BASS v TCN CHANNEL NINE PTY LTD

LEGISLATION CITED: Defamation Act 1974 Defamation (Amendment) Act 1994

Ainsworth v Burden [2005] NSWCA 174Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251 Bass v TCN Channel Nine Pty Ltd, Court of Appeal, 13 December 2005, unreported Bailey v FCT (1977) 136 CLR 214 Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports s80 691 Commercial Bank of Australia Ltd v Thomson (1964) 81 WN (NSW) 553 Dare v Pulham (1982) 148 CLR 658Dingle v Associated Newspapers Ltd [1964] AC 371 Emmerton v University of Sydney [1970] 2 NSWR 633 Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Howden v Truth & Sportsman Ltd (1937) 56 CLR 416 CASES CITED: Howden v Truth & Sportsman Ltd (No 2) 38 SR (NSW) 287 Kelly v Kelly (1950) 50 SR (NSW) 261 John Fairfax Publishing Pty Ltd v Zunter [2006] NSWCA 227 Leotta v Public Transport Commission of NSW (1976) 9 ALR 437 Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 Philliponi v Leithead (1959) 59 SR (NSW) 353 Rex v Associated Northern Collieries (1910) 11 CLR 738 Rigby v Associated Newspapers Ltd (No 2) [1969] 1 NSWR 729 Singleton v Ffrench (1986) 5 NSWLR 425 Speidel v Plato Films Ltd [1961] AC 1090 Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1

PARTIES: Robin BASS TCN CHANNEL NINE PTY LTD

COUNSEL: Appellant: T Molomby SC/ R K Rasmussen Respondent: B McClintoch SC/ M Richardson

SOLICITORS: Appellant: Kalantzis Lawyers (Surry Hills) Respondent: Gilbert & Tobin (Sydney)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40067/2005

HANDLEY JA BASTEN JA HUNT AJA

Wednesday 13 December 2006 BASS v TCN CHANNEL NINE PTY LTD [No 2] Headnote The plaintiff commenced a defamation action in 1990 based on the defendant's 60 Minutes programme dealing with union activity in the building and construction industry. He appeared in the programme and he alleged that the Building Workers' Industrial Union had imposed a black ban as part of a personal vendetta against him by one of its organisers (identified in the evidence, but not in the matter complained of, as a man named Higgins). The NSW Secretary of the BWIU (Mr McDonald) responded to this allegation in a way which, the jury in the first trial found, conveyed to imputations: 1. The plaintiff was a shonky operator . 2. The plaintiff could not be relied upon to pay his employees money due to them.

The jury in the first trial found that the first imputation was true, but that the second imputation was untrue, and it rejected all of the other factual defences pleaded by the defendant. The trial judge upheld the defence of qualified privilege, held that there was no evidence of malice and entered judgment for the defendant. The plaintiff successfully appealed against the trial judge's ruling that there was no evidence of malice. The Court of Appeal ordered a new trial limited to the issues of malice and, if malice were found, the issue of damages for the publication of that imputation.

At the second trial, the judge allowed counsel for the defendant to introduce into evidence the finding by the jury at the first trial that the first imputation that the plaintiff was a shonky operator was true. The plaintiff appealed against that ruling.

Held The evidence was relevant to the plaintiff's credit, and was admissible because the plaintiff was bound by that finding and could not deny that he was a shonky operator, an issue relevant to his credit.

Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630; O'Toole v Charles David Pty Ltd (1990) 171 CLR 232; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 followed.

The finding was also made relevant by the way the plaintiff's case was conducted, which put the falsity of that imputation to its forefront, and the defendant was entitled to meet that claim by demonstrating that the imputation was true:

Howden v Truth & Sportsman Ltd (1937) 56 CLR 416; Rigby v Associated Newspapers Ltd (No 2) [1969] 1 NSWR 729: Ainsworth v Burden [2005] NSWCA 174 followed.

After the evidence in the new trial was closed, and after counsel for the defendant had addressed of the jury, counsel for the plaintiff sought to rely on the defendant's failure to reveal to its viewers that the source of Mr McDonald's allegations was Mr Higgins who, it was open to the jury to find on the evidence, had been malicious. He suggested to the jury that the source had been "concealed" by the defendant from its viewers, who had thereby been "deceived". Counsel for the defendant submitted that that the allegation was irrelevant to the issue of malice. The trial judge directed the jury that they could not consider the matter on the issue of malice, but later qualified that direction by permitting the jury to consider the matter as a counter to the defendant's submission that the programme was a model of balanced journalism.

The matter raised by the defendant had not been identified in the plaintiff's particulars of malice, and no application to add it had been made.

Held The matter was of some relevance to the issue of improper motive as a separate matter (but hardly of a substantial nature) if the jury accepted the description of it as the defendant's deception of the viewer. That allegation was of a nature which should necessarily have been identified specifically in the plaintiff's particulars of malice, as it raised an issue as to the way in which the programme had been edited, requiring the defendant to be ready with evidence from the person within its organisation responsible for that task. The editor was no longer employed by the defendant, the defendant had no knowledge of his availability for a conference and it was unlikely that he would have any memory of why he edited the programme in any particular way when the issue was raised for the first time fourteen years after the event. There was substantial prejudice to the defendant. The only appropriate course open to the judge in the circumstances would have been to exercise his discretion against allowing the plaintiff to raise the issue at that stage because of the prejudice to the defendant identified by its counsel. The judge's erroneous direction therefore did not affect the proper outcome of the proceedings.

The obligation of a party to provide particulars considered. Rex v Associated Northern Collieries (1910) 11 CLR 738; Kelly v Kelly (1950) 50 SR (NSW) 261; Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228; Mummery v Irvings Pty Ltd (1956) 96 CLR 99; Philliponi v Leithead (1959) 59 SR (NSW) 353; Commercial Bank of Australia Ltd v Thomson (1964) 81 WN (NSW) 553; Emmerton v University of Sydney [1970] 2 NSWR 633; Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1; Leotta v Public Transport Commission of NSW (1976) 9 ALR 437; Bailey v FCT (1977) 136 CLR 214; Dare v Pulham (1982) 148 CLR 658; Ainsworth v Burden [2005] NSWCA 174 referred to.

The plaintiff's appeal is dismissed with costs. Mr T Molomby SC & Mr RK Rasmussen, instructed by Kalantzis Lawyers (Surry Hills), for the appellant Mr B McClintock SC & Mr M Richardson, instructed by Gilbert & Tobin (Sydney), for the respondent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40067/2005

HANDLEY JA BASTEN JA HUNT AJA

Wednesday 13 December 2006 BASS v TCN CHANNEL NINE PTY LTD [No 2] Judgment 1 HANDLEY JA: I agree with Hunt AJA. 2 BASTEN JA: The appeal should be dismissed with costs for the reasons given by Hunt AJA. 3 HUNT AJA: The appellant, Robin Bass, was the plaintiff in an action for defamation brought against the respondent, TCN Channel Nine Pty Ltd, in which he claimed damages for the publication of a segment in the 60 Minutes programme telecast by the defendant throughout Australia on 22 July 1990. 4 The plaintiff - a former bricklaying subcontractor who had at one stage employed 185 men but who was then out of business - claimed in the programme that this situation resulted from a black ban imposed by the Building Workers' Industrial Union (BWIU) as part of a personal vendetta against him by one of its organisers (identified in the evidence, but not in the matter complained of, as one John Higgins). During the programme, the plaintiff's allegations were put to the NSW Secretary of the BWIU, Don McDonald, by the journalist presenting the segment, Mike Munro. Mr McDonald's response, by which he sought to justify the actions of the BWIU, included these two statements: [The plaintiff] was a shonky operator who owed workers money and he got into a dispute with the Union for that particular reason. and: We make no apologies to any employer that does not meet their legal obligations to our members. 5 The plaintiff pleaded a number of imputations, of which only two remain relevant: 1. The plaintiff was a shonky operator. 2. The plaintiff could not be relied upon to pay his employees money due to them. He did not identify in the first of those imputations the particular interpretation of the adjective "shonky" for which he contended, as he should have: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [118]-[132]). It could hardly be suggested that the word had or has any longstanding settled meaning. The noun "shonk" was originally understood as an offensive racial slur but, by the late 19th Century, the adjective "shonky" came to be interpreted as mean or money-grubbing: A Dictionary of Slang and Unconventional English , Eric Partridge (5th Edn, 1961), which is said to have related to words and expressions in use before the first World War: The Penguin Dictionary of Historical Slang, Partridge (1972), "Note on this Edition". In the seventh edition of Partridge's Dictionary of Slang and Unconventional English (1970), the definition of the adjective "shonky" remained constant. A Concise Dictionary of Slang and Unconventional English (1988), based on the eighth edition of Partridge's Dictionary (1984), defined the adjective "shonky" as a nickname for a stingy or miserly person. 6 Over the years the meaning has widened. The first edition of the Macquarie Dictionary (1981) defined the adjective "shonky" as something or someone of dubious integrity or honesty. The Dictionary of Australian Colloquialisms, Wilkes (2nd Edn, 1985), defined the adjective "shonky" as deceptive, unreliable, unsound; it gave as illustrations its use in Australian newspapers in 1978 describing the activities of the disgraced former US President, Richard ("Tricky Dicky") Nixon, and in 1981 in relation to dealers in real estate. The Australian National Dictionary, published by the Oxford University Press in 1988, defined the adjective "shonky" as unreliable, unsound, dishonest or out of sorts. The Macquarie Dictionary of New Words (1990) defined the noun "shonk" as a dishonest person. The Dinkum Dictionary, Johansen (Revised Edn, 1991), defined the adjective "shonky" as underhand, illegal, illicit, crooked. The current (2005) edition of the Macquarie Dictionary defines the noun "shonk" as a person of dubious integrity or honesty, a dishonest person. 7 It is safe, therefore, to assume that the allegation made by Mr McDonald against the plaintiff could well have been understood in 1990 as one of dishonesty. The plaintiff himself said in cross-examination that it meant that he was a dishonest person or a liar. Counsel for the defendant told the jury in his final address "Shonky means he's dishonest", without any objection. This is clearly how the trial had proceeded. 8 The proceedings have had an unfortunate history. They were commenced in 1990, but the plaintiff said in evidence that his solicitor did nothing to bring the proceedings forward for some years, and he could not himself afford to pursue the matter. The solicitor had named two defendants in the original Statement of Claim: the appellant and a Mr McDonald, but not the Mr McDonald who had appeared in the programme. The error was not discovered until the limitation period had expired, and an attempt to add the correct Mr McDonald failed. 9 As the proceedings had been commenced before the change in the functions of the judge and jury in defamation litigation - effected by s 7A of the Defamation Act 1974 inserted by the Defamation (Amendment) Act 1994, s 3 (Schedules 1(2), 1(3)) - the whole of the action was heard by both a judge and a jury. At the first trial (before Sperling J and a jury), the jury: (1) found that the matter complained of conveyed the two imputations already quoted (that the plaintiff was a shonky operator and that the plaintiff could not be relied upon to pay his employees money due to them); that the first imputation was true, and that the second imputation was not true; (2) rejected the defences pleaded to the second imputation of contextual truth (based, in part, on the truth of the first imputation) and of unlikelihood of harm ( Defamation Act , ss 16 and 13 respectively); and (3) awarded the plaintiff $10,000 in damages. 10 After the jury's verdict had been given, the judge upheld the defence of qualified privilege to the second imputation on the basis that the defendant had a privilege at common law, derived from the BWIU's privilege to reply to the plaintiff's attack upon it in the same forum in which the attack had been made: Loveday v Sun Newspapers Ltd (1938) 59 CLR 503 at 519. He entered judgment for the defendant. 11 The judge had earlier excluded from the jury's consideration the plaintiff's reply of malice to that defence, that the defendant knew that what Mr McDonald said was untrue, on the basis that such knowledge was no answer in law where the defendant merely provided a neutral forum for the opposing views of the plaintiff and the BWIU to be expressed. The plaintiff appealed (by leave) against the finding of common law qualified privilege and the exclusion of his reply to that defence. 12 This Court unanimously rejected the plaintiff's appeal against the judge's decision on qualified privilege but, by majority, upheld his appeal against the judge's exclusion of his reply of malice: Bass v TCN Channel Nine Pty Ltd (2003) 60 NSWLR 251. It set aside the judgment entered for the defendant, and (at [149]) it ordered a new trial limited to the issue of malice in relation to the publication of the second imputation and, if malice were found, to the issue of the damages payable by the defendant for the publication of that imputation. 13 The second trial proceeded before Patten AJ and a jury. The evidence limited to those two issues was completed on the third day of the trial when a lengthy debate began (in the absence of the jury) in relation to the issues to go to the jury. On the morning of the fourth day, the jury was discharged on the defendant's application, following the disclosure by a member of the jury of the prejudicial views held by that juror concerning the way in which television current affairs programmes generally were conducted and of the difficulties that particular juror had in repressing that prejudice. 14 What was effectively the third trial commenced the following week, before the same judge and a new jury. Most of the rulings given during the second trial were applied in the third trial without further debate, but a substantial issue relevant to the present appeal arose out of the final address to the jury by senior counsel for the plaintiff to which reference is made later. It related to the issue of malice, the only issue concerning liability the jury had to determine. 15 The jury was asked to answer the question: Has the plaintiff proved that the defendant's dominant motive in publishing what was said by Mr McDonald concerning the plaintiff was an improper motive? The jury answered the question in the negative. The judge entered judgment for the defendant. The jury had been directed to assess damages only if they answered that question in the affirmative. Leave to appeal was granted by this Court (differently constituted), but limited to the two grounds of appeal dealt with in this judgment: Bass v TCN Channel Nine Pty Ltd , 13 December 2005, unreported. I turn now to deal with those two grounds of appeal.

Admissibility of facts that the jury in first trial found that the plaintiff was a shonky operator and that this imputation was true 16 The plaintiff, in his evidence in chief in the trial from which this appeal is brought, described the impact upon him of what he saw on television as being: Shocked, horrified, especially for the comments of what Mr Don McDonald had said that I was a shonk, couldn't be relied to pay wages - just an out and out lie. He said that he had an apprehension about what people were going to think about him as a result of what had been said. He gave evidence of what people had said to him about the programme, including one person who said to him: Bassy, they called you a shonk on national TV, mate. Didn't - that's not you. 17 In cross-examination, when it was suggested to the plaintiff that he wanted revenge against Mr McDonald for what he had said on television, he replied: No, it was not revenge. It was just an outright lie that he could destroy somebody with the lie of not being able to pay workers and being a shonk. The plaintiff accepted that the shonk imputation (as I will call it for convenience) conveyed that he was a dishonest person, he agreed that the jury in the first trial had found that he was in fact a shonky operator, and he also agreed that he was not entitled to any compensation for that imputation. He denied that he was a shonky operator. 18 The plaintiff had given evidence to the same effect in the uncompleted trial the previous week (to which I will refer as the "earlier" trial). The evidence as to what had been said to him following the telecast (including the reference to his being a shonk) was correctly said to have been justified as being relevant to damages in accordance with Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 647, 657, 665. An objection was taken by the plaintiff in the earlier trial to the cross-examination eliciting the jury's finding at the first trial that the imputation that he was a shonky operator was true, and that objection was overruled. It was agreed in this appeal that the rulings made at the earlier trial applied to the last trial without objection being taken again. 19 The plaintiff correctly says that the shonk imputation formed a separate cause of action: Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 190; Singleton v Ffrench (1986) 5 NSWLR 425 at 428; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 162. He submits on appeal that, as that imputation had been disposed of at the first trial, the imputation pleaded and the jury's findings on it were irrelevant to the new trial based only on the imputation that he could not be relied upon to pay his employees money due to them. In my opinion, that submission is far too broadly stated where the two imputations in question have been pleaded by the plaintiff in the one action as arising out of the same publication. 20 The jury in a trial where both imputations are in issue could not be directed that, if they found the shonk imputation to have been conveyed but true, their findings on that imputation were irrelevant to the factual issues arising in relation to the other imputation. In assessing any damages awarded for the publication of the other imputation where they were satisfied that the shonk imputation was true, the jury would have to be directed - by the application of the principles stated in Dingle v Associated Newspapers Ltd [1964] AC 371 at 395, 405-406, 410-412, 414-415 - that the sum awarded for the publication of the other imputation must represent the injury caused solely by the publication of that imputation, isolating that injury from the injury caused by the publication of the shonk imputation. Where appropriate, they could also be directed that they may take their finding that the plaintiff was in fact a shonk into account in determining his credit in relation to factual issues arising relating to other imputation. 21 As the plaintiff pleaded the shonk imputation and lost because it was true, it seems to me that the situation should not be any different in a subsequent new trial restricted to the other imputation, and that it would be substantially unfair to the defendant if it were different. There is no doubt that the jury in the subsequent trial would have to be directed - by analogy with the principles stated in Dingle - in precisely the same way: that any damages awarded for the publication of the other imputation must represent the injury caused solely by the publication of that imputation, isolating that injury from the injury caused by the publication of the shonk imputation. It would be appropriate for the judge to explain to the jury that the reason for excluding the injury caused by the shonk imputation was that a defence raised to it had been upheld in a previous trial. Once the relevant evidence was before the jury, it would also be appropriate for the judge, in order to avoid any speculation by the jury, to identify the nature of the defence which had succeeded. That imputation and the jury's verdict on it in the first trial therefore remained very relevant to the jury's task in the present case. 22 The finding that the plaintiff was a shonky operator was also relevant to the plaintiff's credit. Sections 102-103 of the Evidence Act 1995 render inadmissible evidence which is relevant only to a witness's credibility unless it is adduced in cross-examination of that witness. There is no doubt that the defendant was entitled to cross-examine the plaintiff to demonstrate that he was a shonk (that is, dishonest) as being relevant to his credit in relation to factual issues arising concerning other relevant issues - such as (a) the existence of a vendetta by the union organiser Higgins against him, and (b) his denials that payments made to one George Freeman were to have Higgins assaulted and that other payments made to a union organiser named Brodie were bribes to assist the plaintiff to re-enter the building industry. That evidence was of substantial importance in the trial from which this appeal is brought. 23 The only issue remaining in relation to this ground of appeal, therefore, is whether the defendant was entitled to attack the plaintiff's credit by obtaining his agreement that the jury in the first trial had found that he was in fact a shonk. The plaintiff has argued that such an approach was in breach of s 91 of the Evidence Act, which provides that evidence of a finding of fact in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. This was not an argument raised at the trial. Quite apart from the fact that the finding was in the same proceedings, not in different proceedings, s 93 provides that s 91 does not affect the law relating to either res judicata or issue estoppel. 24 In the present case, it is clear that, insofar as the facts found by the jury in the first trial were relevant to the issues in the new trial, the parties were bound by those findings by way of issue estoppel: Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630 at 642; O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 245, 260, 298; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [57]. If counsel for the defendant had first suggested to the plaintiff in cross-examination that he was a shonky operator (as a basis for a subsequent submission that his evidence relevant to the factual issues already identified in par [22] supra should not be believed), and the plaintiff had denied that he was, the defendant was entitled to establish the jury's verdict in the first trial that the plaintiff was a shonky operator in order to establish the issue estoppel in relation to that fact. 25 It may be accepted that the cross-examination in the trial from which this appeal is brought did not strictly follow that order, in that it attempted to establish the issue estoppel before suggesting that the plaintiff was a shonky operator, but that error produced no substantial wrong or miscarriage which could warrant a yet further new trial in which the same evidence would inevitably be admitted, albeit in a different order: SCR Pt 51 r 23. 26 So far, I have approached the admissibility of the truth of the shonk imputation on the basis that it was relevant only to the plaintiff's credit. I am, however, satisfied that the way in which the plaintiff's case was conducted rendered the truth of that imputation admissible in any event. The shonk imputation was certainly not regarded as irrelevant by the plaintiff; it was very much to the forefront of his case in the new trial. His evidence of his reaction to the programme when he first saw it gave particular and repeated emphasis to the shonk imputation, and his evidence of what had been said to him about the programme, led on the issue of damages, included statements made to him concerning that imputation. The case he sought to make made the shonk imputation relevant. 27 Once the falsity of the shonk imputation was asserted in those circumstances, the defendant became entitled to establish its truth, whatever the state of the pleadings. The law was recently restated succinctly in Ainsworth v Burden [2005] NSWCA 174 (at [89]): A plaintiff is … always permitted to nail the matter complained of as a lie: Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 205; Rigby v Associated Newspapers Ltd (No 2) [1969] 1 NSWR 729 at 743; Defamation Act , s 47. Such an assertion of falsity is not a claim for damages; it is, in effect, a remedy which the law of defamation provides, originally thought (on one version at least) to have been provided in order to discourage the practice of duelling or other breaches of the peace. If the plaintiff does assert the falsity of what was published, the defendant is entitled to meet that claim by demonstrating that what was published is true: Howden v Truth & Sportsman Ltd (1937) 56 CLR 416 at 432-433; Rigby v Associated Newspapers Ltd (No 2) at 739. 28 I should also record that the truth of the shonk imputation was pleaded by the defendant as a matter in mitigation of any damages awarded for the publication of the imputation at issue in the new trial, which if valid would also have made the truth of the shonk imputation relevant in that trial. However, such an issue was not left to the jury and no complaint was made in relation to its omission. It is therefore unnecessary in this appeal to traverse the decision of the House of Lords in Speidel v Plato Films Ltd [1961] AC 1090, which upheld previous decisions in the courts that, although general evidence of reputation is admissible, evidence of particular facts tending to show the "character and disposition" of the plaintiff is not admissible on the issue of damages. It would nevertheless seem that that decision would have prevented the issue of particular facts arising at the new trial in the present case: see also Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports s80-691 at 68,952-955, but compare Howden v Truth & Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287 at 290; John Fairfax Publishing Pty Ltd v Zunter [2006] NSWCA 227 at [43] et seq. 29 I would accordingly reject this first ground of appeal, but add the observation that this appeal has illustrated some of the substantial difficulties which may arise when limited new trials are ordered in actions in which many of the issues interlock, such as defamation.

Direction to jury that they could not consider on the issue of malice the fact that the programme did not reveal to the viewer that the source of the BWIU's response was a malicious one 30 The fundamental issue on liability for the jury to determine was whether the motive with which the defendant published the material attacking the plaintiff was an improper one. This Court's judgment allowing the plaintiff's appeal from the first trial identified the plaintiff's case on this issue as relying on either or both of two matters - (i) the defendant knew that the BWIU was motivated by malice towards the plaintiff, and (ii) the defendant itself believed that what it published about the plaintiff was false (Bass v TCN Channel Nine Pty Ltd at [90], [144], 149, [171]). 31 An application by the plaintiff to file a "Second Further Amended Reply" was heard by Nicholas J (sitting as the Defamation List Judge) shortly before the new trial was to begin. The plaintiff had sought to add a number of specific matters from which the defendant's improper motive was to be inferred beyond those identified in this Court's judgment, although the specific matter now raised was not included in those matters. Nicholas J allowed the plaintiff to formulate his allegation of malice only so as to conform with the way it was dealt with by this Court in the earlier appeal - adopting both the terminology of the allegation of malice formulated by this Court and the two matters to which reference has already been made in the previous paragraph. There was no challenge to that decision, and detailed reasons were not given. 32 The plaintiff's case on malice was therefore restricted to the allegation that the defendant's dominant purpose in publishing the imputations against the plaintive was improper, and the bases for that inference of impropriety were limited in the Summing-up to: (a) the defendant's knowledge that (i) the BWIU was motivated by malice towards the plaintiff, in particular "through the attitude and activities directed towards the plaintiff by its employee John Higgins" who - the plaintiff alleged - had conducted the vendetta against him, and (ii) the substantial "source" of what Mr McDonald said about the plaintiff in the matter complained of was Mr Higgins, and (b) the defendant's belief that what it had published about the plaintiff was false. In fact, Mr McDonald told Mr Munro when interviewed that he had made his own investigations into the allegations that the plaintiff failed to pay into the industry redundancy scheme and "rorted" the workers' compensation scheme. The best that could be said was that Mr Higgins was "a" source of Mr McDonald's allegations against the plaintiff. 33 Senior counsel for the defendant, who addressed first, justified the relevant segment of the 60 Minutes programme as a fair and balanced one on a number of occasions during his address - saying that that it was "a very, very good example of good journalism, fair journalism", "a balanced and fair programme putting both sides of the story on a difficult issue", and that the programme was "fair and balanced and puts both sides very fairly". 34 Senior counsel for the plaintiff challenged this argument in his final address. Expressly accepting that the programme "certainly [had] the appearance of responsible journalism", he argued that the defendant was nevertheless malicious because it had failed to tell the public that the source of what Mr McDonald had said was the John Higgins who had conducted the vendetta against the plaintiff. This, it was said, destroyed the appearance of responsible journalism on the part of the defendant and of Mr McDonald as "an independent, authoritative union figure". Counsel suggested to the jury that the source had been "concealed" by the defendant from its viewers, who had thereby been "deceived". 35 Complaint was made by the defendant at the conclusion of that address. A direction was sought that the jury disregard the arguments put. It was submitted by the defendant that the argument was "essentially irrelevant" to the issue of malice. Counsel for the plaintiff sought to justify raising the issue as one open to him in order to meet the defendant's argument as to the fairness and balance of its programme. He conceded that the defendant's concealment of the malicious source of Mr McDonald's statements could have been included as a particular of malice in the original Reply, but said that he had been denied the opportunity to add it subsequently by the decisions of both this Court and Nicholas J. Such an interpretation of this Court's orders is incorrect:: cf Harvey v John Fairfax Publications Pty Ltd at [56]-[62]. He claimed he was nevertheless entitled to raise it at that late stage because of the way counsel for the defendant had addressed the jury. 36 The judge gave no ruling but, during the course of his Summing-up, he directed the jury as follows: [Counsel for the plaintiff, Mr Molomby] made a reference to the fact that the defendant knew that the plaintiff's allegations centred on the doings of Mr Higgins, yet there was no mention of Mr Higgins in what went to air and, in relation to that, I must give you the direction that that is not to be regarded. That is, the absence in the programme of any reference to Mr Higgins is not to be regarded by you as any evidence of improper motive against the defendant. […] [Mr Molomby] referred again to the fact that there was no mention in the broadcast of Mr Higgins, but again I repeat my direction that you are not to regard the absence of Mr Higgins from the broadcast as evidence of malice against the defendant.

Mr Molomby put to you that Mr McDonald may have been a perfectly innocent mouthpiece and submitted to you correctly that, if Mr Higgins had the improper purpose and the defendant knew that Mr Higgins had an improper purpose or was acting maliciously, and the defendant knew that, that would be sufficient. 37 At the conclusion of the Summing-up, but before the jury were formally directed to retire to consider their verdict, counsel for the plaintiff sought to have the contrary direction given - that the absence of any reference to Mr Higgins as the source of the allegations against the plaintiff could be regarded as to evidence of malice. He sought, alternatively, a direction that the jury could take such absence into account as answering the proposition put by counsel for the defendant that the story was a model of balanced journalism. 38 After considerable debate between counsel, the jury were recalled, and the judge gave this direction in relation to the first question, as to whether the plaintiff had proved that the defendant's dominant motive in publishing what was said by Mr McDonald concerning the plaintiff was an improper motive: In the brief recap that I gave you of the matters you need to decide in relation to the first question, I told you that, in order to answer the first question "yes", you must be satisfied, on the balance of probabilities, that the defendant believed, or knew, that the material it published emanating from Mr McDonald was false. I then perhaps did not go far enough in recapping the alternative basis which, in accordance with the written direction that you were given, was this - and was perhaps what prompted your question earlier today: The plaintiff, alternatively, can show that the defendant knew that the Union was motivated by malice towards the plaintiff through the attitude and activities of Mr Higgins, and then broadcast material which it knew was actuated by that malice.

The other matter [concerning that direction] about which I wanted to say something to you is - I said that you could not use the absence of Mr Higgins from the broadcast as evidence of malice or improper motive by the defendant. You can use it to counter Mr McClintock's submission that the programme was a model of balanced journalism. Whether you so regard it as contrary or not is a matter for you, and whether you regard that as a significant matter or not is again a matter for you. But you are restricted to use it in that sense; it is not to be regarded as evidence of malice by the defendant. 39 The plaintiff has maintained on appeal his objection to the first direction - that the absence of any reference in the matter complained of to the fact that "the" malicious source of the allegations made by Mr. McDonald was the malicious Mr Higgins could not be evidence of malice or improper motive - and the defendant has maintained its submission that that matter was "essentially irrelevant" to a charge of malice or improper motive. 40 I do not accept the defendant's submission that the failure to disclose that either "the" or "a substantial" source of the allegations was malicious is essentially irrelevant to the issue of improper motive. In my opinion, such a failure would have had some relevance to the issue of improper motive as a separate matter (but hardly of a substantial nature) if the jury accepted the description of the failure as the defendant's own deception of the viewer (as asserted by counsel for the plaintiff). That could be regarded as tending, together with the other material already identified, to establish that the defendant's purpose in publishing the matter complained of was improper. 41 It is important, however, to emphasise that, as a matter going to demonstrate an improper purpose, the deception of the viewer is quite separate from the other two matters identified in the particulars as they presently stand. It provides nothing by way of proof of either of those two matters. It is of a nature which should necessarily have been identified specifically in the plaintiff's particulars of malice, as it raises an issue as to the way in which the programme had been edited, requiring the defendant to be ready with evidence from the person within the defendant's organisation responsible for that task. 42 Particulars fulfil an important function in the conduct of litigation. As Gibbs J pointed out in Bailey v FCT (1977) 136 CLR 214 at 219: They define the issues to be tried and enable the parties to know what evidence it will be necessary to have available and to avoid taking up time with questions that are not in dispute. On the one hand they prevent the injustice that may occur when a party is taken by surprise; on the other hand they save expense by keeping the conduct of the case within due bounds. See also Commercial Bank of Australia Ltd v Thomson (1964) 81 WN (NSW) 553 at 557-558 (FC). The purpose of particulars is to concentrate and define the issues of fact and to prevent surprise and consequent delay: Bailey v FCT at 221 (Jacobs J). The degree of disclosure of the case of the party required to give particulars was described by Isaacs J in Rex v Associated Northern Collieries (1910) 11 CLR 738 in the oft quoted passage at 740-741: I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms "surprise", but he is not entitled to be told the mode by which the case is to be proved against him. 43 The obligation to give particulars does not, of course, require a party to disclose the evidence by which he proposes to prove his case. The particulars must nevertheless make the plaintiff's case plain so that each side may know what are the issues of fact to be investigated at the hearing: Kelly v Kelly (1950) 50 SR (NSW) 261 at 265 (Full Court). It is no answer to say that all the relevant facts are within the knowledge of party seeking particulars, for that party is entitled to have identified the specific case the plaintiff proposes to make against him: Bailey v FCT at 220, 221 (Mason J); see also Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 at 229 (AR Taylor J); Philliponi v Leithead (1959) 59 SR (NSW) 353 at 358-359 (Full Court); Dare v Pulham (1982) 148 CLR 658 at 664. This is the preferred approach to be taken: Emmerton v University of Sydney [1970] 2 NSWR 633 at 635 (CA). 44 The particulars may, of course, be departed from if the interests of justice require such a course: Mummery v Irvings Pty Ltd (1956) 96 CLR 99 at 110. Where a party seeks to lead evidence in support of his pleaded case which is outside the particulars which have been supplied of that case, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning: Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1 (Blackburn J) at 6. It is within the discretion of the trial judge whether to permit the evidence (subject in some cases to an amendment of the particulars, but in any event on terms such as to meet any prejudice to the other party) or to hold the party whose particulars were deficient to the issues of fact to be investigated as limited by those particulars: Mummery v Irvings Pty Ltd at 110; Leotta v Public Transport Commission of NSW (1976) 9 ALR 437 at 446 (High Court); Ainsworth v Burden (CA) at [52]. 45 I do not accept the plaintiff's argument that he was denied the opportunity to add such a matter to his Reply by this Court's decision in the earlier appeal and by Nicholas J. The matter was never argued before this Court in the previous appeal, and it was never submitted to Nicholas J that it arose as a matter relevant to the Reply. In truth, as counsel for the plaintiff conceded, it occurred to him only when his opponent claimed in his final address that its programme was a fair and balanced one. His argument in this appeal was that the matter arose in any event as a result of that claim being made. His concession that it could have been pleaded in the original Reply demonstrates that such an argument cannot succeed. 46 The whole nature of the defence of common law qualified privilege discussed in Loveday v Sun Newspapers Ltd is that the defendant has provided both the attacker and the person attacked the opportunity to have his say in the same forum - in this case, in the very same programme. A defendant relying on such a defence is not only entitled but virtually required to put forward an argument that its fundamental purpose was to publish material which fairly and in a balanced way put both sides of the dispute between the parties to that dispute, in order to persuade the jury not to accept the plaintiff's case that its purpose was other than to enable the BWIU to answer the attack on it by the plaintiff, and this is so whatever the basis of the plaintiff's case on malice may be. The plaintiff was expressly forewarned that an argument of such a type would be put to the jury by the particulars the defendant gave of this defence: The publication of the matter complained of, and the mode, manner and extent of the publication were reasonable in the circumstances. 47 A plaintiff who seeks to add a matter of vital importance to the way his case has been pleaded after the evidence has finished and after both parties have addressed the jury bears an enormous burden of demonstrating that the defendant will not be unfairly prejudiced thereby. The circumstances would have to be quite extraordinary. Counsel for the defendant informed the judge that the person he assumed was responsible for editing the programme had left the defendant's employ many years ago and was with a rival television network. He had no knowledge of this person's availability (for a conference in order to determine how to deal with the matter), and he suggested that it was probable that that person would have no memory of why he edited the programme in any particular way when the issue was raised for the first time fourteen years after the event. This was clearly a matter of substantial prejudice if the plaintiff were allowed to raise the issue of deception for the first time at that very late stage of the hearing. 48 Counsel for the plaintiff did not seek leave to make a formal addition to his client's Reply. Whether or not leave was sought, in my opinion the only appropriate course open to the judge in the circumstances would have been to exercise his discretion against allowing the plaintiff to raise the issue at that stage because of the prejudice to the defendant identified by its counsel. The judge's acceptance of the mistaken submission by counsel for the defendant - that the failure to disclose the matter was irrelevant to the issue the jury had to decide - therefore did not affect the proper outcome of the proceedings. 49 Where counsel for a party has departed from the issues in his or her final address to the jury, and where it is inappropriate to amend the issues at that stage, the only sensible way a trial judge can deal with the matter is either to discharge the jury or, if it is sufficient in the circumstances, to direct the jury to disregard what was said. That is the direction the judge gave, even though he did so because he accepted the mistaken submission of counsel for the defendant. 50 The further direction the judge gave, permitting the jury to consider the failure to disclose the malicious source of the allegations as an answer to the defendant's argument that the programme had been a fair and balanced one, actually substantially qualified his earlier direction that that failure was irrelevant to the issue they had to decide, as the defendant's argument that the programme was a fair and balanced one had been directed solely and expressly to the issue of improper motive. That qualification was of considerable benefit to the plaintiff. 51 I would accordingly reject the second ground of appeal, on the basis that the plaintiff had failed to plead the relevant allegation as a separate particular of the Reply alleging an improper purpose on the part of the defendant, and it was too late for him to raise that issue at that very late stage of the trial. 52 Even if that approach were to be regarded as unduly harsh (a proposition I do not accept), I would in the alternative have held that the error produced no substantial wrong or miscarriage which could warrant a yet further new trial (SCR Pt 51 r 23), on the basis of the following matters: (1) the evidence that Mr Higgins was only one source, even though a substantial source, of the allegations made by Mr McDonald in the programme (see par [32] supra ); (2) the statement made in the matter complained of (which was not dependent on Mr Higgins) that a senior BWIU official had described the "Bass affair" as "perhaps the greatest case of victimisation I have observed by any one union against any one contractor" reduced the effect of the deception claim; (3) such an additional head of malice could only be afforded slight weight (see pars [31] and [40] supra ); and (4) the substantial qualification the judge made to his initial direction to the jury that the matter was irrelevant and should be disregarded (see par [50] supra ).

Epilogue 53 I should mention finally the complaint made by the plaintiff for the first time on appeal as supporting the allegation of improper motive, that the defendant failed to raise with Mr McDonald what is said to have been the real character of the plaintiff's complaint - that the vendetta was one of disruption of his business and one which could not be justified in pursuit of unpaid wages. 54 This was not pleaded as a particular of malice, there was no clear request to the judge to direct the jury along those lines, and it does not form a ground of appeal. It is far too late to raise it at this stage. According to the transcript of the argument on appeal (at p 17), it would seem that the complaint may have been abandoned.

Proposed orders 55 I propose that the following orders be made: 1. The appeal is dismissed. 2. The appellant is to pay the respondent's costs.

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