Age Company Ltd v Elliott [2006] VSCA 168

Court of Appeal (Vic)|2006-08-24|Before: BUCHANAN, CHERNOV and ASHLEY, JJ.A.

Defamation - Discovery - Facts not put in issue by plea that the words were published without making enquiry of the plaintiff to ascertain the facts - Facts not in issue without a pleading raising falsity - Presumption of falsity.

1 An article published by the appellant, whom I will call "the defendant", in The Age newspaper concerned with insider trading in company shares contained a graph showing the proximity between substantial share price movements in a mining company and the sale of shares by the respondent, whom I will refer to as "the plaintiff", and another, who were directors of the company.

"The truth or falsity of the words is irrelevant to the question whether they are actionable but not, I think, to the amount of damages if they be defamatory. A jury is always likely to think that heavier damages should be given to the gratuitous publication of statements that are false than would be appropriate if the same statements were true. A plaintiff is always permitted to go into the witness box to say that what was said of him was a lie. If he does so, surely the defendant should be permitted to call evidence to answer him? If he does not, must the defendant remain silent on the matter unless he has pleaded truth and public benefit? An answer to this question was long ago given in New South Wales. It was held that a defendant could call evidence of the truth of his statements with a view to mitigating damages although he had not pleaded justification."

"Whatever the position at common law, there is not in New South Wales (or elsewhere in Australia where the law is the same) any reason for saying that in the absence of a plea of truth and public benefit a libel is presumed to be untrue."

His Honour was concerned with an action brought in New South Wales at a time when the law of defamation was codified by the Defamation Act 1958.[4]

14 It is well established at common law that a plaintiff in a defamation suit is not required to plead or prove that the imputations of which he complains are false.[5] The other side of the coin is that, without a plea of justification, the defendant cannot lead evidence of the truth of the publication in mitigation of damages.[6]

15 The trial judge relied upon the presumption that the words sued upon were false. Counsel for the appellant submitted that was an error. The presumption is derived from a decision of Lord Ellenborough, C.J. in Roberts v. Camden[7]. His Lordship extended the principle that falsity of the words sued upon in a defamation action is not an element of the cause of action. His Lordship said that: " ... the words, not having been so justified [by special pleading] must be assumed to be false." As falsity is not an element of the cause of action, no presumption of falsity can arise from the failure of the defendant to plead truth.[8] The existence of the presumption has been accepted in common law jurisdictions for so long that it may now be too late to correct the error from which it arose.

16 In any event, in the present case, with or without the presumption, the truth or falsity of the words sued upon was not in issue. Truth or falsity of the words only becomes relevant if a party puts it in issue. A plaintiff might claim aggravated or exemplary damages in a manner which raises falsity.[9] A defendant can raise truth by pleading justification. In this case neither party put truth or falsity in issue.

17 For the foregoing reasons I am of the opinion that the trial judge's decision was clearly correct. I would refuse leave to appeal from the decision.

18 I would also refuse leave to appeal from the impugned decision for the reasons given by Buchanan, J.A.

19 I agree with Buchanan, J.A., for the reasons which his Honour gives, that the application for leave to appeal should be refused. But I wish to add a little to what his Honour has said.

20 First, if the presumption of falsity of defamatory imputations is an error springing from the corruption of the principle, dating from the seventeenth century, that a plaintiff is neither required to aver nor prove that defamatory matter was published "falsely and maliciously," it is an error which occurred nearly 200 years ago[10], and an error which has become entrenched in the common law of defamation. Thus, for example, the presumption has been applied in this State[11], and has been said to be the law in the United Kingdom in very recent times.[12]

21 Further, the presumption has attracted certain consequences. In jurisdictions

unaffected by statute, it has operated, in effect, to deny a defendant the right to allege truth in mitigation of damages except if a plea of justification had been raised. The explanation why this should be so was described by Walsh J in Rigby v. Associated Newspapers Ltd[13] as follows:

"In England the primary reason for refusing to allow the defendant to use such evidence to mitigate damages was that, if proved, truth would be a complete defence, and that a defendant who does not plead what would be a defence should not be permitted to elicit the same facts to reduce damages."

Again, there is a body of authority which says that, even where a defendant pleads justification of defamatory imputations, discovery by the plaintiff should ordinarily be limited to matters particularised by the defendant in respect of that defence.[14] A defendant should not have discovery from the plaintiff in advance of particularization.[15]

22 In the event, I think that it is too late to correct the supposed error. In that connection, it may also be observed that the intent of the model legislation reflected by the Defamation Act 2005 [16] is to enshrine the common law concept of justification[17] throughout Australia.[18] It should be inferred that the choice was made cognisant of the existence of the presumption, and of the law as it had differently developed in non-common law jurisdictions - both with respect to the existence or otherwise of the presumption, and to the significance of that matter upon the question of damages.

23 Second, the application below was initiated by a Summons, filed on behalf of the defendant, which for more than one reason was arguably defective. By paragraph 3 of the Summons, which is presently relevant, orders were sought "pursuant to Rule 29.11 or otherwise." I doubt that Rule 29.11 was in point; whilst, so far as the words "or otherwise" might call Rule 29.08 into play, the Summons was not drafted in a manner appropriate to that sub-rule. None of this was the subject of debate, at first instance or in this Court. It was sensible to deal with the substance of the matter. Nonetheless, it should not be supposed, because the matter was dealt with in such a way, that either the learned judge below or this Court accepted that the Summons was good in form.

[1] Cf. Aldridge v. John Fairfax & Sons Ltd. [1984] 2 N.S.W.L.R. 544 at 549 - 50 per Hunt, J.

[2] In that event, pleas by defendants that the words sued upon are true would be redundant.

[3] [1966] HCA 37; (1966) 117 C.L.R. 185 at 205.

[4] See Singleton v. Ffrench (1986) 5 N.S.W.L.R. 425 at 441 - 4 per McHugh, J.A.

[5] Rowe v. Roach (1813) 1 N&S 304; Motel Holdings Ltd. v. Bulletin Newspaper Co. Pty. Ltd. [1963] S.R. (NSW) 208 at 212 per Sugerman, J.

[6] Underwood v. Parks (1743) 2 Stra 1200; Watt v. Watt [1905] A.C. 115 at 118 per Earl of Halsbury, L.C.; Hobbs v. Tinling [1929] 2 K.B. 1 at 17 - 18 per Scrutton, L.J., at 38 per Greer, L.J. and at 48, 50 per Sankey, L.J.; Plato Films Ltd. v. Speidel [1961] A.C. 1090 at 1133 - 4 per Lord Denning; Singleton v. Ffrench, above, at 442 per McHugh, J.A.

[7] [1807] EngR 404; (1807) 9 East 93.

[8] See Spencer Bower, Actionable Defamation, 2nd ed., p 236.

[9] See, for example, Glare v. John Fairfax Publications Pty. Ltd. [1999] VSC 390.

[10] Roberts v. Camden [1807] EngR 404; (1807) 9 East 93 at 95.

[11] A v Ipec Australia Ltd v. Crew [1973] VicRp 4; [1973] VR 39 at 47-48.

[12] Jameel and anor v. Wall Street Journal Europe Sprl [2005] 2 W.L.R. 1577, particularly at [4],[35] and [55]-[57] per Lord Phillips M.R. for the Court.

[13] [1969] 1 N.S.W.R. 729 at 738.

[14] See Gatley on Libel and Slander, 10th Ed (2004) para 31.8 and the cases there cited.

[15] Although a plaintiff's discovery in respect of matters particularized may lead on to additional particularization.

[16] No 75/2005, see s.25.

[17] Though subject to a somewhat different notion of contextual truth.

[18] Other states, including N.S.W., passed mirror legislation during 2005. The N.S.W. Act, No. 77 of 2005, commenced on 1 January 2006. It repealed the Defamation Act 1974 (N.S.W.).

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Judgment (11 paragraphs)

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