Some further authorities
40 In Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107, two articles were the subject of the proceedings. That case involved a challenge to the trial judge having struck out certain paragraphs of the statement of claim ruling that the two articles must necessarily be read as one. McColl JA, with whom Mason P and Beazley JA agreed, after referring to Hodgson and Gordon, noted (at [52]) that the decision in Gordon had frequently been cited to support what Levine J referred to in Tsvangirai as a "strike in" order, which was usually made to require a plaintiff to plead additional parts of a single matter complained of. Her Honour said (at [53]) that such an order may be made in relation to separate publications where, as Hunt J said in Burrows at 655, the plaintiff was entitled, or might be obliged, to have two separate publications considered together in order to determine the sense in which either was understood, provided that they were sufficiently connected and identified with each other.
41 McColl JA then proceeded (at [56]) to hold that the trial judge's decision was correct in that the manner in which the two articles were presented was such that the ordinary reasonable reader would have read them as one publication because they were inseparably linked. As each qualified the other, it was incumbent upon the plaintiff to include within his pleading every passage which materially altered or qualified the complexion of the imputations of which he complained.
42 The issue was revisited by this Court in The Age Corporation Ltd v Beran [2005] NSWCA 289. Hodgson JA, with whom Beazley JA and Brownie AJA agreed, after referring to the decisions in Phelps, Burrows, Gordon, Beran and Tsvangirai, made the following observations which are pertinent to the present case:
"41. In my opinion, McColl JA endorsed Phelps , but held that the relationship between the two parts published in The Sydney Morning Herald was such that, not only could the two parts properly be seen as a single publication, but that this was the only view reasonably open. McColl JA held in effect that this was not one of those cases, referred to at [10] in Phelps , where reasonably-minded people could consider either classification, that is as a single entity or as a number of entities, to be valid.
42 There may be cases where reasonably-minded people could consider either classification valid, so that it is prima facie open for a plaintiff to plead the parts as individual publications, and also plead their combination as a publication, but nevertheless where this should not be permitted because it introduces confusion and complexities into the case wholly unwarranted by any advantage to the plaintiff, and thus can be considered embarrassing. It is possible that this was the approach taken by Adams J in the Plaintiff's case against John Fairfax, and that McColl JA endorsed this as a further reason for dismissing the appeal.
43 The question then is, is the material as published in The Age such that the only view reasonably open is that this was one publication? In my opinion, plainly not. No part of the second section of The Age material appeared on page 1; and the first section on page 1 did not indicate that what was on page 13 was to be read together with what was on page 1 as part of the same whole. There were none of the indications of unity of the two sections displayed in The Sydney Morning Herald material and referred to earlier. Reasonable readers could well read what appeared on page 1 of The Age and not read what appeared on page 13. In my opinion, this was a case where reasonably-minded people could regard the two sections as separate publications, and could also regard them as part of a whole: that is, they could regard both possible classifications as being valid."
43 Reference should also be made to the decision of Nicholas J in Sandilands v Channel 7 Pty Ltd [2005] NSWSC 1250. In that case, the defendant sought to strike out the plaintiff's further amended statement of claim in which he had pleaded two publications of the defendant, submitting that the plaintiff should be directed to plead those two publications, together with another separate publication by the defendant of which the plaintiff had not complained, as one publication. The relevant program was "Today Tonight" and the complaint related to promotional material screened three days prior to the program's broadcast and a further follow up of the program the day after its broadcast - the latter not being the subject of the matter complained of.
44 The defendant alleged that by failing to plead a composite publication, the plaintiff had unreasonably excluded the content of the second program which had the capacity to materially alter or qualify the sense of the matters complained of. It was submitted that it was not necessary for the defendant to establish that material in one publication must have been understood as materially altering or qualifying the complexion of the others, because it was sufficient that it may have been so understood. Gordon and Hodgson were cited as authorities for that proposition.
45 Nicholas J quoted the relevant passages from the judgment of Hunt J in Burrows, and then noted (at [14]) that it was argued that, consistent with those principles articulated in Burrows, the defendant was entitled to require the plaintiff to plead separate publications that were sufficiently identified and linked with each other as one publication. After citing [41]-[43] from the judgment of Hodgson JA in The Age Corporation (which I have set out in [42] above), his Honour concluded in the following terms:
"22. … Where the publications are transient in nature, such as radio and television broadcasts, significant weight will ordinarily be given to the intervals between them, to the context of other matter in which each was presented and to the commonality or diversity of their content. The question should usually be resolved by taking a common sense approach to the evidence.
23. It follows that questions of imputations or meaning will not arise until the content of the matter complained of in each case has been determined. A 'strike in' order which requires the plaintiff to plead the whole of the publication is ordinarily available to the defendant only where a viewing (reading or listening) of the whole is capable of altering or qualifying a defamatory meaning claimed to be conveyed by the part which the plaintiff has chosen to plead. Gordon and Ron Hodgson do not assist in defining the scope and content of a publication claimed to contain a libel. Their relevance is to the issue of the meaning of the matter found to have been published.
24. In this case each broadcast is of and concerning the plaintiff. The vital question is whether the only view reasonably open is that the promotion, the program and the second program constituted one publication. Unlike a newspaper case in which a number of related articles are published in the one edition, this is not a case in which there are difficulties of delineation. The differences between the occasion and content of each broadcast is self evident from a viewing of each, and from the transcripts. Each is discreet although related, and each is arguably defamatory of the plaintiff. In my opinion each broadcast is separate and distinct from the other and is separately actionable at the suit of the plaintiff."
46 Finally, I refer to the recent judgment of Nicholas J in Waites v Macquarie Radio Network Ltd [2006] NSWSC 507. In that case the publication originally pleaded consisted of matter from a talk-back radio program presented by Mr Alan Jones. The defendant sought an order that the plaintiffs be directed to include additional matter from a later radio program presented by Mr Ray Hadley as part of that publication. It was therefore a "strike in" application. The plaintiffs had pleaded six items as one publication from the Jones' program, the first of which was broadcast at 6.18am and the last at about 9.35am. Each item was between two and three minutes duration. The intervals between each varied considerably - from four minutes to 84 minutes. It was common ground that during the intervals other unrelated matters were broadcast including advertisements and news items.
47 The matter complained of concerned advice given by the first plaintiff (an Assistant Commissioner of Police) to the Federal Minister, Mr Tony Abbott, to cancel a debate with Ms Julia Gillard at the University of Sydney on voluntary student unionism because the police could not guarantee his safety.
48 At 10.06am the Hadley program, which was also in talkback format, commenced with an item of about one minute's duration concerning the first plaintiff's advice to Mr Abbott. The defendant then broadcast four more items concerning the first plaintiff over the period to about 11.22am. Like the items in Jones' program, the items were, except for one, between one and four minutes duration. There were intervals of various lengths between the items during which unrelated matter was broadcast. The plaintiffs had not sued on the Hadley program.
49 The defendant challenged the plaintiffs' pleading, seeking an order requiring them to plead both programs as a single composite publication. The defendant submitted that it was unreasonable that the programs had not been pleaded in this way. This was because, at the end of his program, Mr Jones had invited police and others to call in, and the opening items in Mr Hadley's program demonstrated a direct connection between the two so that they were inseparably linked and qualified each other. It was submitted that in the circumstances the ordinary reasonable listener might be expected to have heard and understood them as if they were one broadcast. It was argued that the material in the combined items in the Hadley program were capable of affecting certain of the imputations concerning the first plaintiff which he had pleaded with respect to the Jones program.
50 Nicholas J referred to the defendant's submission that, consistent with the principles in Gordon and Burrows, it was entitled to require the plaintiffs to plead separate publications which were sufficiently identified and linked with each other as one publication. After referring to recent authorities which had considered the principles relevant to the questions raised by the defendant and to which his Honour had referred in Sandilands, he observed (at [15]) that:
" … the success of the defendant in a 'strike in' application requires clearing two hurdles. The first is to establish that the omitted matter is an inseparable component of the publication. The second, after delineation of the publication by which the plaintiff claims a libel is conveyed, is to establish that the omitted matter is capable of affecting the sense or imputation(s) conveyed by the matter which the plaintiff has pleaded."
51 His Honour then continued in these terms:
"17. It is fundamental to the proper application of the principles to have regard to the circumstances of the particular case. In my opinion, for example, it is unrealistic to consider items in a talkback radio program in the same way as one considers separate articles published in the same edition of a newspaper or the chapters in a book. A listener to several conversations on the same subject between different participants and the presenter during a talkback radio program cannot necessarily be equated with a reader of several related articles contained in the same edition of a newspaper or with the reader of serialised editions of a book published over a number of days (eg Beran ; Burrows )."
52 His Honour then stated (at [18]) that the question and answer format is a feature of a talkback radio program. He considered that a segment involving one participant and the presenter may reasonably be regarded as the broadcast of a conversation, discrete and separate from earlier and later segments involving other participants and the same or a different presenter. The matter broadcast would not be understood as a continuous conversation but as a series of separate conversations between different participants separated by intervals of varying duration. The relevant context in which the published words would be understood would usually be contained in the questions and answers which conveyed them and those which immediately preceded and followed them.
53 Nicholas J then referred (at [19]) to the observation of Simpson J in Phelps that a plaintiff was entitled to mark out the playing field in the sense that he or she may select the matter of which he or she complains and in the pleading identify the limits of the publication claimed to convey the defamatory imputation. Nicholas J nevertheless considered that the pleading may be struck out as unreasonable or so unfair as to amount to abuse of process if it has omitted matters which should have been included as part of the publication and which affect its meaning.
54 In the case at hand, however, his Honour considered (at [20]) that the question was whether the only view reasonably open was that the Jones and Hadley programs constituted one publication. There were in his opinion differences between each which were apparent from listening to them and from the transcripts. In particular, his Honour considered (at [23]) that in the circumstances in which the components of the two programs were broadcast, a listener would not necessarily have heard the programs as one publication. An ordinary reasonable listener to the Jones program may well have not listened to the Hadley program. After referring to The Age Corporation at [43] , his Honour concluded (at [23]) in these terms:
"It is difficult to see how it could be said that anything in the later program constituted the context in which anything in the Jones' program would have been understood. That it was suggested in the earlier program that more may be said about the first plaintiff in the later provides no foundation for a finding that both were so inextricably connected that they constituted one publication nor does the fact that the later referred to, and repeated, statements made in the earlier program concerning the first plaintiff."