Supreme Court Amendment Rules 2007

Supreme Court Amendment Rules 2007

20 April 2007

We, the Honourable Peter George Underwood, Officer of the Order of Australia, Chief Justice, and the Honourable Ewan Charles Crawford, the Honourable Pierre William Slicer and the Honourable Peter Ethrington Evans, Puisne Judges of the Supreme Court of Tasmania, on the recommendation of the Rule Committee, make the following Rules of Court under the Supreme Court Civil Procedure Act 1932 .

1.   Short title

These Rules of Court may be cited as the Supreme Court Amendment Rules 2007 .

2.   Commencement

These Rules of Court take effect on the day on which their making is notified in the Gazette.

3.   Principal Rules

In these Rules of Court, the Supreme Court Rules 2000 are referred to as the Principal Rules.

4.    Rule 5 amended (Interpretation)

Rule 5 of the Principal Rules is amended by inserting after the definition of Convention country the following definition:

corporation has the same meaning as in the Corporations Act;

5.    Rule 32 amended (Indexes of judgments, orders and files)

Rule 32 of the Principal Rules is amended as follows:

(a) by omitting paragraph (a) from subrule (1) ;

(b) by omitting subrules (3) and (4) and substituting the following subrule:

(3)  An index or register referred to in subrule (1) is to be accessible to the public during office hours on payment of the prescribed fee.

6.    Rule 239 rescinded

Rule 239 of the Principal Rules is rescinded.

7.    Part 7, Division 18A inserted

After rule 263 of the Principal Rules , the following Division is inserted in Part 7:

Division 18A - Defamation actions

263A.   Pleadings to give necessary particulars

(1)  A pleading in a defamation action must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.

(2)  The particulars to be given must be set out in the pleading or, if that is inconvenient, set out in a separate document referred to in the pleading and filed with the pleading.

263B.   Allegations in statements of claim generally

(1)  A statement of claim seeking relief in relation to the publication of defamatory matter must not contain any allegation that the matter or its publication was false, malicious or unlawful.

(2)  A statement of claim seeking relief in relation to the publication of defamatory matter must –

(a) subject to subrule (3) , specify each imputation on which the plaintiff relies; and

(b) allege that the imputation was defamatory of the plaintiff.

(3)  A plaintiff in proceedings for defamation must not rely on 2 or more imputations alleged to be made by the defendant by means of the same publication of the same matter unless the imputations differ in substance.

(4)  The particulars required by rule 263A(1) in relation to a statement of claim seeking relief in relation to the publication of defamatory matter must include the following:

(a) particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified;

(b) particulars of any publication, or circulation or distribution, of the matter complained of on which the plaintiff relies on the question of damages, sufficient to enable the publication, circulation or distribution to be identified;

(c) if the plaintiff alleges that the matter complained of had a defamatory meaning other than its ordinary meaning, particulars of the facts and matters on which the plaintiff relies to establish that defamatory meaning, including the following:

(i) full and complete particulars of the facts and matters relied on to establish a true innuendo;

(ii) the class of persons, or the name of each person, to whom those facts and matters were known;

(d) if the plaintiff is not named in the matter complained of –

(i) particulars of the identification of the plaintiff in the matter complained of; and

(ii) the class of persons, or name and address of each person, to whom any such particulars were known;

(e) particulars of each part of the matter complained of that is relied on by the plaintiff in support of each pleaded imputation.

(5)  The following documents must be filed and served with a statement of claim, or amended statement of claim, seeking relief in relation to the publication of defamatory matter and must be referred to in the statement of claim or amended statement of claim:

(a) a legible photocopy of the original publication or, in the case of an internet, email or other computer-displayed publication, a printed copy of the original publication;

(b) a typescript, with numbered lines, of –

(i) if the original publication is in English, the text of the original publication; or

(ii) if the original publication is not in English, a translation into English of the text of the original publication.

(6)  The particulars required by rule 263A(1) in relation to a statement of claim seeking relief in relation to the publication of defamatory matter about a corporation must include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that the corporation is not precluded from asserting a cause of action for defamation.

(7)  The plaintiff must give –

(a) particulars of facts, matters and circumstances on which the plaintiff will rely in support of a claim for aggravated damages; and

(b) particulars of facts, matters and circumstances on which the plaintiff will rely in support of a claim for exemplary damages; and

(c) particulars of any claim the plaintiff makes –

(i) by way of special damages; or

(ii) for general loss of business or custom.

263C.   Defamation defences generally

(1)  Subject to rules 263D to 263L , a defendant in proceedings for defamation must plead a defamation defence specifically.

(2)  If the plaintiff in defamation proceedings complains of 2 or more imputations, the pleading of any of the following defences must specify each imputation to which the defence is pleaded:

(a) a defence under section 15 of the Defamation Act 1957 ;

(b) a defence under section 25 or 26 of the Defamation Act 2005 ;

(c) a defence of justification at common law.

(3)  Unless the court or a judge orders otherwise, the particulars of a defamation defence required by rule 263A(1) must include particulars of the facts, matters and circumstances on which the defendant relies to establish –

(a) that any imputation, notice, report, comment or other material was, or related to, a matter of public interest; or

(b) that any imputation was published under qualified privilege; or

(c) that any imputation or contextual imputation was true or was a matter of substantial truth; or

(d) that any material being proper material for comment was a matter of substantial truth.

(4)  If a defendant in proceedings for defamation intends to make a case in mitigation of damages by reference to one or more of the following, the defendant must give particulars of the facts, matters and circumstances on which the defendant relies to make that case:

(a) the circumstances in which the publication complained of was made;

(b) the reputation of the plaintiff;

(c) any apology for, or explanation, correction or retraction of, any imputation complained of;

(d) any recovery proceedings, receipt or agreement to which section 38(1)(c) , (d) or (e) of the Defamation Act 2005 applies.

(5)  If a defendant in proceedings for defamation intends to show, in mitigation of damages, that any imputation complained of was true or was a matter of substantial truth, the defendant must –

(a) give particulars identifying the imputation and stating that intention; and

(b) give particulars of the facts, matters and circumstances the defendant relies on to establish that the imputation was true or was a matter of substantial truth.

263D.   Defence of justification

(1)  Subject to rule 263C(2)  –

(a) a defence of justification under section 15 of the Defamation Act 1957 is sufficiently pleaded if it alleges that the imputation in question was true; and

(b) a defence of justification under section 25 of the Defamation Act 2005 or at common law is sufficiently pleaded if it alleges that the imputation in question was substantially true.

(2)  Without limiting rule 263C , the particulars required by rule 263A(1) for a defence of justification under section 15 of the Defamation Act 1957 , under section 25 of the Defamation Act 2005 or at common law must, unless the court orders otherwise, include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation in question was true or substantially true.

263E.   Defence of contextual truth

(1)  Subject to rule 263C(2) , a defence under section 26 of the Defamation Act 2005 is sufficiently pleaded if it –

(a) specifies one or more imputations on which the defendant relies as being contextual to the defamatory imputation in question; and

(b) alleges that each contextual imputation on which the defendant relies was substantially true; and

(c) alleges that the defamatory imputation in question did not further harm the reputation of the plaintiff because of the contextual imputations on which the defendant relies.

(2)  Without limiting rule 263C , the particulars required by rule 263A(1) for a defence of contextual truth under section 26 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the contextual imputations on which the defendant relies are substantially true.

263F.   Defence of absolute privilege

(1)  This rule applies to a defence of absolute privilege –

(a) under section 27 of the Defamation Act 2005 ; and

(b) at common law.

(2)  A defence to which this rule applies is sufficiently pleaded if it alleges that the matter complained of was published under absolute privilege.

(3)  Without limiting rule 263C , the particulars required by rule 263A(1) for a defence to which this rule applies must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation or matter complained of was published under absolute privilege.

263G.   Defence for publication of public documents

(1)  In this rule –

public document has the same meaning as in section 28 of the Defamation Act 2005 .

(2)  A defence under section 28 of the Defamation Act 2005 is sufficiently pleaded if it alleges that the matter complained of was contained in –

(a) a public document or a fair copy of a public document; or

(b) a fair summary of, or a fair extract from, a public document.

(3)  Without limiting rule 263C , the particulars required by rule 263A(1) for a defence under section 28 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the matter complained of was contained in –

(a) a public document or a fair copy of a public document; or

(b) a fair summary of, or a fair extract from, a public document.

263H.   Defence of fair report of proceedings of public concern

(1)  A defence under section 29 of the Defamation Act 2005 is sufficiently pleaded if –

(a) it alleges that the matter complained of was, or was contained in, a fair report of any proceedings of public concern; or

(b) it alleges that –

(i) the matter complained of was, or was contained in, an earlier published report of proceedings of public concern; and

(ii) the matter complained of was, or was contained in, a fair copy of, a fair summary of or a fair extract from the earlier published report; and

(iii) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

(2)  Without limiting rule 263C , the particulars required by rule 263A(1) for a defence under section 29 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish –

(a) that the matter complained of was, or was contained in, a fair report of any proceedings of public concern; or

(b) that –

(i) the matter complained of was, or was contained in, an earlier published report of proceedings of public concern; and

(ii) the matter complained of was, or was contained in, a fair copy of, a fair summary of or a fair extract from the earlier published report; and

(iii) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

263I.   Defence of qualified privilege

(1)  This rule applies to –

(a) a defence of qualified privilege under section 30 of the Defamation Act 2005 ; and

(b) any other defence of qualified privilege other than –

(i) a defence under section 16 of the Defamation Act 1957 or section 28 , 29 or 31 of the Defamation Act 2005 ; or

(ii) a defence of fair comment at common law.

(2)  A defence to which this rule applies is sufficiently pleaded if it alleges that the matter complained of was published under qualified privilege.

(3)  Without limiting rule 263C , the particulars required by rule 263A(1) for a defence to which this rule applies must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation or matter complained of was published under qualified privilege.

263J.   Defence of honest opinion

(1)  A defence under section 31 of the Defamation Act 2005 is sufficiently pleaded if –

(a) it alleges that the matter complained of was an expression of opinion –

(i) of the defendant, rather than a statement of fact; or

(ii) of an employee or agent of the defendant, rather than a statement of fact; or

(iii) of a commentator, other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and

(b) it alleges that the opinion related to a matter of public interest; and

(c) it alleges that –

(i) the opinion was based on proper material and no other material; or

(ii) the opinion was an opinion based to some extent on proper material and represented an opinion that might reasonably be based on that material to the extent to which it was proper material.

(2)  Without limiting rule 263C , the particulars required by rule 263A(1) for a defence under section 31 of the Defamation Act 2005 must include –

(a) particulars identifying the material on which it is alleged that the matter alleged to be an opinion was an opinion and identifying to what extent that material is alleged to be proper material; and

(b) particulars of the facts, matters and circumstances on which the defendant relies to establish that the material alleged to be proper material was proper material; and

(c) if the defendant relies on a defence under section 31(2) of that Act, particulars identifying the employee or agent of the defendant whose opinion it is alleged to be; and

(d) if the defendant relies on a defence under section 31(3) of that Act, particulars identifying the commentator whose opinion it is alleged to be.

263K.   Defence of fair comment

(1)  A defence of fair comment at common law is sufficiently pleaded if it alleges that the matter complained of was a comment that –

(a) was based on –

(i) true fact; or

(ii) material that was published under privilege; and

(b) related to a matter of public interest; and

(c) was made honestly by the defendant.

(2)  Without limiting rule 263C , the particulars required by rule 263A(1) for a defence of fair comment at common law, or a defence under section 14 of the Defamation Act 1957 , must include –

(a) particulars identifying the material on which it is alleged that the matter alleged to be a comment was a comment and identifying to what extent that material is alleged to be based on true fact or material that was published under privilege; and

(b) particulars of the facts, matters and circumstances on which the defendant relies to establish that –

(i) the material alleged to be true fact was true fact; or

(ii) the material alleged to be published under privilege was published under privilege.

263L.   Defence of innocent dissemination

(1)  A defence under section 32 of the Defamation Act 2005 is sufficiently pleaded if it alleges that –

(a) the defendant published the matter complained of merely in the capacity, or as an employee or agent, of a subordinate distributor; and

(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and

(c) the defendant's lack of knowledge was not due to any negligence on the part of the defendant.

(2)  Without limiting rule 263C , the particulars required by rule 263A(1) for a defence under section 32 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that –

(a) the defendant published the matter complained of merely in the capacity, or as an employee or agent, of a subordinate distributor; and

(b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and

(c) the defendant's lack of knowledge was not due to any negligence on the part of the defendant.

263M.   Defence of triviality

(1)  A defence under section 9(2) of the Defamation Act 1957 or section 33 of the Defamation Act 2005 is sufficiently pleaded if it alleges that the circumstances of publication of the matter complained of were such that the plaintiff was unlikely to sustain any harm.

(2)  Without limiting rule 263C , the particulars required by rule 263A(1) for a defence under section 9(2) of the Defamation Act 1957 or section 33 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the circumstances of publication of the matter complained of were such that the plaintiff was unlikely to sustain any harm.

263N.   Particulars concerning grounds that defeat defamation defences

If a plaintiff intends to meet a defamation defence by –

(a) alleging that the defendant was actuated by express malice in the publication of the matter complained of; or

(b) relying on any matter which, under the Defamation Act 2005 , defeats the defence –

the particulars required by rule 263A(1) in relation to the reply must include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that allegation or matter of defeasance.

8.    Part 13, Division 2A inserted

After rule 403 of the Principal Rules , the following Division is inserted in Part 13:

Division 2A - Preliminary discovery

403A.   Interpretation of Division 2A of Part 13

In this Division –

applicant means an applicant for an order under this Division;

description, in relation to a person, includes the name, place of residence, place of business, occupation and sex of the person and whether the person is an individual or a corporation;

possession includes custody and power.

403B.   Privilege

An order made under this Division may not require the person against whom the order is made to produce any document or answer any question which, on the ground of privilege, the person could not be required to produce –

(a) in the case of an order under rule 403C or 403E , if the applicant had commenced a proceeding against the person; or

(b) in the case of an order under rule 403D or 403F , if the applicant had made the person a party to a proceeding to which the applicant is a party.

403C.   Discovery to identify a defendant

(1)  The Court or a judge may make an order under subrule (2) if –

(a) the applicant is unable to ascertain through reasonable inquiries the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this rule called "the person concerned"); and

(b) it appears that another person –

(i) has or is likely to have knowledge of facts tending to assist in ascertaining such a description; or

(ii) has or is likely to have, or has had or is likely to have had, in that other person's possession any document or thing tending to assist in ascertaining such a description.

(2)  The Court or a judge may order the person referred to in subrule (1)(b) , or if that person is a corporation, the corporation by an appropriate officer, to –

(a) attend before the Court, a judge or an officer to be orally examined in relation to the description of the person concerned; or

(b) make discovery to the applicant of all documents which are or have been in his, her or its possession and which relate to the description of the person concerned.

(3)  If the Court or a judge makes an order under subrule (2)(a) , the Court or judge may order the person against whom, or the corporation against which, the order is made to produce on the examination any document or thing in his, her or its possession which relates to the description of the person concerned.

403D.   Rule 403C applies in relation to party to proceeding

Rule 403C also applies, with any necessary modification, if –

(a) the applicant is a party to a proceeding and wishes to make a claim in the proceeding against a person who is not a party to the proceeding; and

(b) the applicant could properly have made the claim in the proceeding if the person had been a party.

403E.   Discovery from prospective defendant

If –

(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained; and

(b) after making all reasonable inquiries, the applicant does not have sufficient information to enable a decision to be made as to whether or not to commence a proceeding in the Court to obtain that relief; and

(c) there is reasonable cause to believe that –

(i) that person has or is likely to have, or has had or is likely to have had, in that person's possession any document relating to the question whether the applicant has the right to obtain the relief; and

(ii) inspection of the document by the applicant would assist in making the decision –

the Court or a judge may order that person to make discovery to the applicant of any document of the kind described in paragraph (c) .

403F.   Rule 403E applies in relation to party to proceeding

Rule 403E also applies, with any necessary modification, if –

(a) the applicant is a party to a proceeding and there is reasonable cause to believe that the applicant has or may have the right to obtain relief against a person who is not a party; and

(b) the applicant could properly have claimed such relief in the proceeding if the person had been a party.

403G.   Costs and expenses of compliance

(1)  The Court or a judge may order the applicant to pay the amount of any reasonable loss or expense incurred by a person in complying with an order under this Division.

(2)  If an order is made under subrule (1) , the Court or a judge must fix the amount or direct that it be fixed in accordance with the Court's usual procedure in relation to costs.

403H.   Costs orders in other proceedings

When an order is made under rule 403C or 403E , the Court or a judge may make an order that a party to other proceedings pay the costs of the applicant of and incidental to the application in respect of which that order was made.

9.    Rule 407 rescinded

Rule 407 of the Principal Rules is rescinded.

10.    Rule 469 rescinded

Rule 469 of the Principal Rules is rescinded.

11.    Rule 500C amended (Disposal of documents and things produced)

Rule 500C of the Principal Rules is amended by omitting subrules (3) and (4) .

12.    Rule 502 amended (Affidavits generally)

Rule 502 of the Principal Rules is amended by inserting after subrule (2) the following subrule:

(3)  Unless the Court or a judge otherwise orders or directs, evidence of an opinion, contained in an affidavit, about the existence of a fact is not to be used to prove the existence of that fact unless –

(a) the deponent has specialised knowledge based on his or her training, study or experience; and

(b) the opinion is wholly or substantially based on that knowledge; and

(c) the affidavit contains –

(i) the qualifications of the deponent to give evidence as an expert; and

(ii) the facts, matters and assumptions on which the opinion is based (a letter of instruction may be attached); and

(iii) the reasons for the opinion; and

(iv) references to any literature or other materials specifically relied on in support of the opinion; and

(v) any examinations, tests or other investigations relied on in support of the opinion; and

(vi) any qualification of the opinion without which the statement in the affidavit is or may be incomplete or inaccurate; and

(vii) if, because of insufficient research, insufficient data or any other reason, the opinion is not a concluded opinion, a statement to that effect.

13.    Rule 516 substituted

Rule 516 of the Principal Rules is rescinded and the following rule is substituted:

516.   Service of statement of expert evidence

(1)  In this rule –

expert means a person who has specialised knowledge based on his or her training, study or experience.

(2)  If a party intends at trial to adduce the oral evidence of an expert witness, the party is to serve on every other party a statement signed by the witness containing –

(a) the name and address of the witness; and

(b) the qualifications of the witness to give evidence as an expert; and

(c) the substance of the evidence that the party proposes to adduce from the witness as an expert; and

(d) the facts, matters and assumptions on which each opinion expressed in the statement is based (a letter of instruction may be attached); and

(e) the reasons for each opinion expressed in the statement; and

(f) references to any literature or other materials specifically relied on in support of each opinion expressed in the statement; and

(g) any examinations, tests or other investigations relied on in support of each opinion expressed in the statement; and

(h) any qualification of an opinion expressed in the statement without which the statement is or may be incomplete or inaccurate; and

(i) if, because of insufficient research, insufficient data or any other reason, an opinion expressed in the statement is not a concluded opinion, a statement to that effect.

(3)  The statement is to be served –

(a) on or before the date fixed by order of a judge, being a date before the trial; or

(b) if no such date is fixed, within a reasonable time before the commencement of the trial.

14.    Rule 584 amended ( Division 1 and Division 4 to apply)

Rule 584(2) of the Principal Rules is amended by omitting "and rule 469 apply" and substituting "applies".

15.    Rule 779 substituted

Rule 779 of the Principal Rules is rescinded and the following rule is substituted:

779.   Attorney-General not party to proceeding

If the Attorney-General of the Commonwealth or of a State or Territory makes an application under the Cross-vesting Act for the transfer of a proceeding, the Attorney-General does not, by reason of the application, become a party to that proceeding.

P. G. UNDERWOOD

Chief Justice

E. C. CRAWFORD

Puisne Judge

P. W. SLICER

Puisne Judge

P. E. EVANS

Puisne Judge

Countersigned,

I. G. RITCHARD

Registrar

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 2 May 2007

These Rules of Court are administered in the Department of Justice.

EXPLANATORY NOTE

(This note is not part of the rule)

These Rules of Court amend the Supreme Court Rules 2000 by –

(a) replacing certain provisions relating to defamation actions and specifying further requirements for pleadings in defamation actions; and

(b) providing for preliminary discovery of documents; and

(c) providing for the use of expert evidence in affidavits; and

(d) further providing for the service of statements of expert evidence; and

(e) making minor miscellaneous and consequential amendments.