wonder what the purpose of requiring the defendant to plead good faith is thought to be, since leave to amend was obviously a course the Court might consider. Whilst I did not attribute such a motive to the plaintiffs here, it seems to me that the only benefit a plaintiff might be concerned with is a forensic one; that is to say, perhaps to use the positive allegation of good faith on the part of the defendant before a jury in cross-examination or address. Even a full explanation as to the onus of proof may not, in those circumstances, remove confusion from the mind of the jury. As a question of practice, there therefore seems to me to be good reason for the matter not to be pleaded by the defendant. The defendant is not here required to plead that part of section 377 and the application fails. I should also add that I would have thought that Order 22 rule 12 of the Supreme Court Rules applied in this case and that the assertion in paragraph 7 that there was lawful excuse was sufficient averment, but the defendant did not seek to rely upon it and on the view I have taken it was not necessary to do so. The order will be that the application is dismissed and that the plaintiffs pay the defendants' costs of and incidental to the application to be taxed. 4 JUDGMENT 10 20 30 40 50 60 -- 4 of 4 --