ABC v Obeid

LEGISLATION CITED: Defamation Act 1974 District Court Rules, Pt 9, r 7

The Age Corporation Ltd v Beran [2005] NSWCA 289 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Bennette v Cohen [2005] NSWCA 341, 64 NSWLR 81 Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 Burrows v Knightley (1987) 10 NSWLR 651 Gerlach v Clifton Bricks Pty Limited [2002] HCA 22, 209 CLR 478 Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 CASES CITED: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 (note) Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Sandilands v Channel 7 Pty Ltd [2005] NSWSC 1250 Theophanaous v Herald & Weekly Times Ltd (1984) 182 CLR 104 Tsvangirai v The Special Broadcasting Service [2002] NSWSC 532 Waites v Macquarie Radio Network Ltd [2006] NSWSC 507 Westaway v Jones (Unreported, 20 August 1993, Levine J)

PARTIES: Australian Broadcasting Corporation Edward Obeid

COUNSEL: A: Mr T Blackburn SC / Ms E Raper R: Mr B McClintock SC / Mr M Richardson

SOLICITORS: A: S B Collins, ABC Legal Services R: Gilbert & Tobin, Sydney

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40858/05 DC 07273/02

HODGSON JA IPP JA TOBIAS JA

Monday 21 August 2006 AUSTRALIAN BROADCASTING CORPORATION v EDWARD OBEID Facts:

The respondent complained that he had been defamed by certain matter broadcast by the appellant during a morning radio newscast. The appellant sought to have some additional material that had been broadcast on the same radio station throughout the morning "struck in" to the respondent's statement of claim. The primary judge allowed the statement of claim to be amended in respect of only some of the additional material, excluding a series of further statements about the matter that were made later in the morning.

The jury held that the matter that was included in the statement of claim was defamatory. The appellant appeals against that finding on the basis that it was entitled to put the whole program before the jury and to have the jury's view on whether the additional material materially altered the complexion of the imputations the broadcast was alleged to have contained.

A plaintiff is obliged to plead all of the broadcast capable of materially altering or qualifying the complexion of the imputations pleaded, but is not obliged to plead extra matter if it is reasonably open to him or her to plead a stand alone segment of the program: [59].

The effect of the matter complained of must be taken from the whole of what has been published or broadcast: [64]. Sandilands v Channel 7 Pty Ltd [2005] NSWSC 1250 referred to.

In the case of a radio broadcast, the question is whether material included in a plaintiff's statement of claim is capable of constituting the whole of the context from which a body of ordinary reasonable listeners would be concerned to determine the meaning of what was broadcast: [69].

If that is the only view reasonably open, or if reasonable minds could differ as to whether it is so capable, then it is open to a plaintiff to plead the matter complained of as a single broadcast containing the whole of the context in which to determine whether the pleaded imputations were conveyed by that matter: [69]. Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 and The Age Corporation Ltd v Beran [2005] NSWCA 289 followed.

Given the transient nature of a radio broadcast, the existing authorities to not assist in defining the boundaries of the relevant publication: [64]. Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410, Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 distinguished.

The circumstances in this case are distinguishable from circumstances in which there are references clearly linking the separate matters sought to be struck in. There were none of the indications of unity between the segments to provide a sufficient connection and identification of one with the other: [59], [62]-[66]. Phelps v Nationwide News Pty Ltd [2001] NSWSC 130, Sandilands v Channel 7 Pty Ltd [2005] NSWSC 1250, Westaway v Jones (Unreported, 20 August 1993, Levine J), The Age Corporation Ltd v Beran [2005] NSWCA 289, Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 distinguished.

In this case, even though some listeners could reasonably have regarded both the matter complained of and the additional material as constituting the whole context or as one broadcast, the respondent was entitled to plead only the included matter. There could be nothing unfair in permitting the respondent to plead only the matter complained of, and it would be unfair to oblige him to plead the additional material: [70]-[71].

A plaintiff in defamation proceedings cannot be compelled to include additional material in the statement of claim unless it can and must reasonably be regarded as part of one publication that includes the material relied upon by the plaintiff: [2].

In the case of radio broadcasts, an ordinary reasonable listener may not hear the whole publication, but it is still appropriate to identify the publication of which the material relied upon by the plaintiff is part: [9].

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40858/05 DC 07273/02

HODGSON JA IPP JA TOBIAS JA

Monday 21 August 2006 AUSTRALIAN BROADCASTING CORPORATION v EDWARD OBEID Judgment 1 HODGSON JA: I agree with the orders proposed by Tobias JA and with his reasons. I would add a few comments of my own. 2 In my opinion, a plaintiff in defamation proceedings cannot be compelled to include additional material in the Statement of Claim unless (1) this additional material is part of what can reasonably be regarded as one publication that includes the material relied on by the plaintiff, and (2) the material relied on by the plaintiff must reasonably be regarded as part of a publication that includes the additional material. 3 In my opinion, the underlying reason for the first requirement is that defamation depends on how the ordinary reasonable reader/listener/viewer would understand the material relied on by the plaintiff; and while an ordinary reasonable reader/listener/viewer could be expected to take into account the context provided by the publication of which that material is part (and indeed, to suspend judgment if unable for any reason to take in that context), such a person could not be expected to look for material outside that publication in order to understand the material relied on. 4 The reason for the second requirement is that, where there can be reasonable differences of opinion about what constitutes the publication of which the material relied on is part, the plaintiff can choose (in a case where there are two possibilities) to rely on one or the other or both, at least unless the plaintiff's choice can be considered as unduly complicating the proceedings. If the plaintiff chooses to rely on one, and if the different context provided by the other is capable of affecting the meaning of the material relied on by the plaintiff, then damages may be recoverable only in relation to those ordinary reasonable readers/listeners/viewers who took that one (and not the other) to be the publication; while if the plaintiff chooses (and is permitted) to rely on both, then damages would certainly be recoverable in relation to both sets of ordinary reasonable readers/listeners/viewers. 5 In my opinion, those propositions are consistent with Gordon v. Amalgamated Television Services Pty. Limited [1980] 2 NSWLR 410, Burrows v. Knightley (1987) 10 NSWLR 651, Phelps v. Nationwide News Pty. Limited [2001] NSWSC 130, Beran v. John Fairfax Publications Pty. Limited [2004] NSWCA 107, and The Age v. Beran [2005] NSWCA 289. 6 In the case of radio broadcasts, an ordinary reasonable listener may not hear the whole publication, for example if listening to the radio while driving to work and arriving before the program finishes. However, it is still appropriate to identify what is the publication of which the material relied on by the plaintiff is part, because such an ordinary reasonable listener could be expected to realise that only part of the publication had been heard, and to suspend judgment to an extent that is reasonable having regard to the effect that the rest of the program could have on the meaning of the part that was heard. 7 In the present case, I do not think that even the first requirement was satisfied. Mr. Blackburn submitted that the ordinary reasonable listener would have realised it was an unfolding story; but in the absence of any indication between about 9am and about 9.30am of when, if at all, further developments could be expected, I do not think an ordinary reasonable listener would regard what was heard between those times as part of some larger whole, or would have seen any need to suspend judgment until some time in the indefinite future when there may or may not have been further developments. 8 But even if the first requirement had been satisfied, so that some ordinary reasonable listeners would have taken that view, it is in my opinion indisputable that some ordinary reasonable listeners would have taken the publication as complete by about 9.30am, so the second requirement was plainly not satisfied. 9 On the question of leave, although it might have been possible to argue that there was no "verdict" in this case, within s.102(a) or (c) of the Supreme Court Act, there is no doubt that a new trial is being sought, within s.102(b). We were not asked to reconsider the correctness of Bennette v. Cohen [2005] NSWCA 341, 64 NSWLR 81. In those circumstances, Gerlach v. Clifton Bricks Pty. Limited [2002] HCA 22, 209 CLR 478, establishes that, in the appeal as of right against the final judgment, interlocutory decisions material to that final judgment can also be challenged. 10 IPP JA: I agree with Tobias JA and the additional comments of Hodgson JA. 11 TOBIAS JA: The Australian Broadcasting Corporation (the appellant) operated a radio station broadcasting as 702 ABC in the Sydney metropolitan area and which was relayed throughout other parts of New South Wales. At the relevant time, it broadcast a radio program each weekday referred to as "702 Mornings" that was hosted by Ms Sally Loane (the program). The broadcast of the program commenced at 9.05am and finished at approximately 12 noon. 12 Mr Edward Obeid (the respondent) was an Australian Labour Party member of the New South Wales Legislative Council and at the relevant time was the Minister for Fisheries and Mineral Resources. 13 On Friday, 30 August 2002 commencing at 9.05am, the appellant broadcast the material of concern to the respondent, which is set out in Schedule "A" to this judgment (the matter complained of). On 16 September 2002 the respondent commenced defamation proceedings against the appellant in the District Court. 14 Prior to its amendment, the respondent's Statement of Claim omitted that part of the broadcast contained in lines 2-12 and 218-220 of Schedule "A" from the matter complained of. 15 On or about 22 October 2002 the appellant made an application to her Honour Judge J C Gibson of the District Court seeking to have the Statement of Claim attaching to the original matter complained of struck out on the basis of embarrassment (under Pt 9, r 7 of the District Court Rules) or, to use the jargon of practitioners in the Defamation List, to have certain material broadcast during the program on 30 August 2002 "struck in" to the original matter. That application was made on two grounds. First, it was submitted that the additional material was capable of materially altering or qualifying the complexion of the imputations pleaded. Second, it was argued that it was necessary to strike in that material to enable the appellant to establish the defences of statutory qualified privilege and/or common law qualified privilege (the political and government species). This, it was contended, involved a broad enquiry of the appellant's conduct, including the matters referred to in s22(2A) of the Defamation Act 1974, and those matters that were otherwise the subject of the decision of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 16 On 12 November 2002 her Honour "struck in" that part of the broadcast contained in lines 2-12 and 218-220 of Schedule "A". However, she declined to "strike in" the balance of the additional matters (the additional material) which the appellant sought to have included in the respondent's Statement of Claim (the strike in decision). 17 In par 4 of his Amended Statement of Claim (amended to include the "struck in" parts of the broadcast), the respondent alleged that the matter complained of in its natural and ordinary meaning conveyed the following imputations of and concerning the respondent, each of which was defamatory of him, namely, that

(a) the respondent corruptly (dishonestly) offered to assist in resolving problems with the Oasis Development if the Bulldogs Leagues Club made a $1 million payment to the Australian Labour Party (the ALP);

(b) the respondent attempted to obtain a bribe, that is a payment of $1 million for the ALP, in return for it facilitating the completion of the Oasis Development; and that

(c) the respondent lied when he denied that he had sought a bribe for the ALP in return for facilitating the completion of the Oasis Development. 18 A section 7A trial took place on 4 and 5 October 2005. On 5 October 2005 the jury determined that the matter complained of carried each of imputations (a), (b) and (c) and that each imputation was defamatory. 19 On 2 November 2005 the appellant filed an ordinary summons for leave to appeal in this Court claiming, apart from costs, the following orders:

(1) So far as is necessary, order extending time to file Summons for Leave to Appeal from the decision of Gibson DCJ on 12 November 2002 in which her Honour refused to order that certain material broadcast by the appellant (the additional material) be added to the matter complained of in the respondent's Statement of Claim.

(2) Order granting leave to appeal against the decision of Gibson DCJ.

(3) Order that the orders made on 12 November 2002 be set aside.

(4) Order in lieu thereof that the additional material be included in the matter complained of. 20 At the commencement of the hearing before this Court, a question arose as to whether the appellant in fact needed leave to appeal from the strike in decision or whether it had an appeal as of right. Although the appellant's summons for leave to appeal did not seek an order that the jury's verdict given on 5 October 2005 be set aside, such an order was sought in its draft notice of appeal. Senior counsel for the respondent ultimately conceded that, in effect, the appeal was against the verdict of the jury, which was based upon the matter complained of in circumstances where its verdict may have been affected if the additional material was to be "struck in" and thereby placed before the jury. In other words, the appellant was appealing against the jury's verdict upon the ground that the question of whether the matter complained of carried the implications that were pleaded was truncated by the refusal of the primary judge to "strike in" the additional material upon which the appellant relied. 21 In the foregoing circumstances it seemed to the Court (and, as I have noted, was also conceded by the respondent) that, in the light of the recent decision by this Court in Bennette v Cohen (2005) 64 NSWLR 81 at 87-88 [14]-[15], and its earlier decision in Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 at [34]-[42], the appellant had a right of appeal to this Court and that leave to appeal was unnecessary. The matter thereafter proceeded on that basis.

The additional material 22 Adopting (with some additions) the summary set out by the primary judge, the additional material that her Honour refused to "strike in" comprised the following:

(a) The 10am News in which it was reported that the respondent had said that the reports involving the allegations were defamatory and untrue and he had issued a statement describing them as unsubstantiated hearsay.

(b) News headlines at 10.30am in similar terms to the statement in the 10am News.

(c) A statement by Ms Loane at 10.59am that the respondent would be holding a media conference in half an hour's time at Parliament House to reiterate his denial of allegations raised " this morning in the media ".

(d) A further statement by Ms Loane at 11.05am that the respondent would be holding a media conference in about 25 minutes about allegations raised " this morning " by the Sydney Morning Herald " and also on my program a little bit earlier this morning " that in fact he had something to do with talks with Mr McIntyre who alleged that the respondent had said that if a million dollars was paid to the ALP then the Oasis Development would go through, an allegation which he, the respondent, had " strenuously denied ", and noting that the program would broadcast the news from the Respondent's media conference.

(e) A further statement by Ms Loane at 11.35am that the respondent was holding a press conference in which he was answering the allegations that had been raised in the media and which he had already strenuously denied; and that an extract from the media conference would be played.

(f) The introduction by Ms Loane at 11.50am of an extract from the respondent's media conference which was then broadcast. 23 I set out in Schedule "B" to this judgment the whole of the additional material summarised in paras (a) to (f) above.

The decision of the primary judge with respect to the additional material 24 Her Honour first determined that those parts of the additional material, being that contained in lines 2-12 and 218-220 of Schedule "A", should be included in the matter complained of on the basis that people listening to Ms Loane at 9.05am would be likely to still be listening for the news headlines at 9.30am. In this context her Honour observed that "This tends to confirm that while the continuous nature of radio means it is a kind of stream of consciousness, there are deliberate parameters inserted for listeners in the form of half-hourly and hourly news bulletins to which people listen before switching off." 25 The primary judge then considered that the temporal connection between the matter complained of and the additional material, particularly that referred to in pars (c) to (f), was "much more tenuous". She held that the segments of the broadcast from 10am onwards were both distinct in time and, with the exception of the 11.05am segment (being that referred to in par (d)), lacked any cross-referencing to the matter complained of. 26 Her Honour then considered the law relating to "strike in" applications in respect of which there does not appear to be any significant dispute between the parties. Drawing heavily on the statement of the relevant principles by Hunt J in Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 and Burrows v Knightley (1987) 10 NSWLR 651, I would summarise those principles as follows:

(a) Where the publication sued upon is in written form, a plaintiff is obliged to include within his or her pleading every passage which materially alters or qualifies the complexion of the imputation complained of: Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 at 477, 480; Gordon at 413 [6]. The justification for that rule lies in the principle that the effect of the matter complained of must be taken from the whole of what has been published: Gordon at 413 [6].

(b) In the case of oral defamation, that basic principle cannot, however, be applied without any qualification. In the case of radio and television publications, a plaintiff is entitled to submit to the jury that the reasonable listener or viewer, as the case may be, although deemed to have listened to or watched the whole of the broadcast, nevertheless may not have devoted the same degree of concentration to the broadcast as he or she would have to a written document: Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 (note) at 420 [12]; Gordon at 413 [7].

(c) Each case will depend upon its own circumstances, but it is easy to imagine a listener or viewer missing the significance of a qualification or contradiction at the beginning or (perhaps less likely) at the end of a segment. On the other hand, it is difficult to accept the existence of a reasonable listener or viewer who failed to comprehend a refutation in the sentence following that in which a charge was made or whose concentration selectively increased in relation to random passages between those which materially qualified the effect of those he or she comprehended.

(d) It is true that the that principle is not to be applied without qualification in the case of oral defamation. Nonetheless, the rule remains that the capacity of the matter complained of to convey particular defamatory imputations of and concerning the plaintiff must be judged by what the ordinary reasonable listener or viewer of average intelligence would have understood from the context constituted by the broadcast as a whole: Morosi at 419 [5]; Gordon at 413 [9].

(e) Accordingly, a defendant is entitled to require the plaintiff to plead the full context of what is broadcast if that context is capable of materially affecting the imputations complained of by the plaintiff.

(f) Thus, if there are passages not pleaded in an agreed context relating to the complaint by the plaintiff, and those passages materially alter or qualify the complexion of the imputations complained of, the plaintiff is obliged to plead those additional passages in oral as well as written defamation: Gordon at 414 [15].

(g) However, where in a case of oral defamation the context of the matter complained of is in dispute (as in the present case), the question arises as to whether in these circumstances the plaintiff is bound to plead any more than what he or she alleges is the whole context: Gordon at 414 [11]-[12].

(h) Relevant to the question of context is the principle that where the matter complained of is contained in a newspaper and refers to other material in the same newspaper, the plaintiff may be required to tender that other material in his or her case provided that such other material is capable of affecting the sense of the matter complained of. Where there are two separate publications by the defendant, the plaintiff is entitled (or may be obliged) to have them considered together in order to determine the sense in which either was understood, provided that they are sufficiently connected and identified with each other: Burrows at 655 F-G.

(i) However, another principle applies where the matter of which a plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent, on the face of the matter complained of itself, either an intention on the part of the defendant that it be read together or direct internal references are made from one to the other, so that the reader may reasonably be expected to read it together. In such cases it is acceptable practice to plead all of the material in the one paragraph of the statement of claim and to identify the imputations said to have been conveyed by the material as a whole: Burrows at 657E. 27 As her Honour pointed out, the matter complained of in Burrows was a novel that was intended to be serialised in instalments. The structure of the novel linked each of the serial extracts to the next. The structure of a radio program is different in that it is open-ended. The question of context is therefore paramount in a case such as the present. 28 The primary judge resolved the question of context by considering whether there was anything in the "composite" matter complained of evidencing an intention on the part of the appellant that the various segments of the broadcast comprising the additional material were to be "heard" together with matter complained of. 29 In determining this question her Honour referred to the following passage in the judgment in Westaway v Jones (Unreported, 20 August 1993) where Levine J referred to the statement of principle by Hunt J in Burrows and then continued in these terms: "In the instant case the Court is not concerned with a printed publication; it is concerned with radio broadcast separated by two hours, each of its very nature transient as compared to the more permanent form of the printed newspapers. There is nothing in either component of the 'composite' matter complained of evidencing an intention on the part of the defendants that it be 'read together', a fortiori, 'heard' together. Whilst there are direct references internally one to the other only in terms of subject matter it cannot be said that the direct references internally one to the other in the sense that I have described them are such that the listener may reasonably be expected to 'hear it' together. The undoubtedly correct statement of principle of David Hunt J in Burrows Case cannot be described as one of universal application to all of the various forms of publication available to the various forms of media as a general proposition, in particular, in my view, it has no application to the peculiar circumstances of the present case where the absence of the 'linking' factors of the two kinds referred to by David Hunt J is quite clear and the nature of the publication, namely transient radio broadcasts, is taken into account the more so in the context of broadcasts separated by two hours." 30 The primary judge considered that a similar approach was to be found in the judgment of Simpson J in Phelps v Nationwide News Pty Ltd [2001] NSWSC 130. The issue in that case concerned the proper identification or definition of "a publication", as distinct from separate publications. At [10], Simpson J observed that there was no rigid dividing line and no categorical test that could be applied to the determination of such boundaries. This was because the examples of publications that might be perceived either as a single entity or as multiple single entities were numerous. Her Honour continued in the following terms: "There will, no doubt, be many cases where reasonable minds might differ on the proper categorisation, and many where a reasonably minded person would recognise that either classification would be valid. In these cases, the plaintiff has the option to as to the manner of pleading." 31 Simpson J then referred to Burrows, together with other cases that, to her, illustrated the diversity of the circumstances which might give rise to considerations of whether separate but related publications should be regarded as one. She then said (at [22]) that "Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field." 32 I note here that the present case involved an unsuccessful "strike in" application rather than an unsuccessful "strike out" application, as was the case in Phelps. The principles with respect to the former were analysed by Levine J in Tsvangirai v The Special Broadcasting Service [2002] NSWSC 532, a case which involved a report presented on the defendant's Dateline program. The defendant sought an order that the plaintiff plead the entirety of the program rather than the two sentences from which the imputation alleged in that case was said to have arisen. 33 As in the present case, it was argued for the defendant that the effect of the matter complained of must be taken from the whole of what was broadcast by the defendant. It was also asserted that the defendant, in any event, was entitled to put the whole of the program before the jury and to have that tribunal's view on whether the additional matter pleaded by plaintiff in fact materially altered or qualified what was described as the "complexion" of the imputation. 34 After referring to the comments made by Asprey JA in Hodgson at 477A and by Hunt J in Gordon at 413C-F, 414B and 414G-415B, and noting that the notion of a "transient" publication had not entered the vocabulary of defamation law until Hunt CJ at CJ remarked upon it in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165G-166C, Levine J observed (at [12]) with respect to such a publication that: "[i]t is quite clear to me that the principle to which reference is made in Hodgson and Gordon applies to the "transient" publication on radio or television. The ordinary reasonable viewer is taken to have viewed the whole of the program with the variation in concentration to which his Honour refers in Marsden . The defendant is entitled to have pleaded by the plaintiff the proper context of the matter complained of as it may affect the complexion of any imputation pleaded. In a case involving a current affairs television program, in most cases one would anticipate that the whole of the relevant segment should thus be pleaded. If an issue arises as to whether the plaintiff has impermissibly omitted material from the publication (the whole of which the viewer is taken to have seen) the test to be applied is whether any of the omitted parts is reasonably capable of materially altering or qualifying the complexion of the plaintiff's imputation. It will be for the tribunal of fact - the jury - to determine whether any such material in fact has that effect." 35 In Tsvangirai the relevant program was approximately 50 minutes long. The matter complained of was extracted from words spoken by the presenter introducing a report by one of the program's journalists. It is to be noted that the whole of the program was devoted to one subject involving Zimbabwe, where the plaintiff led the opposition party in Parliament. The program contained information on a number of subjects involving the Zimbabwean government, its repression of opposition forces, the effect of its land seizure policies on a white family and denials by the plaintiff that he wanted to change the government by unconstitutional means. 36 Levine J dealt with the defendant's submissions in these terms (at [16]): "Applying the test of whether or not the balance (virtually the whole) of the program is reasonably capable of having the effect referred to, I have come to the conclusion, on this capacity point, that it is. I must say however that it was not without some sense of reservation that I did come to that conclusion. When one applies the principle relating to reasonable capacity to materially alter the complexion of the pleaded imputation and applies also the principle that a viewer is taken to view the whole program, it will be an exceptionally rare case where the plaintiff safely can avoid pleading the whole of the published program." 37 It is therefore apparent that in Tsvangirai the defendant's entitlement to have the plaintiff plead the whole of the program proceeded upon the basis that the whole program, given its subject matter and content, was one in respect of which the ordinary reasonable viewer would be taken to have viewed and formed the context in which the pleaded imputations were to be considered. The same cannot be said of the additional material in the present case. 38 Thus, after citing the passage from the judgment of Levine J in Westaway, which I have set out in [29] above, the primary judge concluded in these terms: "Whether or not there is evidence at the trial that certain listeners were tuned in all morning and heard the whole of the broadcast, as opposed to only the portion of the matter complained of which is clearly interlinked to the matter complained of as currently pleaded [being a reference to the lines 2-12 to and 218-220 of Schedule 'A' which were 'struck in'] is, as Simpson J stated in Reading [ v Australian Broadcasting Corporation [2002] NSWSC 1031 at [14]-[16]], an issue going to damages. Further, it is my view that the additional material does not, in its entirety affect the complexion of the imputations pleaded, let alone amount to sufficient antidote to outweigh the bane; essentially these additional publications are a restatement of the plaintiff's strenuous denial of the truth of the allegations against and of similar denials by Mr Carr, the Premier of New South Wales". 39 The appellant submitted that the last sentence of the above passage contained error in that the test was not whether the additional material affected the complexion of the imputations pleaded but whether it was capable of affecting that complexion. This submission is correct but does not assist the appellant unless the additional material can be said to have formed part of the whole broadcast in the sense that it formed the context within which the jury was to determine whether the matter complained of carried the imputations pleaded. It is apparent that the primary judge considered that there were no "linking" factors of the kind referred to by Levine J in Westaway that would require the various segments comprising the additional material to be taken into account as providing the context within which the matter complained of was to be considered.

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."

Accordingly, the defendant's application was refused.

The submissions on the appeal 55 The appellant submitted that it was not open to the primary judge to find that the additional material was not capable of affecting the complexion of the imputations pleaded. Those alleged imputations related to whether the respondent had corruptly and dishonestly made the offer, as set out at [17] above. The additional material concerned the respondent's responses to the allegations both generally and when he conducted a live press conference which occurred during the course of the program. That material, broadcast in the same program, was plainly capable of materially altering or qualifying the complexion of the imputations. Of course, the question of whether it had that effect was a matter to be determined by the jury, as the tribunal of fact. It was sufficient that the additional material was capable of materially altering or qualifying the complexion of the imputations or any of them. 56 It was thus submitted that the appellant was entitled to put the whole of the program before the jury and to have its view on whether the additional material materially altered or qualified the complexion of the imputations. Further, the failure to allow the additional material to be "struck in" had the ability to prejudice the appellant's qualified privilege defences to the claim in the substantive proceedings. It was by no means clear that the primary judge's suggestion that it would be open to the appellant to adduce additional evidence of the broadcast in support of those defences would be accepted as correct by the ultimate trial judge or by the respondent at trial. 57 In Gordon, Hunt J suggested (at 656C-D) that as an alternative to a "strike in" application a defendant could simply plead the additional material into its defence. However, this statement was made in the context of the old pleading system where the defence was filed prior to the determination of the issue by the tribunal of fact, and where the correctness or otherwise of the defendant's "strike in" in its defence could be contested on an interlocutory basis. 58 Accordingly, it was submitted that as the appellant in the substantive proceedings would assert that it had acted reasonably in the circumstances, the reasonableness of its conduct in broadcasting the matter complained of could not properly be assessed other than by a consideration of the whole of its conduct in the treatment of the particular political issue under consideration on the occasion in question. 59 The respondent replied to the appellant's submissions by referring to the authorities which I have canvassed above. It accepted the principle that a plaintiff was obliged to plead all of the broadcast capable of materially altering or qualifying the complexion of the imputations pleaded, but maintained that he was not obliged to plead extra matter no matter what its content if it was otherwise reasonably open to him or her to plead a stand alone segment of the total program. The present case was distinguishable from Phelps, Sandilands, Westaway, and the two Beran cases where there were references clearly linking the separate matters sought to be "struck in". No such links were present between the matter complained of and the additional material upon which the appellant relied in the present case. 60 In particular, only the last additional matter referred to in par (f) contained any reference to the lengthy interview with Mark Wells that comprised part of the matter complained of. But that occurred approximately two and one half hours later. Accordingly, it was submitted that the additional material from 10am onwards was remote and none of it was linked back to the matter complained of. Thus, it was argued that it was a matter of common sense that very few listeners would have heard the entirety of the program particularly where it relevantly comprised six short excerpts spread over two and a half hours with totally unrelated material between each. 61 The appellant submitted by way of rejoinder that decisions such as Phelps and The Age Corporation were irrelevant as they dealt with the issue as to whether a plaintiff should be compelled to treat two separately pleaded matters as one, whereas in the present case the issue was whether the respondent had completely pleaded a single publication. Furthermore, the appellant's proposed defence of qualified privilege was based upon the broadcast of the respondent's press conference, the timing of which was entirely determined by him. It was submitted that this should not be able to be outflanked by the simple expedient of the respondent artificially restricting his pleading so as to exclude the broadcast of that conference from the issue of reasonableness. That broadcast was relevant to the defence material, particularly given that its timing was a matter of the respondent's own choosing.

The appellant's submission should be rejected 62 In my opinion, the respondent's submissions should be accepted for the following reasons. First, the subject program was one which lasted from approximately 9am to 12pm. It no doubt dealt with many subjects of which the matter complained of by the respondent was only one. 63 Second, there were significant intervals after 9.30am between the broadcast of the matter complained of and the other excerpts or segments which the appellant seeks to "strike in" upon the basis that they were capable of materially altering or qualifying the complexion of one or more of the pleaded imputations. 64 Third, given the transient nature of a radio broadcast and accepting the principle that the effect of the matter complained of must be taken from the whole of what has been published or, in the present case, broadcast (as Nicholas J observed in Sandilands at [23]), Gordon, Hodgson and the other authorities do not assist in defining the boundaries of the relevant publication. 65 Fourth, in the present case, the primary judge confined those boundaries to that segment of the program which commenced at 9.05am and concluded with the news headlines at 9.30am. Each of the segments referred to in pars (a) to (f) of the additional material which the appellant seeks to "strike in" constituted independent publications or broadcasts separated from each other by extensive periods of time involving the broadcast of totally unrelated subject matters. There was nothing in the matter complained of which linked it to any of the later segments so as to satisfy the requirement that the segments were, to adopt the words of McColl JA in Beran, "sufficiently connected and identified with each other" so to constitute one broadcast. 66 To further explain my fourth point, although each of the segments related to the same subject matter, there were none of the "indications of unity" between the segments to provide a sufficient connection and identification of one with the other. Nor is it possible to detect either of the elements referred to by Hunt J in Burrows at 657D-F, to adopt and adapt the test referred to by his Honour. Is it not possible to discern either an intention on the part of the appellant that the later segments be heard together with the earlier segment comprising the matter complained of. Nor were there direct references in the segments internally one to the other so that the listener of the segment constituted by the matter complained of might reasonably be expected to continue to listen to the later segments whenever they might be broadcast. In this respect, it was not until 10.59am that Ms Loane (in par (c) of the additional material) foreshadowed that the respondent would be holding a media conference where he would reiterate his denial of the allegations in question. Had the respondent pleaded par (c) as part of the matter complained of, there may well have been a sufficient link to entitle the appellant to "strike in" the additional material contained in pars (d), (e) and (f). But he did not; nor was he obliged to. 67 The appellant accepted that there was nothing in the matter complained of which expressly suggested that "there would be more later". However, it did submit that that was implied as an ordinary reasonable listener would have understood that part of the broadcast contained in lines 2-48 of Schedule "A" to be an "unfolding story" in respect of which there would be "more to come". In my opinion this submission should be rejected. It suggested that there was a flavour to the matter complained of which would be understood by the ordinary reasonable listener to be an ongoing story which the appellant would not just drop but which it would follow up as the story broke further - if it did. 68 Further, having listened to the tape of the broadcast and having carefully read the transcript set out in Schedule "A", I cannot accept that the ordinary reasonable listener would understand that he or she should continue to listen to the program upon the basis that there was clearly more of the story to come. 69 As the authorities discussed above make clear, the question is whether the matter complained of was capable of constituting the whole of the context from which a body of ordinary reasonable listeners would be concerned to determine the meaning of what was broadcast. If that is the only view reasonably open or if reasonable minds could differ as to whether it was so capable then, as was observed by Simpson J in Phelps and by Hodgson JA in The Age Corporation, it was open to the plaintiff to plead the matter complained of as a single broadcast containing the whole of the context in which to determine whether the pleaded imputations were conveyed by that matter. 70 To put the converse proposition, in my opinion it cannot be the case that the only view reasonably open was that the matter complained of and the additional material constituted one broadcast containing the whole context in which the meaning or sense of the words used in the former were to be understood by a body of ordinary reasonable listeners. It plainly did not. This was due, firstly, to the intervals between the segments; secondly, to the unrelated subject matters between the segments; and, thirdly, the lack of any "indications of unity" constituted by indications in the matter complained of that it was only part of a breaking story and that there was more to come. As was the case in The Age Corporation, the present was, at the very least, a case where some reasonably minded listeners could regard the matter complained of as a separate, self-contained broadcast containing the whole context of what the respondent was complaining about. The result was that even though some listeners (who no doubt listened to the whole program) could reasonably have regarded both the matter complained of and the additional material as constituting the whole context or as one broadcast, the respondent was entitled to plead only the matter complained of as forming the one broadcast containing the whole context in which the jury, as the tribunal of fact, was to determine whether the pleaded imputations were conveyed. 71 As was suggested during argument, it may well be that only a small but substantial body of ordinary reasonable listeners would have heard the whole program up until the end of the additional material but that a large and numerous body of such listeners would have heard the matter complained of and no more. In these circumstances there could be nothing unfair in permitting the respondent to plead only the matter complained of; on the other hand it would be unfair to oblige him to plead the additional material. The same result would follow if the body of listeners of the matter complained of was significant but relatively small. It would be a matter for the respondent as to whether he sued only on the matter complained of or not. If he did, his damages might well be circumscribed as his reputation would only be damaged in the minds of a relative few rather than many. But that would be his choice. 72 In my opinion, therefore, the primary judge was correct when she refused to order that the respondent plead the additional material in his statement of claim. The boundaries of the playing field, to adopt the metaphor of Simpson J in Phelps, were properly marked out in the matter complained of as set out in Schedule "A" to the Amended Statement of Claim. 73 Finally, I would reject the appellant's submission that there might be some doubt as to whether it would be entitled in its defences of qualified privilege to successfully tender the additional material as relevant to the reasonableness of its conduct. The appellant submitted that it cannot be the law that the reasonableness of its conduct is entirely circumscribed by the respondent's choice of the material he wishes to plead especially when the later material, being the holding of his press conference, was at a time of his own choosing. However, it must also be appreciated that the broadcast by the appellant of the matter complained of was at a time of its choosing in circumstances where, if it had delayed for approximately two hours, it would have become aware that the respondent was proposing to hold a press conference. It would not be unreasonable to infer that the appellant broadcast the matter complained of at the time it did in order to achieve maximum effect given that the matter had been published in the Sydney Morning Herald that morning. But that was a matter of its own choosing - it can hardly be heard to complain of unfairness that it should not be prejudiced by the delay between its broadcast of the matter complained of and when it first became aware of the respondent's proposed press conference. 74 As her Honour observed, "the parameters of the matter complained of are relevant to the publications of imputations of and concerning the plaintiff; questions relevant to the defence (or for that matter, as to quantum) are not restricted to the content of the matter complained of. Just as the defamatory nature of an imputation is achieved by seeking the imputation in context …so the defence of qualified privilege ought, in my view, to consider the matter complained of in context. This is what the High Court meant when in holding, in Theophanaous v Herald & Weekly Times Ltd (1984) 182 CLR 104 that an in important question was whether the publication occurred 'in the course of' debate about political or government matters. Similarly, a defensive comment is not necessarily restricted to the statements of fact in the matter complained of, and a defence of justification may be entirely based on matters not referred to at all in the publication." 75 As to the matter of timing, her Honour accepted that the appellant had no control over the timing of the respondent's press conference but observed that the Lange defence would not fail in circumstances where the appellant indicated (as occurred in the present case) that the respondent had released a statement denying the allegations, where he had been asked to come on air but had refused and where the fact that he denied the allegation was repeated several times. She further held that the appellant was entitled to rely upon these matters in relation to the issue of reasonableness, whether the additional matters appeared in the matter complained of or not. 76 The respondent did not challenge the correctness of these observations of the primary judge and, in particular, the passage from her judgment recorded in [74] above. They are consistent with the appellant's submission that its conduct cannot properly be assessed other than by consideration of the whole of its conduct in the treatment of the particular political issue under consideration on the occasion in question. It follows that it will be open to the appellant to tender the additional material in support of its qualified privilege defences.

Conclusion 77 In my opinion, the appellant's challenge to her Honour's decision not to "strike in" the additional material should be rejected. Accordingly, I would propose the following orders:

(c) The appellant to pay the respondent's costs of the appeal and the summons for leave to appeal. *********

23/04/2007 - Schedules "A" and "B" added to the judgment. - Paragraph(s) After paragraph 77

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