Anderson v Nationwide News Pty Ltd [2002] VSC 18 | Case summary

Supreme Court of Victoria|2002-02-20|Before: Bongiorno J

Defamation - fair comment - whether defence should be struck out - relationship between comment and "sting" of libel - R 23.02 Rules of Civil Procedure.

On 10 September 2001 Ashley J disposed of a pleading summons issued by the plaintiff in this proceeding attacking the defence of the defendant filed 20 June 2001 by ordering (inter alia) that the defendant's defence of justification be struck out on the ground that the meaning of the allegedly libellous publication which he sought to justify was quite different to the various meanings alleged by the plaintiff in his statement of claim (and repeated in his amended statement of claim). Although the summons before His Honour also sought an order striking out the defendant's plea of fair comment (para 9 of its defence) His Honour declined to make the order sought, not on the basis that it might not have been appropriate to strike the defence out but rather because, at the time he was considering the matter, particulars provided by the defendant in response to a request by the plaintiff served on 3 July 2001 did not extend to identification of the substance of the alleged comment; His Honour holding that the plaintiff ought to have sought particulars of the of the comment rather than that which he did in the request to which I have referred.

Following Ashley J's judgment on 13 September 2001 the plaintiff served the defendant with a supplementary request for particulars of the fair comment defence which asked the defendant to state the substance of the comments which it said constituted fair comment in the circumstances. In response the defendant said:

"The substance of the comments was that the plaintiff was promoting and supporting a merger of BHP and Billiton on terms: (a) which did not favour BHP or its shareholders; and (b) which were not as favourable as they should have been to BHP and its shareholders."

A combination of Ashley J's judgment and the particulars provided by the defendant, which I have set out above, provoked the plaintiff to apply again, by summons dated 11 October 2001, to strike out para 9 of the defendant's now amended defence pursuant to Rule 23.02 Rules of Civil Procedure on the ground that it did not disclose a defence, and/or was frivolous and vexatious and/or may prejudice, embarrass or delay the fair trial of this proceeding. It is this summons with which I am presently concerned.

In support of his argument that this plea should be struck out Mr J. L. Sher QC for the plaintiff submitted that considerations relevant to a Polly Peck defence apply equally to the defence of fair comment. So much was expressly recognised, said Mr Sher, by O'Connor L J in a passage from Polly Peck itself quoted in full in Ashley J's judgment on the first pleading summons[1].

Mr Sher's argument proceeds to a submission that the limitations imposed by the Victorian Court of Appeal on the Polly Peck doctrine by the decision in David Syme and Co Ltd v Hore-Lacy[2] in relation to the defence of justification apply equally, by a parity of reasoning, to the defence of fair comment. It follows, says Mr Sher, that in order to rely on a defence of fair comment, the substance of the comment cannot be substantially different from the imputations alleged by the plaintiff. He relied upon the considered reasoning of Ashley, J set out at paras 65 to 84 of His Honour's judgment of 10 September 2001 on the earlier summons.

In this case the imputations alleged by the plaintiff (of which there are three) each allege a meaning of the defamatory words which conveys an allegation of an ulterior purpose or motive in the plaintiff's promotion of the BHP merger with Billiton. Comparison of those imputations with the substance of the fair comment as now alleged by the defendant in the particulars quoted above demonstrates a clear difference which, says Mr Sher, inexorably leads to the fair comment alleged not being capable of being applied as a defence to the plaintiff's pleaded imputations or to any meaning of the defamatory words which is a variant on, or not substantially different from, any of those imputations and which is no more injurious to the plaintiff or serious, in the way in which these concepts are explained in Hore-Lacy[3].

In his judgment on the earlier pleading summons in this case Ashley J considered Mr Sher's arguments[4] and concluded that they could result in a defence of fair comment being unavailable provided there was the necessary disparity between the imputations pleaded by the plaintiff and the substance of the fair comment relied upon by the defendant. His Honour referred to the High Court decision in Chakravarti v Advertiser Newspapers Ltd[5] and in particular to a passage in the joint judgment of Brennan CJ and McHugh J[6] in the following terms:-

"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."

In essence Mr Sher's submission is that the plaintiff must make his case on the pleaded imputations with only such variation as might be permitted by the application of the principles expounded in Hore-Lacey. If the defendant wishes to plead fair comment in answer to such a case then the substance of the plea must go directly to the imputations relied upon by the plaintiff or their permitted variants.

Mr D F R Beach (now of Senior Counsel) for the defendant contended that to confine the defence of fair comment as the plaintiff seeks to do in this case would be to misconstrue its true nature and width. He relied particularly on general statements of Birkett LJ in Kemsley v Foot[7] and Lord Denning in Slim v Daily Telegraph Ltd[8].

10 Kemsley was a case concerning the extent to which the defence of fair comment may depend, in some circumstances at least, upon the allegedly defamatory publication containing the comment also identifying the facts upon which the comment was made. His Lordship's statement relied upon by Mr Beach is found in the context of a general discussion of the defence. It cannot be applied without qualification to the specific circumstances of this case which involves a particular series of imputations pleaded by the plaintiff and denied by the defendant who has pleaded its own meaning of the article complained of. Kemsley stands for the proposition that it is not fatal to the defence of fair comment for the facts upon which the comment is said to be based not to be set out in the allegedly defamatory publication. Birkett LJ's statement[9] appears in his introductory comments on the topic of fair comment to emphasise the importance of that defence, not to define it or to set its limits. His Lordship's comments do not assist in the resolution of the present problem.

In Slim v Daily Telegraph Ltd no question arose as to whether the fair comment relied upon by the defendant met the plaintiff's case in the sense of answering any imputation relied upon by the plaintiff. The question was whether the letters upon which the plaintiff sued were indeed fair comment or not. Lord Denning's simple test of honesty, relied upon by the defendant here, may have been able to be applied effectively on the facts of Slim's case where the question was whether the defendant was expressing an honest opinion which happened to be defamatory in the meaning contended for by the plaintiff.

In Slim Lord Denning held that whether the words there sued upon carried imputations of dishonesty, insincerity and hypocrisy or merely inconsistency and a want of candour (as he considered they did) they were fair comment on a matter of public interest. No question arose as to the relationship between that which constituted the allegedly fair comment and the imputations which the plaintiff alleged it conveyed. If there was a fair comment it clearly met the sting of the alleged libel whatever it was in that case. It is, accordingly, not necessary to consider Mr Sher's submission to the effect that Lord Denning was wrong. The passage relied upon by Mr Beach simply does not advance his case as, here, the substance of the comment relied upon by the defendant as being "fair" does not meet the sting of any of the imputations pleaded by the plaintiff.

The central thrust of the plaintiff's case in this case is that the article was defamatory of him because it accused him of promoting, supporting and or/contriving the merger of BHP and Biliton Plc and or breaching his duties to BHP and its shareholders as Chief Executive Officer of the company by supporting the merger for an ulterior purpose. That purpose was said to be that the merger would enable him and his wife to return to live in the United States earlier than would otherwise have been the case and/or would have enabled him to appease his wife by returning to live in the United States. On the assumption that the plaintiff succeeds in establishing one or more of these imputations or a permitted variant of them in accordance with the principles laid down in Hore-Lacy it could not be an answer to say that the article constituted no more than the expression of an honest belief expressed in a comment the substance of which was that the plaintiff did no more than promote and support the merger on terms which didn't favour BHP or its shareholders or were not as favourable as they should have been to BHP and its shareholders.

The "sting" of the libel alleged by the plaintiff is the allegation that he had an ulterior motive; the comment, even if fair, goes only to a lack of business judgment. It does not meet the libel. On the other hand if the article means no more than the defendant contends then the defendant will succeed in the action, not because of any fair comment defence, but because the plaintiff will not have established the libel of which he complains.

Paragraph 9 of the amended defence of the defendant filed 26 September 2001 as particularised in further and better particulars filed 3 October 2001 does not disclose a defence to the plaintiff's claim within the meaning of Rule 23.02(a) Rules of Civil Procedure. It should be struck out.

The orders I will make on the plaintiff's summons filed 11 October 2001 are as follows:-

1. that para 9 of the amended defence of the defendant be struck out; and 2. that the defendant pay the plaintiff's costs (including any reserved costs) of this application to be taxed.

[1] [2001] VSC 335 para 34 quoting [1986] 1 QB 1000 at 1032

[5] Chakravarti at Advertiser Newspapers Ltd (1998) 193 CLR 519

Anderson v Nationwide News Pty Ltd

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Judgment (29 paragraphs)

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Cases Cited (2)