The plaintiff then particularises seven publications by the defendant dating from 16 July 1999 to 18 July 1999 variously in the Australian Financial Review , The Sydney Morning Herald and The Sun Herald . The plaintiff then, in the Amended Statement of Claim, particularises (paragraph (c)) 20 publications, from 2 July 1999 to 10 December 1999 in the same newspapers, plus The Age.
3 A Notice pursuant to SCR Pt 67 r 12A was filed by the defendants on 14 February 2002 which, in general terms, objects to the substance of the claim for aggravated damages and its particularisation. Further material was before the Court by means of the affidavit sworn by Christopher John Tappere on 15 November 2002, to which is exhibited "CT1", a bundle of correspondence passing between the solicitors for the defendants and the solicitors for the plaintiff from 13 March 2000 to 30 October 2001.
4 It is necessary to extract portions of this correspondence to provide an outline of the defendants' application, which, in the end, is to be understood as one to strike out from the Amended Statement of Claim the pleaded claim for aggravated damages and the appended and amplified particulars.
5 By letter dated 13 March 2000 the defendants' solicitors (Freehills) requested particulars of the matters appended under SCR Pt 16 r 5 B in the following terms:
"5 In relation to paragraph (a) of the particulars, please
(a) provide particulars of the facts, matters and circumstances relied upon in support of the assertion that the defendants knew that the plaintiff claimed that the matter complained of was false; and
(b) state whether the plaintiff asserts that anything in the matter complained of was in fact false (identifying any such thing) and, if so, provide particulars of the facts, matters and circumstances relied upon in support of that assertion.
6 In relation to paragraph (b) of the particulars, please:
(a) specify the "defamatory matter" referred to;
(b) provide particulars of the facts, matters and circumstances relied upon in support of the assertion that the defendants failed to apologise for the publication of the "defamatory matter"; and
(c) please state whether it is the plaintiff's case that the alleged failure to apologise was lacking in bona fides, improper or unjustifiable and, if so, please state which and provide particulars of the facts, matters and circumstances relied upon in support of that assertion.
7 In relation to the first paragraph (c) of the particulars:
(a) please state what is meant by "compounded the impression conveyed by the matter complained of" stating, with precision, what that "impression " is said to be and whether it is alleged that, by reason of the alleged prior publications, the matter complained of conveyed any meaning about the plaintiff other then that in the imputation pleaded in paragraph 5(a);
(b) please state, in respect of each of the alleged publications referred to, what meaning or meanings the plaintiff relies on as arising from the publication and state whether the plaintiff asserts that any, and if so which, of those meanings is false;
(c) please state, in respect to each of the alleged publications referred to, whether it is the plaintiff's case that its publication was lacking in bona fides, or was improper or unjustifiable and, if so, the acts facts, matters and circumstances (with dates) that will be relied on in support of that allegation; and
(d) without limitation to the foregoing requests, please provide full particulars of how it is said the publication of any matter published prior to the matter complained of, on or which your client seeks to rely in this regard, aggravated his damage.
The above requests are made without prejudice to our client's right to assert that the particulars in this paragraph are not proper particulars of aggravated damage and should be struck out.
8 In relation to the second paragraph (c) of the particulars, please state, in respect of each of the alleged publications referred to:
(a) what meaning or meanings the plaintiff relies on as arising from the publication and whether the plaintiff asserts that any, and if so which, of the meanings are false; and
(b) whether it is the plaintiff's case that its publication was lacking in bona fides, or was improper or unjustifiable, and, if so, the acts, facts, matters and circumstances (with dates) that will be relied on in support of that allegation."
6 By letter dated 11 September 2000 the plaintiff's solicitors (Blake Dawson Waldron - BDW) responded as follows:
"5(a) Letter from The plaintiff's solicitors to Australian Financial Review, 19 July 1999; telephone conversation between Robert Todd, partner of the plaintiff's solicitors and Richard Coleman of The Sydney Morning Herald, 19 July 1999;
(b) The plaintiff did not enter a secret agreement with the AMP Society whereby the plaintiff would cease to criticise the AMP Society if it invested in the South Sydney Rugby Leagues club; the plaintiff did not cease criticising the AMP Society because the AMP Society provided support for a cause in which he had a personal interest.
6(a) The matter complained of in paragraph (4) of the Statement of Claim, and the particulars of aggravated damages referred to in paragraphs (c) and (d) of the Amended Statement of Claim;
(b) The plaintiff requested an apology in the letter from the plaintiff's solicitors to Richard Coleman of 19 July 1999, and the facsimile sent on his behalf by the plaintiff's solicitors, on 20 July 1999, and the defendant refused to apologise in a letter sent by Richard Coleman of The Sydney Morning Herald on 20 July 1999, and no apology was published;
(c) the failure to apologise was improper and unjustifiable in the circumstances, given that the defendant must have known that the matter was false, considering:
(i) the publication of the facts set out in the articles "South Sydney denies Jones' involvement in AMP deal", Sydney Morning Herald, 20 July 1999, and, "AMP, Westpac and the Packer Fear Factor", Australian Financial Review, 22 July 1999, and
(ii) that the defendant knew that the plaintiff claimed the matter was false, in the light of:
(A) the broadcast by the plaintiff of an explanation of the circumstances surrounding his relationship with AMP on 20 July 1999, and
(B) the facsimile from the plaintiff's solicitors to Richard Coleman of The Sydney Morning Herald , 20 July 1999.
7(a) the effect of the publication of the article in question on the plaintiff was substantially aggravated by the plaintiff's knowledge that the defendant published such articles without regard to the truth or falsity of the facts alleged therein, and as a part of a relentless campaign to denigrate the plaintiff . Each of the articles referred to in the first paragraph (c) of the Amended Statement of Claim (with the exception of the article referred to in paragraph (c)(vii) of the particulars in the Amended Statement of Claim) was published without regard to the truth or falsity of the facts alleged therein, and as part of a relentless campaign to denigrate the plaintiff. The publication of the prior articles compounded the impression conveyed to the plaintiff that the article was published without regard to truth or falsity of the facts alleged therein, and as part of a relentless campaign to denigrate the plaintiff. The publication of the prior articles also compounded the impression conveyed to those to whom the article was published since both the prior articles and the matter in question were published as part of a relentless campaign to denigrate the plaintiff.
(b) This is not a proper request for particulars.
(c) Each of the articles referred to in the first paragraph (c) of the Amended Statement of Claim, was published by the Defendant as part of a course of conduct of the Defendant which was lacking in bona fides, improper and unjustifiable, since each article was written as part of the campaign to denigrate the plaintiff.
(d) The effect of the publication of the article in question on the plaintiff was substantially aggravated by the plaintiff's knowledge that the defendant published such articles without regard for the truth or falsity of the facts alleged therein, and as part of a relentless campaign to denigrate the plaintiff . Each of the articles referred to in the first paragraph (c) of the Amended Statement of Claim (with the exception of the article referred to in paragraph (c)(vii) of the particulars in the Amended Statement of Claim) was published without regard for the truth or falsity of the facts alleged therein, and as part of a relentless campaign to denigrate the plaintiff.
8(a) This is not a proper request for particulars.
(b) Each of the articles referred to in the second paragraph (c) of the Amended Statement of Claim was published by the defendant as part of a course of conduct of the defendant which was lacking in bona fides, improper and unjustifiable, since each article was written as part of a campaign to denigrate the plaintiff. The plaintiff reserves the right to rely on further articles published by the defendant in his claim for aggravated damages, and will notify the defendants of these articles prior to the hearing."
(emphasis added)
7 It is to be noted that in the last extracted letter reference is made by the plaintiff to the "relentless campaign to denigrate" him.
8 By letter dated 13 October 2000 Freehills sought the following additional particulars:
"(a) In respect each article, please state the acts, facts, matters and circumstances (with dates) by which it will be said that it was written as part of a relentless campaign to denigrate the plaintiff.
(b) In relation to each article in respect of which it is alleged without regard to the truth or falsity of the facts alleged therein, please state:
(1) the acts, facts, matters and circumstances (with dates) which will be relied upon to support that allegation.
(2) whether it is alleged (as it appears to be in your letter of 16 August 1999 in respect of at least some of the articles) that the article stated or imputed any matter that was false or misleading; and
(3) in respect of each article in respect of which an allegation of the type referred to in paragraph (b)(2) above is made, please state:
(A) what matter is alleged to be false and, in respect of that matter, the acts facts, matters and circumstances (with dates) by which it will be so alleged; and
(B) what matter is alleged to be misleading and, in respect of that matter, the acts facts, matters and circumstances (with dates) by which it will be so alleged.
(c) In respect of each article, please state what meaning or meanings the plaintiff relies on as arising from the publication.
In respect of the request in paragraph (a) above, we note the following. The fact (if it were a fact and this is not admitted) that a number of articles were published over a particular period and that they contained material which reflected adversely on the plaintiff, could not, without more, constitute a "campaign" or mean that their publication, or the publication of anyone of them, was lacking in bona fides, or was improper or unjustifiable.
In respect of paragraph (c) above, we note (without limitation) that the particulars are required by what is particularised in paragraph (b) in the Amended Statement of Claim (in particular, the reference therein to "defamatory matter") as further particularised in paragraph 6(a) of your letter of 11 September 2000".
9 BDW's 19 page response dated 13 June 2002 contained the following:
"2 Articles referred to in the first paragraph (c).
These articles, when taken together, constitute a campaign undertaken by the First Defendant to denigrate the plaintiff, through:
· The repeated association of the Plaintiff with allegations levelled at John Laws, at a time when Mr Laws was subject to intense public condemnation, with almost no effort made to distinguish between the two broadcasters.
· Repeated efforts to insult or hurt the Plaintiff on a personal level including references to him as the "Parrot", claims that he is arrogant, that he is "not respected", or that he is simply "not liked".
· Vicious mockery or taints directed at the Plaintiff.
· Repeated failures to provide an objective or complete account of issues pertaining to the Plaintiff.
· Repeated portrayals of the Plaintiff in a negative or ridiculous light, particularly through the use of headlines, cartoons, pictures and lay-out".
10 The plaintiff provided particulars in relation to articles specified as having been published before the matter complained of. The following is a sample of the particulars provided in relation to such an article:
"2.1 "Bankers pull plug on Laws as radio net widens", 16 July 1999, Australian Financial Review.
(a) the whole of the article is derogatory of the Plaintiff and especially the following:
(i) The association of the Plaintiff with John Laws at a time when John Laws was being held up to ridicule and censure in the media;
(ii) References to the "cosy relationship between business and radio's opinion makers" and to a controversy "engulfing the radio industry" which, in combination, have the effect of implicating the Plaintiff in allegations which were primarily directed at Mr Laws;
(iii) False and misleading references to the agreement between the Plaintiff and Optus (The "Optus Agreement"), despite the fact that the First Defendant clearly had available to it information from a Mr Wilks of Optus;
(iv) A reference to the Australian Broadcasting Authority Inquiry ("ABA Inquiry") as being "expected to lift the lid on the relationship between influential talkback hosts such as Laws and Jones and corporations, which have for years paid millions of dollars for favourable on-air coverage and promotions", without providing any basis for that prediction, and at a time when the allegations were primarily directed at Mr Laws.
(b) (i) The Plaintiff was not given the opportunity to respond to the contents of the article prior to publication.
(ii) Yes, the article is false and/or misleading.
(iii) The article refers to a deal between Cable and Wireless Optus and the Plaintiff "for on-air advertorial support estimated to be worth about $500,000 annually", which reference is false and/or misleading for the following reasons:
· It gives the impression that the Plaintiff was paid $500,000 to provide "on-air advertorial support" to Optus, when in fact, the Plaintiff was paid to perform several different services, including recording radio and television commercials, the provision of marketing skills and creative ideas in developing advertisements, and, if required by Optus, taking a starring role in an Optus television program;
· It fails to disclose that the Optus agreement provided that nothing in the agreement was to require the Plaintiff to provide services which would detract from his standing and integrity as a professional broadcaster and media personality or require him to limit or breach his obligations to 2UE;
· It fails to disclose that the Optus agreement provided that the Plaintiff was not required to conduct himself in any way which might "prejudice his integrate as an experienced and respected radio commentator";
(c) This is not a proper request for particulars, and cannot be made so by reference to paragraph (b) in the Amended Statement of Claim, which paragraph refers to the failure of the Defendant to publish an apology".
11 The following is provided as a sample of the particulars provided by the plaintiff in respect of an article published after the matter complained of:
"3.1 AMP, Westpac and the Packer fear factor", 22 July 1999, Australian Financial Review.
We refer to our letter to Richard Coleman, John Fairfax Publications Pty Limited, dated 26 July 1999, and to the contents of that letter. We also respond as follows:
(a) Despite the clear availability of plausible and accurate explanations for the circumstances which gave rise to the allegations against the Plaintiff in the matter complained of, this article persists in those allegations. We refer, in particular to the words:
"Packer's attack on Westpac, coupled with Jones's attack on the AMP Society, had given rise to a simple but juicy theory in the corridors of the AMP. The theory was that Jones, a great friend of Packer, was gunning for the same targets."
The plaintiff has no alternative but to conclude that the First Defendant deliberately published without any regard for the truth or falsity of the conclusions it reached or the impression it conveyed.
Although the article sets out more plausible explanations for the allegations against the plaintiff, the article repeats the allegations made in the matter complained of, providing these as a "third explanation". Instead of admitting that the matter complained of was mistaken, the article concludes by suggesting that the issue remains unsolved, given the alternative explanations.
(b) (i) The Plaintiff was not given an opportunity to
respond to the contents of the article. More significantly, the refusal of the First Defendant to publish an apology for the matter complained of, despite having access to the information set out in this article, and despite our letter to Richard Coleman, John Fairfax Publications Pty Limited, dated 26 July 1999, was without justification. The Plaintiff has no alternative but to conclude that the persistent refusal was improper, malicious and lacking in bona fides.
(ii) Yes.
(iii) The following allegations, made by the article either explicitly or by clear implication, are false;
· That the Plaintiff was involved in a conspiracy with Kerry Packer in relation to Westpac and AMP;
· That the Plaintiff ever discussed the issue of Westpac and the AMP with Kerry Packer;
· That, to the Plaintiff's knowledge, AMP Society invested in South Sydney in order to build good relations with the Plaintiff.
(c) This is not a proper request for particulars, and cannot be made so by reference to paragraph (b) in the Amended Statement of Claim, which paragraph refers to the failure of the Defendant to publish an apology".
12 To this point it can be seen that two contentious matters are the adequacy of the particulars relating to the "campaign" and the refusal by the plaintiff to specify a meaning, or meanings, arising from a given article as requested by the defendants.
13 The objections and counter objections become more refined in subsequent correspondence, particular attention being given to two decisions of Hunt J: Gruzman v John Fairfax and Sons Ltd, unreported, 28 September 1981 and Grubic v Mirror Newspapers Ltd, unreported, 7 December 1984. These judgments will be dealt with below.
14 By 7 November 2001 an impasse had been reached: see exhibit CT3 to Mr Tappere's affidavit.
15 Exhibit CT2 to the affidavit is comprised of communications from the plaintiff's solicitors for the period 19 July 1999 to 27 July 1999 to editors and other representatives of the defendant publishing company, making complaint about various of the articles.
16 The additional articles, approximately 31 in number, excluding one only identified as 4 September 1999, "The unkindest cut", have been provided in a folder.
17 As the defendants see it, the claim for aggravated damages in respect of the additional articles has given rise to three areas of dispute: first, whether the plaintiff was given adequate particulars of an alleged "campaign of denigration"; secondly, whether the plaintiff is obliged to identify the meanings which he asserts are carried by the additional articles; and thirdly, whether various particulars provided by the plaintiff are objectionable.
18 It can be seen from the essence of the exchanged correspondence that the defendants have sought particulars of the respects in which the publication of the prior and subsequent additional articles meet the standard required by what is said to be the rule in Triggell v Pheeney and of the facts, matters and circumstances relied upon in support of such contentions.
19 The rule in Triggell v Pheeney [1951] 82 CLR 497 at 514.5, relates to conduct amenable to an award of aggravated damages if that conduct on the part of the defendant is lacking in good faith or is improper or unjustifiable. The defendants complain that whatever else the material constituted by the presently supplied particulars may represent, it does not amount to proper particulars of aggravation based upon an assertion of a "campaign of denigration" against the plaintiff. The substance of the questions which need to be answered, according to the defendants, is whether the plaintiff asserts that such a "campaign" was deliberate; who it is that the plaintiff alleges carried out such a "campaign" on the behalf of the first defendant and what conduct amounted to the "carrying out" or participation in such a campaign (a new element); what facts, matters and circumstances relied upon by the plaintiff to establish that each article constituted part of such a campaign?
20 The inadequacy of the plaintiff's response to these issues is submitted to be as follows: while the plaintiff apparently indicated that a deliberate "campaign" was alleged, this is only to the extent to which the reference to "an arrangement or understanding between members of the editorial staff of the first defendant" allows such a conclusion to be drawn. It is submitted for the defendants that the question posed was, and remains, susceptible of a clear and short answer: either a deliberate "campaign" is alleged or it is not.
21 The identity of the parties to the "campaign" (or "arrangement" or "understanding") has not been provided except to the extent that it is apparently alleged that each and every author of the additional articles was part of the "campaign" and by reference to "members of the editorial staff". No particulars of participation by such authors have been provided: for example, no particulars of meetings of the parties to the "campaign" or "arrangement" or "understanding" nor any relevant communications identified.
22 The defendants point to what it perceives to be a negative: namely, that the plaintiff does not choose to assert that the additional articles are defamatory, nor that the matter complained of is to be read against the background of the earlier additional articles (compare Burrows v Knightley & Anor (1987) 10 NSWLR 651), nor that the defendants have committed the tort of conspiracy or some other tort by the publication of the additional articles, it being suggested that any such allegation would, without question, compel a need for the fullest of particulars.
23 Rather, the defendants see the plaintiff bringing the additional articles, covering a range of dates, in issue as part of an aggravated damages claim, and that to bring a case of such scale against the defendants obliges the plaintiff precisely to make clear what case it brings, lest the defendants effectively be ambushed at the hearing. Reliance is placed on recently stated principles as to disclosure: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346, 28 September 2001 ((2001) 53 NSWLR 116); White v Overland [2001] FCA 1333.
24 The defendants then elevate the particulars hitherto provided of a "campaign" or "arrangement" or "understanding" to an assertion that there has been asserted a conspiracy between members of the first defendant's staff to harm the plaintiff. If that construction of the case presently particularised is reasonably available, it is a serious matter for the plaintiff to assert, and, the defendants suggest, could have been the subject of a separate cause of action pleaded. The defendants submit that it would not be expected to be made lightly or without a proper foundation, that is, what the defendants are imputing to the plaintiff's case by way of particulars, namely, a charge of conspiracy. Thus, it is contended, that the plaintiff, having made such a serious assertion in relation to such a large volume of material, is not entitled to escape the ordinary obligations of providing necessary particulars, simply by couching his case as one of aggravation of damages rather than as separately pleaded causes of action.
25 The defendants see the plaintiff's case on aggravation of damages in the absence of further particularisation, as one of great generality. They complain that unless the plaintiff's case is further and properly particularised, the first defendant will be unable to know what evidence it should obtain prior to hearing and to present at the hearing. Rhetorically, it is asked whether the first defendant is now required to interview each person listed as an author of one of the additional articles to ascertain whether at any specified time, that author has met with or discussed the plaintiff with any other of the authors in question or had such a discussion with any member of the first defendant's editorial staff. Is the first defendant required to interview each member of its editorial staff (including past employees) to ascertain whether any such person communicated with any other such persons or with any of the various authors of the editorial staff?
26 In cases involving "agreements", "arrangements", "understandings" or "conspiracies" it has long been the law that such a allegation must be properly particularised: see, for example, Turquand v Fearon (1879) 48 LJQB 703. Further, an assertion of bad faith must properly be particularised because it essentially means dishonesty and always involves a degree of gravity in the charge that it makes: see Cannock Chase District Council v Kelly [1978] 1 All ER 152 at 156e per Megaw LJ. Further, of course, the rules of this court provide (SCR Pt 16 r 3) that particulars of allegations based upon states of mind must be provided.
27 The plaintiff, whilst noting that the question as to the conduct said to amount to participation in the "campaign" raised by the defendants have hitherto not been raised in correspondence, takes the position that he has complied with the obligation upon him, to give particulars that are reasonably required, and the best particulars that he is able to give: Rosenstraus v Muscat [1965] NSWR 302; Doherty v Nationwide News Pty Ltd (1967) 86 WN (Part 1) NSW 181. Further, under SCR Pt 16 r 7(3) no order should be made unless the order for further and better particulars is "necessary or desirable" to enable the defendants to plead, or for some other special reason. In this context in particular the plaintiff draws attention to the defendants' complaint, referred to above, that no particulars of meetings of the parties to the "campaign" (or "arrangement" or "understanding") were alleged, nor other relevant communications identified.
28 As a starting point it is contended by the plaintiff that the reliance upon the additional publications is neither impermissible nor unremarkable. As to the former, this is apparently acceded to by the defendants. In Gruzman and Grubic Hunt J relied upon statements in the second edition of Spencer Bower, The Law of Actionable Defamation, pp138-9; (see also Odgers on Libel and Slander (6th ed) at 320).
29 An important point for the plaintiff is the nature of the material relied upon in support of the claim for aggravated damages needs to be borne in mind. It is submitted that it is one thing for a newspaper to publish articles containing criticism of a well-known broadcaster such as the plaintiff. What is here contended, however, is that the tenor of the articles complained of go well beyond mere criticism or comment. They contain epithets used to describe the plaintiff as "the parrot", what is said to be gratuitously insulting material, snide comments and plain "gossip". All of the articles were published in a stream before and after the publication sued upon and show plainly, in the plaintiff's submission, an "animus" towards him. From this course of conduct, the plaintiff is entitled to invite the court, it is submitted, to draw an inference that the first defendant pursued a deliberate campaign of denigration. It is in the nature of such a campaign that the plaintiff must be largely unaware of the "operation" of it with any degree of precision. That, however, does not prevent him from inviting the court to draw inferences from the evidence available (not least of which, I would understand, to be the fact of publication of the articles themselves). This is submitted to be nothing more than common sense and the obligation on the plaintiff in this case is to give the best particulars he can and to put the defendants on notice of the case they have to meet. This the plaintiff has done, it is argued.
30 In circumstances where the plaintiff has given the best particulars he can, the objections of the defendants simply cannot be maintained. It is a case of the defendants "not liking" the answers, the plaintiff says. It may be the case that the defendants consider that the matters particularised will not at trial support the allegation. The defendants no doubt have a view as to the inadequacy of the particulars in support of the allegation of a "campaign". Thus the plaintiff asserts that the defendants will be "relaxed" about the claim for aggravated damages when it comes to trial. In the end the plaintiff sees the defendants' stance as argumentative only, and, in fact, an assertion that the plaintiff's case, in order to succeed, must be something different.
31 In short, the plaintiff's case relies "on inference" from the fact and content of the articles particularised. The defendants are on notice of the case they have to meet. Any view that they hold as to the weakness or unsoundness of the case will be vindicated by appropriate submissions in the light of the evidence called at trial.
32 The plaintiff is particularly critical of what he says is the defendants' intent to distort his case on aggravated damages particularised by asserting it to be one of conspiracy and thereby deficient in its particularisation. Even in a conspiracy action the plaintiff is only obliged to plead such overt acts as he or she is able to give and can reasonably give. That is perfectly understandable when one takes into account the nature of a conspiracy which, as the plaintiff submits, can be wholly "opaque". It is the "external" or "overt" acts that evidence any posited agreement to commit an unlawful act or to commit a lawful act with the predominant intention of injuring the plaintiff. The mechanism of the conspiracy would be obscured from the plaintiff. However particularised (and proven) overt acts could give rise to a rational inference that there was such a conspiracy. Further, for the defendants to suggest that what the plaintiff is particularising is an "allegation" or "agreement" or "arrangement to do something", there is a minimum necessary "volume" of particulars that must be given: this does not accord with general principle in that each case depends upon its own facts and what particulars must be furnished in any given case must always depend upon the facts of that case: Philips v Philips (1878) 4 QBD 127 per Cotton LJ at 139.
33 The second point the plaintiff makes in general terms in relation to what he contends to be the inappropriate analogy of "conspiracy" is that in a pleading of conspiracy the overt acts are material facts which must be pleaded and pleaded to. They are the essence of the cause of action for conspiracy and without those overt acts being pleaded no reasonable cause of action is disclosed. The plaintiff says this dispute is about particulars, the function of which is not to complete a cause of action, but to put the opposite party on notice of the case it has to meet on the cause of action. To some extent this proposition is subsumed in the submissions for the defendants. The submissions for the defendants rest upon the defendants having elevated the case the plaintiff has particularised to one of "conspiracy" and required, therefore, particularisation of matters which would be the subject of pleading as material facts in a Statement of Claim. Even viewed this way, the defendants' objection, according to the plaintiff, is specious. The defendants are concerned to amplify an allegation of inadequacy in particulars by positing a head of claim, as it were, which the plaintiff does not have to make and indeed cannot make for the reasons stated. As the plaintiff has said in its written submissions, stripped of its essentials, the defendants' position is "give us particulars which you are manifestly unable to give, because the matters cannot be within your knowledge, or we will move to strike out that part of your claim".
34 Finally, the plaintiff perceives the defendants' other principal objection under this broad heading to the effect that it complains that the plaintiff has failed to particularise whether the conduct relied on falls within the category of improper, unjustifiable or lacking in bona fides (the proper particularisation of the Triggell v Pheeney component). The plaintiff's response is that what he has done is to give notice of the conduct in respect of which it will be submitted in due course on such evidence as is called about it, that it is improper, unjustifiable or lacking in good faith. Neither Triggell v Pheeney nor Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 (particularly at 74F) requires more than that the defendant be supplied with sufficient particulars to enable it to know the case it has to meet.
35 I agree with the submission for the plaintiff that there is no obligation upon him to "allocate" the asserted conduct to any one or more of the categories of impropriety, unjustifiablity or want of bona fides. I do not agree insofar as it could be understood that the plaintiff, if he is in a position to do so, is nonetheless not required to particularise the facts, matters and circumstances upon which he relies in asserting that the conduct has one or more of those requisite qualities (see Harrigan v Jones [2000] NSWSC 844 at 58, 18 August 2000, Levine J and Gilbert v Catholic Education Office [2002] NSWSC 214 at 20, 18 March 2002, Levine J; see also Antoniadis v TCN Channel Nine Pty Ltd, Levine J, unreported, 26 February 1997).
36 The issue here is whether or not the plaintiff has properly identified the conduct and has given appropriate particulars of it, from which certain matters will be proved, either directly or by inference and in respect of which a finding could be made as to whether that conduct is improper, unjustifiable or lacking in good faith.
37 In view of the broad sweep of the particulars of which the defendants complain I do not see it as my function to go through them particular by particular, but to form an overall view as to whether, under this first head of argument, the plaintiff has fulfilled his obligations.
38 The defendants sought particulars in respect of the additional articles as to the meaning or meanings the plaintiff relied on as arising from each publication and whether the plaintiff asserted that any, and if so, which, of those meanings is false. The plaintiff's response was to the effect that such publications "compounded the impression made by the matter complained of" and "the defendant published such articles without regard for the truth or falsity of the facts alleged therein, and as part of a relentless campaign to denigrate the plaintiff". This assertion is restated in various ways.
39 The defendants then address the matter of principle that evolved into the subject of much contention in the course of submissions.
40 The defendants' position is that it can be taken to have been settled for many years that evidence of other defamatory words published by the defendants about the plaintiff can be relied upon as evidence of malice, even though they are not the subject of an action and even if they were published subsequent to the matter complained of or the Statement of Claim: see Gatley on Libel and Slander (8th edition), 1988, paragraph 1328. The defendants suggest that the same principles apply to allegations of such publication in relation to aggravation of damage, citing Grubic. There seems to be, it is said, no reason for any different principle to apply to the two issues; indeed, subject to satisfaction of the requirements of Triggell v Pheeney, it is for a plaintiff to assert an aggravation of damages precisely because of the alleged malice of the defendants.
41 Equally, the defendants say it is settled that if evidence of other defamatory publications by the defendants about the plaintiff is relied upon, the defendants are entitled to meet such reliance by leading evidence of any facts which would have constituted an affirmative defence. In this regard the defendants cite Grubic, Gruzman, Warne v Chadwell (1819) 2 Stark. 456 [171 ER 704]; and the statement in Spencer Bower, The Law of Actionable Defamation (2nd edition 1923) at 138-9.
42 To these series of cases I will return.
43 The existence of affirmative defences is generally to be assessed vis-à-vis the causes of action relied upon by the plaintiff under s9 of the Defamation Act 1974, namely the imputations. Whilst the defendants acknowledge that it is perhaps unnecessary that the plaintiff who seeks to rely on additional publications in relation to malice/aggravation need go so far as to plead imputations with the precision required under the Act, it is submitted that it is necessary that the plaintiff identify with some precision the meanings which are said to emerge from individual publications. Thus, the defendants will be put on reasonable notice of the evidence that they might be entitled to adduce consistent with the principles said to flow from the authorities cited above, that is to establish an affirmative defence.
44 The defendants exemplify what they say is a dilemma: a particular article might carry a series of allegations only some of which are asserted by the plaintiff to be false. It would follow that only the "false" allegations could be the subject of a possible connection with an allegation of malice and/or the aggravation of damage. In the absence of an indication from the plaintiff which allegations are the subject of complaint, the defendants would have no idea which allegations they should be prepared to support at trial in an attempt to rebut the plaintiff's charges. A plaintiff may assert that an article conveys a particular meaning which might not be obvious, yet is present on a fair reading of the article. Unless particulars of such meaning are given the defendants might be caught entirely by surprise at the hearing of the matter.
45 A further issue is that a plaintiff may assert (as the plaintiff here says it is entitled to do) that the defendant has published a particular true allegation, but has done so maliciously. It might be asserted that some articles were published in circumstances where a defence of fair protected report would exist and the plaintiff might wish to assert that the publications were not made in good faith (see, for example, Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58).
46 Thus, the defendants submit that the plaintiff is required to identify with precision the allegations which are falsely made in the additional articles, and the facts, matters and circumstances relied on to establish that falsity. Pausing there, I interpolate that in my view it would be sufficient merely for the plaintiff to assert, if there is any requirement at all, that the statement in an additional publication is false. As a matter of evidence, the issue of falsity would be initiated as a matter to be determined by a statement by the plaintiff, on oath, that a statement in the article was simply false. I do not see how a plaintiff in that position can be compelled to particularise the basis of falsity. The situation, of course, is different where the plaintiff asserts not only that the statement was false but that the defendant either knew it was false, was reckless as to its truth or falsity, or had no belief in its truth. In that situation the plaintiff could be compelled to particularise the facts and matters upon which the plaintiff relies in making that assertion.
47 The particulars hitherto provided by the plaintiff, the defendants contend, are inadequate in these respects. In submissions the defendants exemplify their complaint in a degree of detail to which it is unnecessary for me to go, making reference to assertions as to the "impression" created by particular articles, or the assertion that some articles were "misleading". Indeed, where what is described as "something approaching the required particulars" are provided, ambiguity still remains. The overall effect of the particulars supplied, it is contended, is confusing and the defendants are entitled to have the meanings of the articles on which the plaintiff relies distinctly and unambiguously identified.
48 The plaintiff perceives the defendants' position to be that they are entitled to meet and defeat the claim in aggravation of damages as of right in the event that another publication relied upon to that end could be regarded as giving rise to defamatory imputations and one or more notional defences exist to the publication of such imputations as if they have been pleaded as causes of action. Thus, according to the defendants as the plaintiff sees it, the plaintiff is obliged to formulate imputations that arise out of the aggravating articles before he can establish any claim for aggravated damages and the defendant is entitled to a full trial of the issues in the same manner as if the imputations themselves were being sued upon as causes of action. The principle thus formulated, according to the plaintiff, is unsound and its consequences unnecessary, inconvenient and undesirable in practice.
49 The authorities for the proposition that the defendant is entitled to meet such a claim by leading evidence of any facts which would have constituted an affirmative defence are four in number: Gruzman, Grubic, Warne and Spencer Bower. Spencer Bower's statement (at 138-9) rests on the authority of Warne. Hunt J's authority in Gruzman is Spencer Bower and Gruzman is his Honour's authority for his decision in Grubic. Thus, says the plaintiff, the whole edifice rests on Warne's case.
50 The report in Starkie of Warne's case is sparing. I shall take the unusual course of setting out in full that report:
"(In an action for slander, words are given in evidence in order to prove malice, which are not stated in the declaration, the defendant may prove the truth of such words.)
This was an action on the case for words spoken of the plaintiff in his trade of a maker of instruments for drawing beer. The words were: " He is a bankrupt, and cannot pay 5s. in the pound, he is not fit to be trusted."
For the purpose of shewing a malicious intention on the part of the defendant , the plaintiff proved that the defendant on another occasion had said, that the plaintiff had called his creditors together, and had offered them a composition of 5s. in the pound.
On the part of the defendant proof was offered of the truth of the latter words, which the defendant had no opportunity of justifying, since they were not upon the record and Abbott Ld C.J. was of the opinion that such evidence was admissible and it was given accordingly . (See Buller's N. P. 10, Collison v Loder )" (emphasis added)