Brett May v TCN Channel Nine Pty Ltd & Ors

Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 Branson v Bower [2002] QB 737 Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 Cheng v Tse Wai Chun [2000] 3 HKLRD 418 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 CASES CITED : Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 Harrigan v Jones [2000] NSWSC 814 Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Waterhouse v Mirror Newspapers Ltd (1985) 1 NSWLR 81

Brett May - plaintiff TCN Channel Nine Pty Ltd - first defendant PARTIES : Nine Network Australia Pty Ltd - second defendant Australian News Channel Pty Ltd - third defendant Royce George - fourth defendant

COUNSEL : S M Littlemore QC/S Chrysanthou - plaintiff A T S Dawson - defendants

SOLICITORS : Kalantzis Lawyers - plaintiff Johnson Winter & Slattery - defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

20019/06 Brett May v TCN Channel Nine Pty Ltd & Ors JUDGMENT 1 His Honour: The plaintiff claims damages in defamation for the publication throughout Australia of matter in the television programme known as "A Current Affair" (the programme) on 2 December 2005. Following a trial under s 7A Defamation Act 1974 (the Act) the jury found the programme conveyed a number of imputations defamatory of the plaintiff. The defendants have filed separate defences in which defences of truth and comment are pleaded. A reply is pleaded to all defences in which are raised a number of issues in defeasance of the comment defences. 2 By their notice of motion filed 21 June 2007 the defendants seek an order under Uniform Civil Procedure Rules 2005 r 14.28(1) that the reply be struck out as embarrassing. Background 3 The programme was broadcast over television station TCN Channel Nine about 6.30pm on 2 December 2005, and over the Sky News Australia channel at about 10.30pm the same day. The plaintiff claims against the first, second and third defendants for the publication of the entirety of the programme, and against the fourth defendant for the publication of the words attributed to him in it. At the s 7A trial the jury found against the first, second and third defendants that the programme conveyed the following defamatory imputations: "(a) he had behaved unreasonably as a highway patrol officer by charging firemen for speeding on the way to an emergency; (b) he had contributed to the unpopularity of highway patrol officers by charging fireman for speeding or parking infringements while those firemen were just trying to do their duty; (c) he was a man with a terrible reputation; (d) he was a man with a terrible reputation with his work colleagues; (e) because of a private dispute he had with his neighbour, the plaintiff threatened to charge his neighbour with an offence, which was an abuse of his position as a police officer; (f) as a police officer, he had charged unreasonably many people in his neighbourhood; (h) as a highway patrol officer, he acted unreasonably by charging a fireman, Ted Burrow, for a parking infringement while Mr Burrow was fighting a fire; (k) as a highway patrol officer, he had behaved outrageously by charging a fireman when he knew the fireman was not travelling much over the speed limit and was on his way to a major fire; (l) he was a hypocrite because he was prepared to charge a fireman on the way to fight a fire, but would not have done so if the fire involved his own house, or his own family; (n) he abused his position as a highway patrol officer, in that because of a private dispute he had with his neighbour, he pulled his neighbour over and told him to get his dog on a leash; (o) he was an incompetent highway patrol officer, because he lacked common sense." 4 The jury found separately against the fourth defendant that the words attributed to him in the programme conveyed the following defamatory imputations: "(c) he was a man with a terrible reputation; (d) he was a man with a terrible reputation with his work colleagues; (e) because of a private dispute he had with his neighbour, the plaintiff threatened to charge his neighbour with an offence, which was an abuse of his position as a police officer; (f) as a police officer, he had charged unreasonably many people in his neighbourhood; (n) he abused his position as a highway patrol officer, in that because of a private dispute he had with his neighbour, he pulled his neighbour over and told him to get his dog on a leash;" 5 On 30 March 2007 separate defences on behalf of each of the first, second and third defendants were filed. These defendants have pleaded defences of comment under the Act in respect of publication in New South Wales. In addition, they have pleaded separately in respect of publication in Queensland, Tasmania and the Northern Territory defences of statutory fair comment under the applicable legislation. They have also pleaded a defence of common law fair comment in respect of publication in Victoria, South Australia, Western Australia and the Australian Capital Territory. 6 On 30 March 2007 the fourth defendant also filed a defence. It includes the defence of comment under s 32 of the Act in respect of publication in New South Wales. In respect of publication in the other states and territories it includes the same defences of statutory fair comment and common law fair comment as pleaded in the other defences. The NSW comment defences 7 The first and second defendants have each pleaded comment defences which, relevantly, are in the following terms: "(d) that comment was the comment of the first defendant and/or the first defendant's servant or agent, Mr Ben Fordham, and/or alternatively: (i) in the case of the imputations pleaded in sub-paragraphs 9(c), 9(d), 9(e), 9(f) and 9(n), the comment of Mr Royce George; (ii) in the case of the imputations pleaded in sub-paragraph 9(h), the comment of Mr Ted Burrow; (iii) in the case of the imputations pleaded in sub-paragraph 9(k), the comment of Mr Angus Edwards; (iv) in the case of the imputations pleaded in sub-paragraph 9(l), the comment of Mr David O'Leary." 8 The third defendant's comment defence is pleaded, relevantly, in the following terms: "(d) that comment was the comment of the third defendant and/or alternatively: (i) the comment of Mr Ben Fordham, (ii) in the case of the imputations pleaded in sub-paragraphs 9(c), 9(d), 9(e), 9(f), and 9(n) the comment of Mr Royce George; (iii) in the case of the imputations pleaded in sub-paragraph 9(h), the comment of Mr Ted Burrow; (iv) in the case of the imputations pleaded in sub-paragraph 9(k), the comment of Mr Angus Edwards; (v) in the case of the imputations pleaded in sub-paragraph 9(l), the comment of Mr David O'Leary." 9 Mr Fordham was the reporter. Messrs George (the fourth defendant), Burrow, Edwards and O'Leary were interviewed on the programme. 10 The fourth defendant's comment defence is pleaded, relevantly, in the following terms: "(d) that comment was the comment of the fourth defendant." 11 From these pleadings it appears that:

(i) each defendant pleads that the comment was the comment of the defendant under s 32(1) of the Act;

(ii) the first and second defendants plead, also, that the comment was the comment of a servant or agent of the defendant under s 33(1) of the Act. 12 The argument on the application proceeded on the basis that the defences of the first, second and third defendants also disclosed a defence that the comment was the comment of a stranger under s 34(1). However, it is plain from the very terms of the pleading that they do not. The form in which the matters in sub paras (i) - (iv) in the defence of the first and second defendants suggest only that the persons named are the servants or agents of those defendants in addition, or in the alternative, to Mr Ben Fordham, which would be relevant to a s 33(1) defence. The form in which the matters in sub-paras (i) - (v) of the third defendant's defence are expressed suggest nothing about the status of the persons named. In neither case has any attempt been made to comply with the provisions of r 14.38(1)(c)(iii) which, for a defence under s 34(1), requires the pleading of an allegation that the comment was not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant. No attempt has been made by the third defendant to comply with the provisions of r 14.38(1)(c)(ii) which, for a defence under s 33(1), requires the pleading of an allegation that the comment was the comment of a servant or agent of the defendant, and to include particulars under r 15.28(1)(c) identifying the servant or agent whose comment it is alleged to be. 13 Left as it is, the pleading of these comment defences is confusing and inadequate. If the first, second and third defendants propose to rely at the trial on defence of comment of a stranger and, in the third defendant's case, the defence of comment of a servant or agent of the defendant, it will be necessary for the defences to be amended to include pleadings which disclose such defences. However, for the purpose of the present application it is appropriate that the challenge to the reply be determined on the assumption that they do. The common law and statutory fair comment defences 14 Each defence has pleaded the defence of common law fair comment in respect of publication in Victoria, South Australia, Western Australia, and the Australian Capital Territory in the following terms: "(a) insofar as the matter complained of contains statements of fact the same were true in substance and in fact; and (b) insofar as the matter complained of contained expressions of opinion, such expressions of opinion are fair comment upon a matter or matters of public interest." 15 Each defence also includes, in relation to the jurisdictions in which they arise, the defence of statutory fair comment under Defamation Act 1889 (Qld) s 14, Defamation Act 1957 (Tas) s 14, Defamation Ordinance 1938 (NT) s 6A. The defence in each case is in the following terms: "Further and in the alternative, the matter complained of constituted fair comment respecting the public conduct of the plaintiff as a police officer." The reply 16 On 12 April 2007 the plaintiff filed a reply. Relevantly, it included the following: "2. In answer to the defences of comment, fair comment and statutory fair comment, the plaintiff says that insofar as any part of the matter is found to be comment (and it is denied that any of the imputations is a comment) such comment: (a) did not, at the time it was made, represent the opinion of the first, second or third defendant; (b) was not, at the time it was made, the opinion of the defendant's servant or agent Mr Fordham who made it; (c) was not, so far as it was a comment made by either or all of Messrs Burrows, Edwards or O'Leary, published in good faith for public information or the advancement of education; (d) was made by a person whose opinion was distorted by malice; (e) was not fair. Particulars under UCPR Rule 15.31: (a) The matter was published by the defendants with ulterior motives; alternatively with foreign purposes, as evidenced by the following …"

(There follows sub-paras (i) - (xv) in which particulars of the facts and matters to establish motives or purposes are set out.) 17 Under UCPR the following rules are relevant to the pleading of a reply: "14.14 General rule as to matters to be pleaded specifically … (2) In a defence or subsequent pleading, a party must plead specifically any matter: … (b) that the party alleges makes any claim, defence or other case of the opposite party not maintainable,

… 15.1 Pleadings must give all necessary particulars (1) Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.

… 15.31 Particulars concerning grounds that defeat defamation defences

(1) If a plaintiff intends to meet any defamation defence: … (b) by relying on any matter which, under the Defamation Act 1974 or the Defamation Act 2005 , defeats the defence, then the particulars required by rule 15.1 in relation to the reply must include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that allegation or matter of defeasance." 18 The defendant challenged the reply as embarrassing. In short, the defendants' objection was on grounds that it was so structured that it failed to specify separately with respect to each defence the matter of defeasance relied upon, and the necessary particulars in support of it. It was submitted that, taken as a whole, the pleading was confusing in that it was not clear to which ground of each defendant's defence the matter pleaded in paras 2(a) - (e) related. It was put that that confusion was compounded by the manner in which the particulars are pleaded. In particular, having regard to the language of (a) thereof, the defendants are obliged to endeavour to ascertain or divine to which matter of defeasance some or all of the particulars are relevant. The defendants also put that, in any event, the particulars taken one by one are meaningless and/or irrelevant, and should be struck out with regard to the principles considered in Harrigan v Jones [2000] NSWSC 814. The essence of the challenge was that the pleading failed to comply with the requirements of r 14.14(2)(b), r 15.1(1), and r 15.31(1)(b). 19 The issues require consideration of relevant grounds of defeasance which may be pleaded by a plaintiff in answer to the various categories of defences of comment pleaded by the defendants in this case. Grounds of defeasance 20 In New South Wales, the situation under the Act is that where the comment is, or where it purports to be, the comment of the defendant or of his servant or agent, the defence of comment is defeated only if it is shown by the plaintiff that the comment did not represent the real opinion of the defendant or of his servant or agent (ss 32(2); 33(2)). Under s 34(1) a defence of comment is available where the comment is not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant. Such a comment is usually referred to as the comment of a stranger. It can be defeated only if it is shown by the plaintiff that the publication complained of was not made in good faith for public information or the advancement of education (s 34(2)). (Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699, p 713). 21 Thus, where the author of the comment is shown to be the defendant, or his servant or agent, the defendant is entitled to succeed unless the plaintiff has pleaded and established that the author did not hold the opinion he expressed i.e. that the comment was subjectively not the commentator's real opinion (Hawke p 716). The relevant factual issue which arises was explained in Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474, by Hunt, J (p 491): "(4) Was the comment the honest expression of the author's real opinion? The only state of mind of the author which is relevant to this question is the honesty with which he expressed his real opinion. Malice or other motive or state of mind on the part of the author cannot by itself defeat his defence of comment.' 22 In Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 it was held (p 735): "… a jury must necessarily approach a defence of comment on the basis that the comment conveys such of the defamatory imputations pleaded as the jury find to have been established. The question they have to consider, where s 33(2) is pleaded, is whether or not the servant or agent of the defendant had the opinion represented by these defamatory imputations. There is no such thing as comment in the air. Comment must have a meaning, and ex hypothesi the jury are proceeding on the footing that its meaning is defamatory in the sense of the pleaded imputations which have been found established."

(This case settled the matter: NSW Aboriginal Land Council v Perkins (1998) 45 NSWLR 340, p 349.) 23 In Cawley v Australian Consolidated Press Ltd [1981] 1 NSWLR 225 Hunt, J (p 230) emphasised that an absence of good faith in the publication was no answer to the defence of comment of the defendant or of its servant or agent, in contrast to the situation where the comment is that of a stranger, when an absence of good faith in the publication is made a conclusive answer to the defence of comment. Thus the defendant is entitled to succeed on a defence of comment of a stranger unless the plaintiff has pleaded and established that the defendant's motive in publishing was not in accordance with s 34(2). 24 The defence of statutory fair comment will be defeated if it is shown by the plaintiff that the comment published by the defendant was not in fact the commentator's real opinion or that it was distorted by malice in the sense that it warped his judgment. In Cawley, Hunt, J said (p 237): "I conclude that the concepts and principles of the common law do apply to the defence of statutory fair comment provided by the Codes, so that, although proof of malice or absence of good faith in the publication of the comment is not a conclusive answer to that defence, malice is nevertheless relevant (once more leaving to one side any question of onus of proof) as one of the elements to be considered and weighed in determining whether the comment was or was not in fact the commentator's real opinion and whether it has been distorted in the sense that the malice warped his judgment." 25 Accordingly, Hunt, J held (Cawley p 239) that a plaintiff should not plead malice as a conclusive answer to a defence of statutory fair comment. He also held that it was open to plead an allegation in accordance with Pt 15, r 13(2) (now UCPR Pt 14, r 14.14(2)) that the malice of the defendant or of the author of the matter complained of had warped his judgment and thus distorted his opinion. 26 Hunt, J was also of the view that malice could not be a conclusive answer to the defence of common law fair comment (Cawley p 237). However, because he conceded that on the existing state of the authorities the question remained arguable he did not finally determine it. (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.) He therefore decided not to direct the reply be amended to delete the application of the allegation of malice to the defence of common law fair comment pleaded in the defence under consideration (Cawley p 238). 27 Since Cawley the meaning of malice in the context of the defence of common law fair comment has been considered in cases of persuasive authority. In Cheng v Tse Wai Chun [2000] 3 HKLRD 418 Lord Nicholls explained why malice itself is not a conclusive answer although it may be relevant to the question whether the commentator genuinely held the opinion he expressed. He said:

(p 430): "The purpose and importance of the defence of fair comment are inconsistent with its scope being restricted to comments made for particular reasons or particular purposes, some being regarded as proper, others not. Especially in the social and political fields, those who make public comments usually have some objective of their own in mind, even if it is only to publicise and advance themselves. They often have what may be described as an "ulterior" object …"

and (p 438): "… To summarise, in my view, a comment which falls within the objective limits of the defence of fair comment can lose its immunity only by proof that the defendant did not genuinely hold the view he expressed. Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred. Proof of motivation may also be relevant on other issues in the action, such as damages. It is said that this view of the law would have the undesirable consequence that malice would bear different meanings in the defences of fair comment and qualified privilege, and that this would inevitably cause difficulty for juries. I agree that if the term "malice" were used, there might be a risk of confusion. The answer lies in shunning that word altogether. Juries can be instructed, regarding fair comment, that the defence is defeated by proof that the defendant did not genuinely believe the opinion he expressed. Regarding qualified privilege, juries can be directed that the defence is defeated by proof that the defendant used the occasion for some purpose other than that for which the occasion was privileged. This direction can be elaborated in a manner appropriate to the facts and issues in the case." 28 In Branson v Bower [2002] QB 737 Eady, J expressed his agreement with Lord Nicholls's conclusion. He observed (p 742) that Lord Nicholls's judgment "… re-emphasises that, for the defence traditionally known as "fair comment on a matter of public interest", the touchstone is always honesty and that it should not be watered down by considering issues such as fairness or moderation". 29 With reference to a commentator's state of mind Eady, J said (p 741):

"It has long been clear that one may be prejudiced or biased and yet claim the protection of a fair comment defence for the expression of one's views. Those views may themselves be exaggerated or obstinate and yet fall within the concept of honest opinion. If one is writing or speaking on a matter of public interest, there is no doubt that the law permits the language to be rude and offensive. It has been acknowledged, for example, that a critic is entitled to dip his pen in gall for the purposes of legitimate criticism: see e g Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171, 174 (Jordan CJ), Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461 (Lord Porter) and Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743, 749 (Diplock J)." 30 He also pointed out (p 742) that motive is not totally irrelevant, because there are circumstances in which it could be germane to the primary question whether the opinions were honestly expressed. 31 In my assessment, the conclusions of Lord Nicholls in Cheng and of Eady, J in Branson are entirely consistent with the opinion of Hunt, J in Cawley on the same issue. In my respectful opinion their conclusions are correct and should be followed. Accordingly, I hold that a plaintiff should not plead malice as a conclusive answer in reply to a defence of common law fair comment, but may plead malice in the limited form suggested for a reply to a defence of statutory fair comment. 32 In summary, the authorities hold that to defeat defences of comment under s 32(1) and/or s 33(1) of the Act, of common law fair comment, and of statutory fair comment the plaintiff must establish that the comment did not represent the opinion expressed i.e. the defendant did not genuinely hold the view he expressed, or put forward as his view something which, in truth, was not his view (Cheng p 426). Malice may be a relevant factor to this issue, but it is not conclusive. Further, malice does not defeat a comment which represents an honestly held opinion. 33 Of course, proof that the comment did not represent the opinion of the defendant does not necessarily require the plaintiff to establish malice in the sense referred to. For example, in answer to the defences under s 32(1) or s 33(1) of the Act a plaintiff may show that the defendant, or the defendant's servant or agent, did not intend to convey a particular defamatory imputation which would support the conclusion that he did not hold the opinion represented by that imputation (Lloyd p 736; Bickel p 486). Determination 34 With regard to the preceding observations, I turn briefly to the manner in which grounds of defeasance, including the issue of malice, should be pleaded in reply. 35 Under r 14.14(2)(b) a matter of defeasance must be specifically pleaded to the particular ground of defence to which it relates. Generally, in reply to a defence of comment the matter of defeasance must necessarily be directed to the state of mind of the commentator whose comment is relied upon by the defendant. Each person must be taken as having a mind of his own. Accordingly, if a plaintiff intends to show that the comment was not the opinion genuinely held by the commentator at the time of publication, it will be necessary to plead the facts and matters relied upon to establish that allegation (r 15.1(1), 15.31(1)(b)). Where, as in this case, the defendants plead the comments of a number of commentators, the state of mind of each commentator is put in issue with the consequence that the facts and matters relevant to each person's state of mind must be specified. As the issue in respect of each commentator requires separate consideration, the plaintiff is obliged to identify what is relied upon in each case to inform the defendant of the case to be met. Anything not directed to establishing that the opinion expressed in the publication did not honestly represent what the commentator believed should be struck out (Branson para 9). 36 For the purpose of deciding the present application it is unnecessary to deal separately with each of the allegations in paras 2(a) - (e) and the particulars as pleaded in the reply. In my opinion it is self-evident that the pleader has failed to comply with the requirements of r 14.14(2)(b) in that no matter of defeasance has been specifically pleaded to each comment defence raised in the four defences. Also evident is the failure to comply with the requirements of r 15.1(1) and 15.31(1)(b) to clearly link the particulars to a specific allegation of a ground of defeasance which, in turn, is directed to a particular commentator or commentators. 37 Taken overall, in my opinion, the pleading is productive of confusion to a degree which is likely to cause embarrassment or delay in the proceedings. I therefore propose to order that paras 2(a) - (e) and the particulars be struck out under r 14.28(1), with liberty to replead. 38 It is unnecessary to rule on the objections taken to the sufficiency and/or relevance of the particulars in paras (a)(i) - (xv) as it is likely that an appropriately amended reply will include differently pleaded particulars. Nevertheless, in my opinion many of the objections had much force. It would be prudent for the draftsman of any amended reply to take into account the observations of Hunt, J in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 and Waterhouse v Mirror Newspapers Ltd (1985) 1 NSWLR 81, and of Levine, J in Harrigan. 39 Before the plaintiff should be required to plead, it is necessary for the defences of the first, second and third defendants to be amended in accordance with the rules to clarify which of the defences of comment under s 33(1) and/or s 34(1) of the Act will be raised. Conclusion 40 I make the following orders and directions:

(1) that paras 2(a) - (e) and the particulars as pleaded in the reply filed 12 April 2007 be struck out, with liberty to replead;

(2) that the first, second and third defendants serve any amended defence on/before 4pm 27 July 2007; and

(3) that the plaintiff serve any amended reply or replies on/before 4pm 10 August 2007 41 I stand the proceedings over to the defamation directions list 9.30am 13 August 2007. The parties should then have the opportunity to propose directions for the future conduct of the proceedings and, failing agreement, address on the question of costs. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.