Anderson v Nationwide News Pty Ltd [2001] VSC 335

Supreme Court of Victoria|2001-09-10|Before: Ashley J

Defamation - justification - Polly Peck defence - whether defence should be struck out. Defamation - fair comment - whether defendant can be required to identify alleged comment - whether defence should be struck out if the subject matter of comment is unrelated to any meaning of impugned article pleaded by the plaintiff, or a permissible variation of any such meaning. Defamation - qualified privilege - mass medium defendant - whether defence should be struck out - categories of exceptional circumstances.

Before me is a summons filed in this defamation action on 24 July 2001 by which the plaintiff, relying on Rule 23.02, seeks an order that paragraphs 8-15 of the Defence be struck out. The only live issues arise with respect to paragraphs 8-10. The plaintiff by amendment to paragraph 3 of the statement of claim has rendered paragraphs 11-15 of the Defence as filed irrelevant. The three issues which remain alive respectively concern the affirmative defences of justification (para 8), fair comment (para 9) and qualified privilege (para 10).

The plaintiff sues on an article admittedly published by the defendant in "The Australian" newspaper which circulated in Victoria on 18 May 2001. The article, headed "When bullies talk, it's time to walk", is said by the plaintiff who was and is the chief executive officer and Managing Director of BHP, to have been defamatory of him. He pleads that:

"5. In its natural and ordinary meaning the article was defamatory of the plaintiff and meant and was understood to mean that - (a) the main reason the plaintiff as the Chief Executive Officer of BHP promoted and supported the merger of BHP and Billiton Plc was for the ulterior purpose of enabling him and his wife to return to live in the United States earlier than what otherwise would have been the case;

(b) the plaintiff had contrived the merger of BHP and Billiton Plc for the ulterior purpose of enabling him and his wife to return to live in the United States earlier than what otherwise would have been the case;

(c) the plaintiff as Chief Executive Officer of BHP had breached his duties to BHP and its shareholders by supporting the merger of BHP and Billiton Plc for the ulterior purposes of appeasing his wife and to enable them to return to live in the United States earlier than what otherwise would have been the case."

By its Defence the defendant relevantly denies that the article was defamatory of the plaintiff and denies the three imputations which I set out a moment ago. It does not plead that, if those imputations, or any of them, were conveyed by the article, they were true. It does however, raise by paragraph 8 a Polly Peck defence[1]. This is what paragraph 8 says:

"8. Further or in the alternative, in its ordinary and natural meaning the article meant and was understood to mean that: (a) the Plaintiff was promoting and supporting a merger of Billiton and BHP on terms which did not favour BHP or its shareholders;

(b) the Plaintiff was promoting and supporting a merger of Billiton and BHP on terms which were not as favourable as they should have been to BHP and its shareholders

and in each of these meanings the article was true in substance and in fact."

According to the plaintiff's argument the plea raised by paragraph 8 is untenable and should be struck out.

By paragraph 9 of the Defence the defendant alleges that:

"Further or in the further alternative, the article was fair comment on a matter of public interest."

The plaintiff sought further and better particulars of that plea. He requested the defendant to:

"(a) Specify the meaning or meanings in which it is alleged the article was fair comment.

(b) State the material facts on which the comment was based.

The defendant provided further and better particulars. It did so in the following terms:

"(a) The Plaintiff is not entitled to any particulars pursuant to paragraph 1(a) of the request. Under cover of this objection the Defendant says that at trial it will contend that the article meant that:

(i) the Plaintiff was promoting and supporting a merger of Billiton and BHP on terms which did not favour BHP or its shareholders;

(ii) the Plaintiff was promoting and supporting a merger of Billiton and BHP on terms which were not as favourable as they should have been to BHP and its shareholders.

(b) The facts are set out in the article and in particular the statements that:

`They [BHP shareholders] are paying a $5 billion premium for a supposed dual listing which will put a company half BHP's size in control. Also, they have seen the value of their company downgraded in order to achieve an unfair 58:42 split of assets between the groups.'

(c) The merger, takeover, control and operation of BHP (one of Australia's biggest and most prominent companies) was a matter of public interest and the subject matter of the article."

According to the plaintiff's submission the plea of fair comment, as illuminated by the further and better particulars, is untenable and should be struck out.

By paragraph 10 of its defence the defendant alleges that:

"Further or in the further alternative, the Defendant published the article: (a) pursuant to a duty owed by it to the persons to whom the article was published, such persons having a corresponding interest to receive the same; (b) further or alternatively, pursuant to a common interest between the Defendant and the persons to whom the article was published and by reason thereof the article was published on an occasion of qualified privilege."

The plaintiff sought further and better particulars of that plea. He requested the defendant to:

"(a) State the material facts relied on in support of the allegation that the defendants published the article pursuant to a duty.

(b) Specify and identify the duty to publish the article alleged therein.

(c) State the material facts relied on in support of the allegation that the persons to whom the article was published had a corresponding interest in receiving the same.

(d) Specify and identify the interest in the persons who received the article.

(e) State the material facts relied on in support of the allegation that the defendants published the article pursuant to a common interest between the defendants and the persons to whom the article was published.

(f) Specify and identify the common interest alleged therein."

The defendant provided further and better particulars as follows:

"(a)-(f) BHP was one of Australia's biggest and most prominent companies, a company identified as `the big Australian' and a company the welfare and circumstances of which were important to the Australian economy and the people of Australia. Accordingly, the Defendant had a duty and interest in disseminating information, opinions and arguments concerning its operation and any proposed merger or takeover and the terms of any such proposed merger or takeover. Similarly, and for the same reasons, each member of the Australian community had an interest in receiving such information opinions and arguments."

According to the plaintiff's submission the plea of qualified privilege, taking into account both paragraph 10 of the Defence and paragraph 2 of the further and better particulars, is evidently hopeless and should be struck out.

Mr Sher QC, who appeared for the plaintiff with Mr Michael Wheelahan, submitted that paragraph 8 of the Defence was untenable for one or more of three reasons:

[diamond] the imputations which it pleads are contrived and do not arise;

[diamond] even if the article was capable of conveying the meanings alleged by the defendant, it also conveys, as a separate and distinct allegation, the imputations alleged by the plaintiff. The plaintiff has chosen to sue on the latter. It is not open to the defendant to seek to justify the separate and distinct meanings contended for by the defendant[2];

[diamond] the imputations which it pleads are substantially different from, whether or not less serious than, the imputations alleged by the plaintiff. For that reason the defendant's plea is impermissible[3].

For the defendant, Mr David Beach of counsel submitted, first, that if the plaintiff was to succeed in its application to strike out paragraph 8 of the Defence he must satisfy the court that the plea was "obviously unsustainable", or "so obviously untenable that it cannot possibly succeed", or "so manifestly faulty that it does not admit of argument"[4]. The propositions thus advanced were not in dispute.

Mr Beach then submitted that the first argument advanced for the plaintiff concerning paragraph 8 must fail. The meanings specified in the paragraph were clearly capable of arising.

I could not conclude, applying the appropriate test, that a jury might not find that the pleaded meanings were conveyed by the article. It is unnecessary to accept the full import of the submission made by Mr Beach in order to reject the first point raised by Mr Sher.

Mr Beach submitted, next, that the second and third points raised by Mr Sher concerning paragraph 8 reduced to the proposition that it was not open to the defendant to justify meanings which were "entirely" or "substantially" different from the imputations alleged by the plaintiff. He went on to submit that the requirement of the majority judgments in Hore-Lacy do not oblige a Polly Peck imputation to be substantially identical to a plaintiff's meanings; and that, applying the correct test, there was no basis for striking the pleading down.

There is plainly a relationship between the second and third submissions advanced by Mr Sher. They do not cover quite the same territory. But any difference is not material here. I consider that paragraph 8 is outside the permissible limits of a Polly Peck defence as outlined in Hore-Lacy, a decision which binds me. That disposes of paragraph 8 so far as it seeks to raise a justification defence.

The principle which emerges from the majority judgments in Hore-Lacy is that a permissible Polly Peck defence must plead a meaning not more serious and not substantially different from the meaning pleaded by the plaintiff[5].

According to the plaintiff's case the article, critically, meant that he had supported and contrived the BHP/Billiton merger, and had breached his duties to BHP and its shareholders, by supporting that merger for ulterior purposes - that is, of enabling he and his wife to accelerate their return to the United States and, to appease his wife.

The meanings pleaded by the defendant allege simply that Mr Anderson promoted and supported a merger which did not favour BHP and its shareholders; a merger whose terms were less favourable than they should have been to BHP and its shareholders.

The essence of the meanings pleaded for the plaintiff is that Mr Anderson acted for ulterior motives. The essence of the meanings alleged by the defendant, by contrast, is entirely devoted to the plaintiff's alleged promotion of and support for a merger which was unsatisfactory from the standpoint of BHP and its shareholders.

Thus viewed, and accepting - contrary to a submission advanced by Mr Sher with less than his usual force - that the meanings pleaded by the defendant could be held defamatory of the plaintiff, I think it very clear that those meanings are greatly different from the meanings pleaded by the plaintiff. It is, I consider, very clear that the sting of the meanings alleged by the plaintiff and defendant is quite different. Moreover, I cannot think that the plaintiff, having regard to the meanings which he pleads, would be entitled to a verdict not on those meanings but on the meanings pleaded by the defendant.

The defendant's justification defence should, then, be struck out. Does that mean that paragraph 8 of the Defence should be struck out in its entirety? Mr Beach submitted that it would be enough if the words "and in each of these meanings the article was true in substance and fact" were struck out. That would deprive the defendant of its justification defence. The balance of the paragraph should remain, simply to put the plaintiff on notice what it was that the defendant would contend at trial were the real meanings of the article, this extrapolating the bare denial made by paragraph 5.

In his dissenting judgment in Hore-Lacy Callaway JA contemplated that alternative meanings might be put forward by a defendant in its defence, not for purposes of a justification plea, but "as no more than an elaborate or explanatory traverse of the meanings alleged by the plaintiff"[6]. In the event, regardless whether the Rules strictly require it, I consider that the defendant should be permitted to elaborate upon its bare denial in paragraph 5 by asserting the meanings which it says the article bore. I think that this could be achieved by an order that the words "or in the alternative" be deleted, and be replaced by the words and figure "to paragraph 5 hereof", and by inserting after the words "understood to mean" the word "only" - that is, in addition to deletion of that part of paragraph 8 which commences "and in each...". I should add that I consider insertion of the word "only" is necessary in order to make it clear that the defendant's necessary assertion is that the meanings for which it wishes to contend are to the exclusion of the meanings contended for by the plaintiff. From the plaintiff's standpoint, to the contrary, it is enough that the meanings for which he contends are not exclusive meanings of the article.

Mr Sher submitted that the defendant had, by its further and better particulars, specified the meanings in which it alleged that the article was fair comment. They were the meanings pleaded by its justification defence. He then contended that

[diamond] the meanings alleged both by the plaintiff and the defendant were allegations of fact, not comment;

[diamond] the defendant should not be permitted to allege fair comment in connection with meanings substantially different from those pleaded by the plaintiff.

For any one of those reasons, he submitted, the fair comment defence should be struck out.

Let it be assumed, for the moment, that the defendant could be required to and did in fact state the meaning of the article so far as that meaning was allegedly constituted by comment. Let it be further assumed that if it was not open to conclude that the article conveyed that meaning the plea of fair comment must fail. I have already concluded, in connection with the justification argument, that for purposes of a r. 23.02 application I could not say that the defendant's pleaded meanings in paragraph 8 of the Defence are obviously unsustainable. The meanings alleged under cover of objection by paragraph 1(a) of the Further and Better Particulars are the same. It follows that, upon the assumptions which I have made, assumptions favourable to the plaintiff, the first submission made by Mr Sher in connection with the fair comment defence must be rejected.

I reject also the second submission which Mr Sher advanced. Even if it was the case that the subject-matter of alleged comment consisted entirely of fact, it does not follow that all that was said in the article concerning that subject matter was itself fact. That is enough to dispose of the plaintiff's submission as it was originally framed. In argument, however, Mr Sher submitted, in effect, that on analysis it could be seen that there was no comment within the article, or at least that what was fact and what was comment was so inextricably interwoven that the defendant should be denied its fair comment defence. In the latter connection he relied upon a passage in the judgment of Fletcher-Moulton LJ in Hunt v The Star Newspaper Company, Limited[7].

Assuming for the moment rejection of Mr Sher's third submission I think that the application of r. 23.02 requires that the jury should not be deprived of the opportunity of determining whether or not the article made comment; comment, moreover, that could be separated out from allegations of fact.

That takes me to Mr Sher's third submission. He contended that what the defendant was evidently attempting to do was to argue that the article was fair comment upon a subject matter defined by the meanings of the article which it alleged. It was obviously not seeking to plead that the article was fair comment upon a subject matter defined by the meanings which the plaintiff alleged. He submitted that by parity of reasoning with the permissible limits of a Polly Peck defence a defendant should only be permitted to plead fair comment with respect to the subject matter defined by the plaintiff's pleaded imputations; or imputations sufficiently close thereto to authorise a jury verdict for the plaintiff.

To set the scene for consideration of the submission one obvious point may be made: if the jury was to find that the plaintiff had been defamed it would involve acceptance of the plaintiff's case that the article bore the meanings pleaded by the plaintiff or permissible variants. It would also involve rejection of the defendants foreshadowed case that the article bore only the meanings alleged by paragraph 8 of the Defence. The finding would leave open the possibility that, according to the jury's conclusion, the article conveyed both the meanings alleged by the plaintiff (or permissible variants) and the meanings alleged by the defendant.

The Defence is one of fair comment on a matter of public interest. That requires identification of the matter of public interest. Mr Beach readily conceded that a defendant may be required to specify that matter. Here the defendant did so by its particular 1(c), which said, in substance, that the merger, takeover, control and operation of BHP was a matter of public interest; and (gratuitously) that it was the subject matter of the article.

To say that an article constituted comment about a defined topic of public interest says nothing about the focus of the alleged comment. An article generally concerning the BHP/Billiton merger might have approached the matter in a variety of ways: by focussing upon economic aspects of the sale for Australia, or upon the significance of the sale for BHP and its shareholders, or upon the job security of BHP employees, or upon BHP and/or Billiton plans to dispose or rationalise assets, or upon the role of BHP and/or Billiton executives in bringing the merger about. It might be the case that an article would combine more than one of those focuses. In the present case the plaintiff alleges that the meaning of the article had at least one focus - the conduct of the plaintiff, as an executive of BHP, in promoting and supporting the merger for ulterior purposes. The defendant wishes to say, judging by paragraph 8 of its Defence, that the meaning of the article focussed only upon a different perspective - that the plaintiff promoted and supported a transaction which was unsatisfactory for BHP and its shareholders.

Mr Sher submitted, in effect, that the defendant's fair comment defence was confined by reference to the paragraph 8 meaning. Because, even if made out, the defence was so confined, it could not provide a defence to the plaintiff's claim and should be struck out. He relied upon Polly Peck[8], Control Risks Ltd and Ors v New English Library Ltd and Anor[9], Sian Lloyd[10], and Reynolds v Nationwide News Pty Ltd[11]. He said that he was inviting me to make new law in this country.

Mr Beach submitted that the answer to the question whether a defendant can be required to specify the meanings which are said to constitute fair comment depends upon the rules of court in the particular jurisdiction. In Victoria there was no such requirement. He cited Watt v Herald and Weekly Times Ltd[12]. Control Risks, he submitted, must be understood in the context of the English Rules of Court. He emphasised that in Victoria the defence of fair comment is a defence to the publication rather than to an imputation. That should be contrasted with the New South Wales position. There each pleaded imputation constitutes a cause of action. The way in which a fair comment defence operates in that State was illustrated, he submitted, by New South Wales Aboriginal Land Council v Perkins[13]. He said that all that had been done by paragraph 1(a) of the particulars was to say what, according to the defendant, the article meant. But the comment could be something else.

In reply, Mr Sher submitted that Watt was concerned with so-called rolled-up plea. It was a case in which the defendant was asked to state what facts supported the alleged comment. It was not a case in which the defendant sought identification of the comment. He submitted further that Control Risks was a common law decision not dependent upon rules of court. It reflected the law as it had developed since Aga Khan v Times Publishing Co Ltd[14]. He referred in this connection to Lucas-Box v News Group Newspapers Ltd[15], discussed in Control Risks[16]. He further submitted that the Aboriginal Land Council case was irrelevant. It was a decision based on a particular statutory regime.

In my opinion the authorities do not support the proposition that a plaintiff is entitled to particulars of the meanings in which it is alleged that a publication was fair comment; but they support a variant of that proposition.

In my opinion, also, certain authorities provide quite strong support for the proposition that where a plaintiff sues on an entire article, alleging that it bears a particular defamatory meaning (not necessarily the only defamatory meaning of the article) a defence of fair comment is untenable unless it pertains specifically to the defamatory meaning pleaded - or a permissible variation thereof.

The cases that get closest to establishing the second proposition are Polly Peck and Sian Lloyd.

In a well-known passage O'Connor LJ said this in Polly Peck:

"I am now in a position to state my conclusions. In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true and to give particulars of the facts and matters upon which he relies in support of his plea, as he is required to do by R.S.C., Ord.82. It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain. Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification. Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication. What I have said in the context of justification can be applied by a parity of reasoning to fair comment, subject to what I say at the end of this judgment."[17]

The reservation contained in the last sentence of the passage referred to a provision in the English Defamation Act 1952. It does not bear upon the present debate.

In Polly Peck, it needs to be kept in mind, the plaintiffs claimed damages for libel in respect of the whole of one article and parts of two other articles. The plaintiffs pleaded that so much of the material as they relied upon conveyed certain meanings. The defendants pleaded justification and fair comment. They particularised those defences. They did so in part by reference to assertions made in the second and third articles of which the plaintiffs had not complained. The plaintiffs sought to strike out the particulars of fair comment and justification pleaded in support of those assertions. The strike out application failed because the assertions which were particularised "were not separate and distinct allegations"[18].

37 Polly Peck, then, was not a case about a failure to provide particulars.

The question which arises is what O'Connor LJ meant by his reference to a fair comment defence. The passage could be said to mean, to the advantage of the present plaintiff, that where a plaintiff selects words from a publication and asserts that in their own and natural meaning they are defamatory of him, and pleads the meanings which he contends for, a defendant may plead, by reference to the whole publication, that the words bear a different stated meaning, and that insofar as they bear that meaning they constitute fair comment on a matter of public interest; but that where a publication contains more than one separate and distinct defamatory statement and the plaintiff sues on one of them, a defendant cannot make out a defence of fair comment by reference to a defamatory meaning upon which the plaintiff has not relied.

If the passage does bear that meaning then I should think that it would be important to have the alleged comment identified. Its identification should enable a court to see whether or not it was directed to a defamatory statement relied upon by the plaintiff.

40 Control Risks involved a general plea of fair comment. On a pleading summons a judge held that the words complained of might be thought by a jury to be in part comment and in part statements of fact. The defendant had not attempted to justify the latter. What might be regarded as comment was inseparably intertwined with what were apparently statements of fact. There was too much allegation of fact which was not sought to be justified to permit the fair comment defence to stand.

An appeal was allowed. Nicholls LJ, for the court, said that whether words complained of included a comment, recognisable as such, on a matter of public interest was for a jury to decide. It was for a jury to decide whether, as the plaintiff contended, the alleged comment was incapable of being distinguished from statements of fact. He could not accept that there was such an intermingling that a reasonable jury properly instructed could not find that a comment "to the effect now crystallized" was made in the words complained of[19].

Mr Sher relied upon a passage in the judgment in which Nicholls LJ said that nowhere had the defendants identified the comment which they sought to defend as fair comment. That was unsatisfactory. By parity of reasoning with the requirement of Lucas-Box particulars in a justification case:

"When fair comment is pleaded the defendant must spell out, with sufficient precision to enable the plaintiff to know what case he has to meet, what is the comment which the defendant will seek to say attracts the fair comment defence."[20]

In the particular case the defendants had spelt out, in argument in the Court of Appeal, what they alleged was the comment to which the plea was directed. No question in fact arose whether particulars should be ordered; and, if so, then what particulars should be required.

I do not take Nicholls LJ to have said, even obiter dicta, that particulars would be ordered of the meanings in which the article was alleged to be fair comment. Rather, he spoke of identification of what was said to be comment, in a context where fact and alleged comment were intermingled.

Moreover, it does not seem to me that by his reference to the particulars required in a justification case Nicholls LJ was saying anything about the limits which were established in Polly Peck upon pleading that defence, and extrapolating those limits to a defence of fair comment[21].

46 Sian Lloyd involved a strike out application to a plea of fair comment. The plaintiff contended that the article of which she complained made two separate and distinct criticisms of her - one relating to her professional qualifications and performance, the other relating to her private life. She sued only upon the former; but the defendant, inter alia, pleaded the latter as a meaning, and alleged that the same constituted fair comment.

Bingham MR, for the court, cited the passage in Polly Peck to which I earlier referred. He concluded that the case was one in which the impugned article did contain separate stings. The plaintiff had relied upon passages which conveyed both of them. She was entitled to, and had, attached meanings to the passages which referred to one only of the stings. But the defendants were entitled to plead, and had pleaded, the meanings which they said was the meaning of those passages. So the judge at first instance had been wrong to treat that case as one in which there were separable defamatory meanings of which the plaintiff had complained of only one.[22]

The Master of the Rolls seems definitely to have proceeded on the basis that if a publication contained more than one sting, and if a plaintiff relied upon parts of such publication which unequivocally related only to one of those stings, then a defendant could not plead a different sting and erect a fair comment defence with respect to it.

The pleadings in Sian Lloyd were somewhat different to the pleadings in the present case. The plaintiff did not rely upon the whole article and attach meanings to it; and the defendant's defence was confined to so much of the article as the plaintiff identified. That might possibly be a reason why the position of principle apparently adopted in Sian Lloyd, in reliance on Polly Peck, would not extend to the type of case now under consideration.

Summarising thus far, Polly Peck and Sian Lloyd were cases in which debate arose concerning a fair comment defence when a plaintiff sued upon specified parts of a publication and alleged that such parts conveyed a particular sting. Did the publication contain more than one sting? Were the stings separate? Had the plaintiff sued upon one sting only? Could the defendant plead a separable sting and raise a fair comment defence focussing upon that sting? Control Risks, on the other hand, to the extent that it is of present relevance, mainly dealt with the provision of particulars where fair comment was pleaded.

The issue of particulars needs to be further considered. Mr Beach submitted that particulars need not be provided of "the meaning(s) in which it is alleged the article was fair comment". Bearing in mind the fact that, under cover of objection, the defendant said by its further and better particulars that at trial it would contend that the article had the meanings pleaded in its justification defence, Mr Beach was perhaps submitting that I should uphold the objection and ignore the particulars.

The particulars having been provided, though subject to objection, I doubt that I could ignore them if the request was pertinent and if the particulars addressed the request. But was it, and did they?

53 Control Risks, notwithstanding a particular English rule of court to which reference was made in argument, seems relevantly to have reflected general pleading principles. That is the way in which it was cited by Hasluck J in Reynolds v Nationwide News Pty Ltd[23]. Certainly his Honour referred to the West Australian rule of court which applies in the case of a rolled-up plea of fair comment. But he did so quite distinctly from the "rule" in connection with which Control Risks was cited[24].

In submitting that Control Risks must be understood in the context of a particular English rule of court Mr Beach referred me to Cunningham-Howie v FW Dimbleby & Sons Ltd and Anor[25]. That was not a case in which the plaintiff sought identification of an alleged comment. Rather he sought particulars of the facts, matters and documents (if any) upon which the comment was based. It was argued for the defendants that such particulars were required by a 1949 English rule of court[26] in the case of a rolled-up plea of fair comment, but that the rule was silent in the case of a general plea of fair comment - from which it should be concluded that in the case of a general plea no particulars need be provided. Not so said the Court of Appeal. Aga Khan concerned the rolled-up plea. The 1949 rule of court had addressed that problem. Neither Aga Khan nor the rule of court had anything to say about the question of provision of particulars in the case of a general plea of fair comment. Particulars should be provided.

55 Watt, also relied upon by Mr Beach, was a case in which the defendants pleaded the rolled-up plea. Again the plaintiff sought particulars of the facts upon which the comment alleged to be fair was based. Hedigan J refused to order that particulars be given. He referred to Aga Khan, to early Victorian authorities said to be to the contrary - decided when the rolled-up plea was "universally regarded in Anglo-Saxon law as a plea of justification"[27], to amendment of rules of court in various Australian jurisdictions, to McLachlan v Rural Press Ltd (No.2)[28], in which Higgins J refused to follow Aga Khan, and to his own long experience in the law. He concluded that particulars should not be required as to what the defendant alleged were facts and what was comment. It was significant to his Honour's decision, I think, that in the case of a rolled-up plea a defendant is confined to the facts in the publication. No question arises of seeking particulars of fact outside the publication. To require a defendant to give particulars of which of the facts contained in an article it intended to rely upon really asked it to particularise the substance of the evidence and the argument upon which it would rely[29].

Neither of Aga Khan or Watt, then, concerned a general plea of fair comment. They involved a form of pleading not adopted by the defendant in the present case. Neither of those cases, nor Cunningham - Howie, concerned an application seeking identification of comment. Cunningham - Howie was a case in which a general plea of fair comment was made. The defendants were asked to give particulars of facts relied upon. But there the facts could have included extrinsic facts. Neither Aga Khan nor Cunningham - Howie was cited in argument in Control Risks. Lucas-Box, on the other hand, was cited and applied. That case raised the question whether a defendant who pleads justification must state the meaning which he seeks to justify, and adequately particularise the same. In deciding that a defendant is obliged to do so the Court of Appeal applied ordinary pleading principles.

In all, it seems to me, the dictum of Nicholls LJ in Control Risks concerning identification of the comment which a defendant will seek to say attracts the fair comment defence is neither explained by the existence of a special pleading rule in England, nor at odds with the common law position concerning particularisation of facts in the case of a rolled-up plea as stated in Aga Khan and Watt. His Lordship's observations rather reflect what was said by Ackner LJ, for the court, in Lucas-Box:

"It is axiomatic that the function of pleadings is to define the issues between the parties so that both the plaintiff and defendant know what is the other side's case and thus everyone, counsel, judge and jury, are able to focus on the real nature of the dispute. Although to some it may seem a startling observation, we can see no reason why libel litigation should be immune from ordinary pleading rules."[30]

In my opinion the dictum of Nicholls LJ in Control Risks should be given application in this State. No authority directly in point was cited to the contrary. Here, no less than in England, the ordinary pleading rules, so far as they are not inconsistent with some special situation[31], should be applied to libel cases. A party should not be required to disclose the substance of that party's evidence. But a party should be required to spell out the case which the opposing party has to meet. In the case of a defence of fair comment that should extend to identification of the alleged comment. That does not mean identification of the particular words in a publication which are said to constitute comment but rather a statement of the substance of the comment. That was what was done, in the course of argument, in Control Risks[32]. There is nothing radical in any of this.

In concluding that a defendant should be obliged to disclose the substance of alleged comment I have not ignored the circumstance that it is for the tribunal of fact to determine the meaning of an impugned publication; and that, conceptually if not probably, it might be a meaning other than that pleaded by or argued for by either of the plaintiff or the defendant. That said, there is a substantial limit to the extent to which the tribunal of fact can depart from the meanings alleged by a plaintiff. That there is such a limit is at the heart of the reasoning of the majority in Hore-Lacy. For it was that limit which established the boundary beyond which a Polly Peck defence would not be permitted.

In the event, I do not consider that it should work any unfairness to require a defendant to specify the substance of alleged comment. An unfairness argument was raised, in the context of justification, in Lucas-Box. It was rejected on very practical grounds[33]. I think that such a practical approach has equal application in the present context.

How should the substance of alleged comment be specified? Bearing in mind the fact that the object of pleading and particulars is to enlighten the reader, and not to confuse or obscure , I think that no particular form should be required, but simply that the substance of what is said to be comment should be made clear. It will not be enough to specify the matter of public interest to which the alleged comment is said to relate.

In my opinion, further, it is inappropriate for a plaintiff to seek, as the plaintiff did here, particulars of the meaning(s) in which the defendant alleges that the article was fair comment. In a practical sense the substance of comment will presumably coincide with or relate closely to the meaning(s) assigned to the publication by the defendant. But what needs to be specified is simply the substance of the alleged comment. Once that is done, the connection or disconnection between the comment and the meaning(s) assigned to the article by the plaintiff (and the defendant, if the defendant pleads meaning(s)) should be very clear.

It follows from what I have said that whilst I reject the defendant's argument that it should not be required to provide particulars of the comment which it alleges it made, I do not regard the plaintiff's request for particulars as having been appropriate. Whilst paragraph 1(a) of the particulars, provided under cover of objection, probably says much about the likely substance of the alleged comment, as, very probably, does paragraph 1(b) I do not consider that I should act upon the particulars for the purposes of this strike-out application.

What follows, then, reverting to the second proposition advanced by Mr Sher, is strictly obiter dicta. But because if asked I would be inclined to grant leave to the plaintiff to deliver a further request for particulars of the alleged comment, it should be regarded as considered.

I have said that Polly Peck, as understood in Sian Lloyd, carries the plaintiff a certain distance. But are those cases decisive? In each of them, as I have pointed out, the plaintiff selected passages in the impugned publications and assigned meanings to those passages. That is not what the plaintiff has done here. Could the variation in pleadings require an unfavourable outcome to the plaintiff's contention, an outcome apparently contrary to that which would flow from a principle expressed in Polly Peck and Sian Lloyd?

Again, each of Polly Peck and Sian Lloyd proceeded upon a view of severability of stings which went beyond the outer limits of a Polly Peck justification defence as defined by Hore-Lacy. The plaintiff here contends, as a matter of symmetry with a justification defence of the Polly Peck type, that a fair comment defence should be denied if the comment does not pertain to the plaintiff's pleaded meaning, or a permissible variation of such meanings.

Suppose that the defendant in the present case was required to state the substance of the alleged comment. Suppose that the substance when stated made it abundantly clear that the comment pertained to a meaning of the article which the defendant pleads by paragraph 8 of its defence. I think in such a situation that no need would arise to apply a narrower test than that set up in Polly Peck and Sian Lloyd. The meanings pleaded by the plaintiff and defendant are, as I have said earlier, radically different. In the present case, then, it seems unlikely that it would be necessary to consider the extremity of the plaintiff's argument; and I will not do so.

Let me come back to the heart of the debate. Mr Beach submitted that the plaintiff sues upon the entire article. It is a defence to prove that the matter complained of constituted fair comment on a matter of public interest. The matter complained of was the article. It follows that it would be a defence to the plaintiff's claim - specifically the defamatory meanings which he pleaded, or permissible variations thereof - to show that the article was fair comment on a matter of public interest even if the comment was in respect of a subject-matter far removed from the allegedly defamatory meanings.

I must say that I have difficulty with the logic of that submission. Let me take an extreme example: suppose that in the article in question there had been a single sentence alleging that the plaintiff had committed some crime, the allegation being entirely unrelated to the BHP/Billiton merger, and the plaintiff had sued on that allegation. Mr Beach would say that a defence of fair comment could be maintained, and must not be struck out, even though any comment evidently related only to the merger.

Mr Beach submitted, as I noted earlier, that the validity of his submission could be tested by considering the situation in New South Wales, where each pleaded imputation is a cause of action. It was in that connection that he referred me to the New South Wales Aboriginal Land Council case.

That was an appeal from rulings on the defence of comment provided for by ss. 32-34 of the Defamation Act 1974 (NSW). One argument was that the primary judge had wrongly considered the defences on the basis that they must be directed to the imputation, and not to the "matter" making the imputation. The argument turned on the meaning of s. 9(1) and (2) of the Defamation Act. This is what they relevantly said:

"9. Causes of action (1) Where a person publishes any... article... by means of which or by means of any part of which, and its publication, the publisher makes an imputation defamatory of another person, whether by innuendo or otherwise, then for the purposes of this section: (a) that... article... is a matter; and (b) the imputation is made by means of the publication of that matter. (2) Where a person publishes any matter to any recipient and by means of that publication makes an imputation defamatory of another person, the person defamed has, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient: (a) in addition to any cause of action which the person defamed may have against the publisher for the publication of that matter to that recipient in respect of any other defamatory imputation made by means of that publication; and (b) in addition to any cause of action which the person defamed may have against that publisher for any publication of that matter to any other recipient."

The Court of Appeal held, following the Privy Council in David Syme & Co Ltd v Lloyd[34] that the primary judge had not erred. Priestley JA summarised what the Privy Council had decided this way:

"On the question I am now considering their Lordships held that the comment a defendant relies on in the defence of comment is `that which is embodied in the imputations pleaded by the plaintiff': see at 735. They also held that the comment alleged by the defendant as a defence must necessarily be one that `conveys such of the defamatory imputations pleaded as the jury find to have been established' (also at 735."[35]

"The Defamation Act 1974 was a revolutionary change in the laws of defamation in New South Wales. Before that Act a plaintiff merely stated the publication of which he complained and sought damages for loss of reputation flowing therefrom. After the 1974 Act a plaintiff no longer sued on the publication, but on the imputations which he alleged arose from it. Each imputation was a cause of action. Consequently, one would have thought, any successful defence must be a defence to the imputation. Otherwise the defendant would be answering a cause of action which the plaintiff does not rely on (viz, the publication), and the cause of action on which he does rely (viz, the imputation) would go unanswered. The submissions may also be answered as a matter of authority. The matter was dealt with by the Privy Council (in an appeal from the New South Wales Court of Appeal) in Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728."[36]

As I understood Mr Beach's argument, if the (statutory) defence of comment to a cause of action constituted by an imputation must be a defence to the imputation, then it follows that the defence of fair comment to a publication must answer the publication.

There is a recognised difficulty in extrapolating conclusions reached in the New South Wales statutory regime to the Victorian common law regime. I doubt that the extrapolation can be made in the present case.

At the heart of the Land Council case was the conception that there must be congruency between the meaning pleaded by the plaintiff and the comment relied upon by the defendant. The defence has as its starting point a defamatory comment[37].

It is true that, in Victoria, regardless of how many meanings are conveyed by a particular piece of matter, only one cause of action arises from it. But I do not consider that it follows from that circumstance that there is congruency if a defence of fair comment addresses a severable defamatory meaning of the publication which is not relied upon by the plaintiff. So to conclude would be to ignore the fact that nowadays a plaintiff is in general bound by the meanings which he attributes to a publication.[38] It would be to ignore the fact that where several distinct defamatory allegations having no common sting are made in a publication the plaintiff can sue upon one only, and the defendant cannot justify by pleading the truth of another[39]. It would be to ignore the developments concerning the Polly Peck defence which have taken place in Australia in recent years.

Neither counsel cited texts, but I have referred to Gatley on Libel and Slander, 9th Ed, and Gillooly, The Law of Defamation in Australia and New Zealand.

Gatley says the defence exists where "the words complained of" are fair comment on a matter of public interest[40]. Gillooly says that the defendant must prove that "the matter complained of" constituted fair comment on a matter of public interest[41]. But neither text, I think, addresses the issue debated before me. Gatley does not refer to Polly Peck in a relevant way in connection with the defence. Gillooly does not refer to that case at all in the present connection.

Counsel did not refer me to a passage in Control Systems. I mention it nonetheless, if only to say that in my opinion it does not bear on the present debate. Nicholls LJ said this:

"Counsel for the plaintiffs advanced a further argument along the following lines. The passages complained of contain a number of statements of fact which are plainly defamatory of the plaintiffs. None of those statements is sought to be justified. The plea of fair comment would provide no defence for the defendants regarding those statements. The plaintiffs are therefore bound to succeed at the trial. The comment which the defendants seek to defend as fair comment pales into insignificance when compared with the grave libels on which the plaintiffs will succeed. It would not be right for the defendants to be permitted to raise a plea which would greatly increase the length and cost of the trial when it could have no significant effect on the outcome. I am afraid I cannot accept this. Once more the plaintiffs are really inviting this court to trespass on the province of the jury. The argument of counsel comes down to this, that the plea of fair comment should be struck out because it could have no useful part to play in the action; if the defendants are not permitted to raise this defence, which goes only to the comment that the plaintiffs' commercial activities are undesirable, any award of damages to the plaintiffs would not be higher than the award would be if such a defence were permitted and were successful. For my part, I do not think that this is necessarily so.[42]

The basis upon which it was there contended that the fair comment defence should be struck out was not that the subject-matter of comment was an impermissible variation of the meanings pleaded for the plaintiff; but rather that the impugned passages contained defamatory statements of fact in respect of which justification was not pleaded and the fair comment defence could provide no answer.

All in all, the position concerning fair comment set out in Polly Peck, as understood in Sian Lloyd, appears to be consistent with the way in which the common law concerning defamation has developed in this country.

In Chakravarti v Advertiser Newspapers Ltd[43] Brennan CJ and McHugh J agreed in the result but differed in their reasoning from the other members of the court. In particular they regarded the pleading practice established by Polly Peck as being contrary to the basic rules of common law pleadings. But for present purposes, and bearing in mind the fact that in South Australia, where Chakravarti originated, the plaintiff sues on the publication, their Honours significantly said this:

"A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication."[44]

Allowing for the fact that on the majority view - and see later Hore-Lacy - a defendant may plead a Polly Peck defence in pretty limited circumstances, what their Honours said in the context of a suit brought in an essentially common law jurisdiction seems to offer support for my conclusion.

It follows from what I have said that in my opinion an application to strike out a fair comment defence could succeed on the basis of Mr Sher's third submission. To that conclusion only one footnote should be added. In such a case the defendant would not be denied the opportunity of arguing that the impugned article conveyed the defamatory sting in respect of which its fair comment defence would not lie. It could do so upon the question of damages.[45]

[diamond] Although the defendant pleaded that it had a duty to publish and that the Victorian readers had a corresponding interest to receive information concerning the BHP/Billiton merger, or else that it and its readers had a common interest, on analysis it was no more than a case of the defendant giving its readers information concerning a matter in respect of which the public had a general interest; and that was not enough: Stephens v West Australian Newspapers Ltd[46]. Mr Sher conceded that if the publisher has a relevant duty or interest then privilege is not lost in the event that publication extends beyond those persons who have the corresponding interest in receiving the particular information. But what could be said to be the defendant's duty or interest in the present case? It could not be a duty owed to BHP shareholders to alert them to the allegedly unfavourable terms of the merger. For the thrust of the article was that the merger proposal (to be formally decided that day) was a fait accompli. In any event, the defendant's further and better particulars did not suggest that the relevant readership was anything less than "each member of the Australian community". Moreover, the interest of the Australian community identified by the particulars was, in substance, no more or different than the matter of public interest identified in the particulars of the fair comment defence.

[diamond] A mass medium defendant can avail itself of the defence only in exceptional circumstances. Exceptional circumstances of only three types have been identified: first, public response to public attack: Adam v Ward[47]; Loveday v Sun Newspapers Ltd[48]; Kennett v Farmer[49]. Second, publication of statements made by a third person pursuant to or in discharge of that person's interest or duty to inform the public about a matter[50]. Third, publication of information concerning government or political matters: Lange v Australian Broadcasting Corporation[51].

[diamond] Subject to the recognition of a category of qualified privilege constituted by publication of information concerning government or political matters Australia has not followed a more liberal approach with respect to mass medium publications which may apply in England. Compare Reynolds v Times Newspapers Ltd[52] with Vilo v John Fairfax & Son Ltd and Anor[53].

[diamond] This was not a case falling within any of the three categories of exceptional circumstances thus far recognised in Australia.

Mr Beach, for the defendant, submitted that the point to be decided was whether the defence raised something utterly unarguable. The authorities did not say that a mass medium defendant could not avail itself of the defence except if one of the identified categories of exception was relied upon. He cited Toyne v Everingham[54]. He submitted that the question whether the BHP/Billiton merger was simply a matter of general public interest, or was such as to fall within the conception of duty and interest or common interest required to make out a qualified privilege defence, was one of fact and degree, to be determined at trial.

Mr Sher, in reply, submitted that Toyne was bad law. It was inconsistent with principles set out in both Stephens and Lange.

It may be said, conceptually, that the classes of exceptional circumstances which will enable a mass medium defendant to rely upon the defence of qualified privilege are not closed. But I do not think that Mr Beach identified any circumstance which could be prtinent save for the extent of general public interest in the subject-matter of the article; and I doubt that such a circumstance has been said in any Australian case to be sufficient to enliven the defence.

89 Toyne, relied upon by Mr Beach, concerned defamatory statements that were made by the defendant on, or repeated in, the mass media. But no mass medium publisher was sued; only the individual who was the initial author of the statements. Further, the published material might very well be thought to fall within the conception of what became the Lange exception; for although the plaintiff was plainly identified the central matter at issue was the dispute between the Federal and Northern Territory governments concerning the "handover" of the Ayers Rock area to traditional Aboriginal owners. His Honour repeatedly referred to the political controversy out of which the defamation grew. Concluding that reciprocity of interest was not a necessary ingredient of qualified privilege in all cases[55], his Honour then said:

"If, however, I am wrong in this, I think a sufficient interest is shown from the circumstances. The questions of ownership and control of Uluru and Katatjuta were the subject of opposing political campaigns in both Territory and federal elections, and were matters of great interest and concern to people in the Northern Territory and throughout Australia."[56]

In the event, it seems to me that Mr Sher's submissions were well-founded. The defendant has not pleaded a defence which adverts to any of the exceptional circumstances recognised by Australian courts as protecting a mass medium defendant by qualified privilege. Again, in substance, as distinct from form, the defendant seems to say no more than that the privilege should attach because the BHP/Billiton merger (or takeover) was a matter of serious public interest. Further, on analysis Toyne does not assist the defendant.

In light of the conclusions just expressed paragraph 10 of the Defence should be struck out. Nothing need be said in the present connection, for the matter was not argued, about the passage in the judgment of Brennan CJ and McHugh J in Chakravarti which I set out when dealing with the fair comment defence.

In light of my conclusions, and further having regard to the amendment of the statement of claim, subject to anything that counsel may wish to say I will make orders in accordance with the following minutes:

(1) In paragraph 8 of the defendant's Defence the words "or in the alternative" and the words "and in each of these meanings the article was true in substance and in fact" be struck out, the words and figure "to paragraph 5 hereof" be inserted after the word "Further", and the word "only" be inserted after the word "mean";

(2) paragraphs 10-15 of the Defence be struck out.

---

[1] Polly Peck (Holdings) Plc and Ors v Trelford and Ors [1986] 1 QB 1000.

[2] Relying on Templeton v Jones [1984] NZCA 14; [1984] 1 NZLR 448 at 451; Polly Peck at 1020-1021 and 1032; Gumina v Williams (No 2) [1990] 3 WAR 351 at 354; Wallis and Ors v Wallis [2001] WASC 134 at [11]; Reynolds v Nationwide News Pty Ltd and Ors [2001] WASC 90 at [50] and Sian Lloyd v Express Newspapers Plc [1997] EWCA Civ 1319 at [12] - [15]; but bearing in mind that certain statements in Polly Peck, Gumina and Sian Lloyd have been overtaken by more recent Australian authority concerning the outer limits of a Polly Peck defence.

[3] Relying on David Syme Co Ltd and Anor v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667, cited with approval in Reynolds (supra) at [36]-[42] and [50], Wallis, supra, at [11]-[16] and Jackson & Ors v ACP Publishing Pty Ltd [2000] WASC 121 at [16] and [23]-[35].]

[4] He cited in that connection Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62; General Steel Industries Inc v Commissioners for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Attorney-General for Duchy of Lancaster v London and Northwestern Railway Co [1892] 3 Ch 274; Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at 92 and Wall v The Bank of Victoria Ltd (1890) 18 VLR 2.

[5] Per Ormiston JA at [21], [22] and [24]; Charles JA at [46], [52] - [54] and [60] - [61].

[6] At [68]. See also Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [8] per Brennan CJ and McHugh J, and, doubtfully, at [56] per Gaudron and Gummow JJ.

[10] Supra, at [6], [12], [13] and [16] per Bingham MR.

[11] [2001] WASC 116 at [46] per Hasluck J.

[12] [1998] 3 VR 740 at 745 per Hedigan J.

[21] Polly Peck was cited to the court in Control Risks. But it was not mentioned in the judgment of Nicholls LJ.

[27] The significance of which was discussed by his Honour at 744 line 42-745 line 6.

[29] See at 744 lines 46-48 and 746 lines 38-41.

[37] That is said by Gatley on Libel and Slander, 9th Ed, to be the better view - see footnote 4 to paragraph 122; see also Gillooly, The Law of Defamation in Australia and New Zealand, p. 124.

[38] That is, subject to the right of the tribunal of fact to find a defamatory meaning which is a permissible variation of the pleaded meaning(s).

[39] The relevant principle, and its limitations, are described in the judgment of Hedigan J in Gutnick v Dow Jones and Company Inc [2001] VSC 308 at [88]- [97].

[45] As to which see Templeton v Jones, supra, at 451 per Cooke J.

[46] [1994] HCA 45; (1994) 182 CLR 211 at 260-264 per McHugh J. His Honour dissented in the result, but his exposition of principle stands otherwise.

[53] [2000] NSWLR 937 at [14]-[34].

[55] Mr Sher submitted that this was plainly incorrect.

English Defamation Act 1952

At a glance

Court

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Judgment (173 paragraphs)

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Legislation Cited (1)

Cases Cited (11)