Cleary & Anor v Hore-Lacy

[2009] VSCA 132

Defamation - Pleading - Book - Defence - Application to amend to plead fair comment - Whether open to jury, properly instructed, to find that matter sought to be pleaded could be comment rather than fact - Whether, if matter was capable of constituting comment, any comment was so intermingled with facts as to be indistinguishable from those facts - Whether open to jury to find that any comment was based upon facts truly stated - Refusal by judge at first instance to permit amendment affirmed.

1 Before the Court is an application for leave to appeal against an order made by a judge of the Trial Division[1] on 25 June 2008. His Honour dismissed a summons, dated 18 March 2008 by which the defendants, Phil Cleary and Allen & Unwin Pty Ltd (for convenience, 'the appellants'), sought leave to amend their defence.

2 Also before the Court, in the event that the application is granted, is the appeal itself.

3 For the reasons which follow, I would refuse the application on the ground that the decision below was not wrong or attended by sufficient doubt as would warrant grant of leave. Indeed, I consider that the decision was correct.

The proceeding. The history of the pleadings.

4 The proceeding involves an alleged defamation of the respondent by the appellants - the first appellant being the author, and the second appellant being the publisher, of a book entitled 'Getting Away with Murder: The True Story of Julie Ramage's Death'.

5 The proceeding commenced with the filing of a writ on 15 October 2005. The pleadings remain incomplete. At least, they do so until disposition of the present application.

6 The history of the matter, up to the time of the decision now challenged, is set out in the reasons for judgment of the learned trial judge at [2008] VSC 215, [2]-[[16].

7 The question for determination on the appellants' summons filed 18 March 2008 was whether the appellants should be granted leave to amend their defence so as to allege a third version of a fair comment defence. The application to amend was the appellants' response to an earlier decision of this Court[2] which struck out their then-current fair comment defence.

8 By his amended statement of claim, the respondent had pleaded, inter alia, that -

1. The book disparaged the Plaintiff personally and in his calling as a member of the Victorian Bar practising as Senior Counsel, thereby holding him up to hatred, contempt and ridicule and, in particular, it disparaged the Plaintiff in the following three excerpts (appearing at pages 57, 204 and 217 respectively) and from the general tenor and theme of the book:

'If Julie had belittled Ranage at lunch then surely he'd have told his son during the dinner at Columbo's. It might even have been time to say he'd killed Julie. Was it because it was a fabrication that Ramage didn't tell his son Julie had ridiculed him and the renovations? At the time of the dinner Ramage could hardly have known that such a story might form the basis of a provocation defence. Surely he only learnt about the mysterious laws of provocation when he met Hore-Lacy and Pica?

If Dunn thought the claim that Ramage had three hours to fabricate a case against his wife was crap, then his opening address was nothing short of bullshit.

The more he read, the worse Justice Osborn's judgment sounded. Ramage, he said, had 'contacted a friend and handed himself in to police'. No mention that the friend was a top QC or that his name was Dyson Hore-Lacy. Three weeks of evidence and not a single mention of Hore-Lacy's name in any transcript. No mention by the judge that Ramage had spent the evening in the Harp Hotel with a lawyer. After Mazin Yasso killed his wife he was found in a park smoking his last cigarette. A poor, part-time cleaner, Yasso had no lawyer to help him manufacture a provocation defence. So much for the claim that everyone is equal before the law.'

1. In its ordinary and natural meaning, the book meant and was understood to mean that:

(a) The Plaintiff had manufactured a defence of provocation for James Ramage thereby perverting the court of justice;

(b) The Plaintiff had, in combination with James Ramage and/or Stephen Pica, agreed to manufacture a defence of provocation for James Ramage thereby perverting the course of justice.

(c) The Plaintiff committed a serious breach of barristers' ethics.

(d) The Plaintiff committed an act of professional misconduct.

1. They say further that, if the book was defamatory of the plaintiff (which is denied), then in so far as it consisted of statements of fact, those statements are true in substance and in fact and, in so far as it consisted of expressions of opinion, those expressions are fair comment on a matter of public interest, namely whether James Ramage should have been entitled to rely on a defence of provocation to the charge of wilful murder brought against him and the role played by the legal practitioners who communicated with Ramage shortly before he turned himself in to the Police.

PARTICULARS

The substance of the comment was that:

(i) there is a serious question to be investigated as to whether the Plaintiff played any role in manufacturing the defence of provocation on which James Ramage relied at his trial for wilful murder of his wife Julie;

(ii) there is a serious question to be investigated as to whether the Plaintiff had committed a serious breach of barristers' ethics or an act of professional misconduct.

10 This Court held that the substance of the alleged comment, which was that there were serious questions to be investigated, did not meet the sting of the alleged defamation - which was that the respondent's conduct constituted the doing of the two things which the appellants pleaded were serious questions for investigation. The Court further held that, where a defendant pleads the 'rolled-up plea', it is not the law that particulars cannot be required of the facts upon which the comment was allegedly based.

11 The application to re-plead, as I have noted, was a response to that decision. One must assume that it was made upon the appellants' instructions.

12 By the application, the appellants sought to plead a comment the substance of which differed dramatically from what had hitherto been asserted. Thus:

(i) the substance of the comment was that the Plaintiff, in combination with Stephen Pica, assisted James Ramage to manufacture a defence of provocation and thereby to pervert the course of justice, and in so doing committed a breach of barristers' ethics and an act of unsatisfactory professional conduct:

13 I pause to highlight three matters. First, the earlier version of the alleged comment had been that there were serious questions to be investigated whether the respondent had acted in particular ways. But by the proposed amendment the alleged comment was that the respondent had acted in those ways.

14 Second, the proposed defence sought to plead that the publication made comment that the respondent and the other lawyer combined to assist Ramage to manufacture a defence of provocation and thereby to pervert the course of justice, and in doing so committed a breach of barrister's ethics and an act of unsatisfactory professional conduct. No circumstance other than the alleged manufacture of the defence of provocation was relied upon to constitute what was said to be a comment that the respondent had perverted the course of justice and the further comment that he had engaged in unethical and unsatisfactory behaviour. So, for example, no question arises whether (taking one of the passages relied upon as the source of the alleged comment) the following alleged conduct of the respondent constituted unethical or unsatisfactory behaviour:

A book about legal ethics might question how [the respondent] could use emotive, passionate language about the police shooting of Gary Abdulah but seek refuge behind legal protocol when the victim is an estranged wife. It might also question why defence barristers are more affronted by the treatment of refugees and the suffering of women and children in detention centres than the violence behind the clinker brick of a domestic home.

15 Third, the appellants now sought to allege that a comment was made essentially to the same effect as the alleged defamation. They did not plead justification. Their counsel submitted, see below, that one reason for them not doing so was that such a pleading would have been inappropriate.

16 The judge, having identified what the appellants now sought to plead as the substance of alleged comment, referred to particular (ii) subjoined to the proposed paragraph 11 of the defence. That particular reads:

(ii) the First and Second Defendants rely on:

(A) the passage referred to in paragraph 6 of the Amended Statement of Claim;

(B) the following passage on page 74 and 75:

My discussions with Dyson at the time of the trial were a game of cat and mouse. He was clearly unhappy discussing his conversations with the killer during their time at the Harp. When I asked why he didn't give evidence he said that if the police thought he had something to offer they'd have spoken to him. Maybe!! The truth is somewhat less clear, for Ramage carefully avoided identifying Dyson Hore-Lacy as the friend by the name of Dyson he was 'going to see'. At no point in his police interview does he say exactly who 'Dyson' was or that he was a barrister.

The moral conundrum aside, one important question still rattled in my head. 'What would you have done if you'd bumped into Jane Ashton or one of Julie's friends had rung looking for James on the night of the murder?' I asked. 'Sorry, Phil, I can't help you,' he told me. The question was one of a number I emailed Dyson in relation to what had happened at the Harp. None of them involved him offering me privileged information. The best he could say, was, 'I am not sure why the info is necessary unless you are thinking of doing a chapter on legal ethics.'

A book about legal ethics might question how Dyson Hore-Lacy could use emotive, passionate language such as 'shot like a dog on a leash' when talking about the police shooting of Gary Abdullah but seek refuge behind legal protocol when the victim is an estranged wife. It might also question why defence barristers are more affronted by the treatment of refugees and the suffering of women and children in detention centres than the violence behind the clinker brick of a suburban home Julie had never committed an act of violence and her death was slower than Abdullah's. And one telling fact remained. While Dyson and then Pica talked with Ramage, Jane Ashton was going out of her mind. Was she asking too much to think Julie's friend might have said 'Sorry, James, you're on your own, mate.'

Our final conversation took place in March 2005. I was trying to clarify what Margaret had meant when she told me that on the afternoon of the murder Dyson had said, 'I have some shocking news, but I can't tell you anything.' Unless it was after the meeting at the Harp or the next day, it just didn't make sense. When I pressed the question he said, 'You're pushing a friendship Phillip, I am going to hang up.' That was the end of the matter. Margaret obviously got the days confused.

...it is clear that the comment, now sought to be pleaded by the defendants, is in essence an amalgamation of the four imputations alleged by the plaintiff. Thus, the comment now alleged by the defendants meets the sting of the plaintiff's imputations, and the proposed amendment, to that extent, cures the defect identified by the Court of Appeal in respect of the comment which the defendants had previously sought to plead.

18 His Honour carefully set out the principles which govern consideration of an application to amend pleadings.[3] It is not in issue that he did so correctly.

19 His Honour then analysed, at length, and by reference to pertinent authorities, the nature of the fair comment defence.[4] His analysis was in my respectful opinion correct.[5]

20 The judge summarised the first question for his determination this way:

Bearing those principles in mind, the first question which I need to determine is whether a jury could reasonably conclude that the ordinary reasonable reader of the book would understand that the parts of the book, alleged by the plaintiff to be defamatory of him, were comments by the author, in the sense of being an opinion expressed on facts truly stated in the book or truly referred to by the author.[6]

21 Having outlined the opposing submissions, the learned judge considered the passages alleged to constitute comment. He did so contextually and not by reading passages identified by the parties in isolation. He ultimately concluded that those passages could not have been found by a reasonable jury, adopting the position of the ordinary reasonable reader, to be comment rather than statements of fact. He said this -

1. In order to decide this question, I have read the book, as suggested by counsel for the plaintiff. In doing so, I have borne in mind that it is for a jury to decide whether the material complained of by the plaintiff is a statement of fact or opinion. The question which I must decide is whether a jury could reasonably conclude that an ordinary reasonable reader would understand the material, complained of by the plaintiff, to be one of comment rather than fact.
2. The 'ordinary reasonable' reader or listener, referred to in Manock's case, is a hypothetical figure well known to the law of defamation. It is by reference to the same person that the law determines the meanings of words which are alleged to be defamatory. In assuming the viewpoint of such a person, the material complained of by the plaintiff must be construed, not as a lawyer, but as a layman.[7] The ordinary person is someone who is not 'avid for scandal', and who is neither unusually suspicious nor unusually naïve. Such a person does engage in a degree of loose thinking, and reads between the lines.
3. In these proceedings the plaintiff relies on three passages in the book, which I have already set out. It is the third passage, at page 217, which, it would seem, is the most critical. That passage commences by asserting that the plaintiff was not referred to by his surname either at Ramage's trial or in his record of interview. It also states that the trial judge, in passing sentence on Ramage, made no mention that Ramage had spent the evening at the hotel with a lawyer. It then states that Mazin Yasso, after he killed his wife, was found in a park smoking his last cigarette. It concludes by stating that Yasso 'had no lawyer to help him manufacture a provocation defence'.
4. Standing alone, if a jury accepts that that passage bears the meaning that the plaintiff manufactured, or assisted Ramage to manufacture, the defence of provocation relied on by Ramage, that assertion could only be construed as an allegation of fact. It is not couched as an opinion. No facts are stated, or referred to, upon which such an opinion might be seen to be based. Assessed in isolation, it could only be construed as a statement of fact, and not an expression of opinion.
5. Of course, the issue which I must decide is not so simple. The passage at page 217 is contained in a book of almost 250 pages. The defendants submit that the passage is an expression of opinion, based on a number of facts, stated earlier in the book, and which are identified in the particulars to the amended plea. Accordingly, it is necessary to examine the nature and content of the book, and, particularly, the context in which the statement, complained of by the plaintiff, is to be found.

'This book attempts to expose the betrayal. It's also an attempt to tell the truth about how Julie really died and what kind of person she was. Unconstrained by the laws of evidence, Getting Away With Murder literally does tell the true story. To that extent the fictitious story of how Julie Garrett died is shown for the legal lie it is.'

1. In my view, those concluding remarks make it plain, beyond argument, that the assertion by the author, as to what went on at the Harp Hotel, was a statement of fact. At no point does the author present the assertion, that Ramage's defence was concocted at the Harp, as an expression of opinion by him, or as a deduction by him. On the contrary, the book is presented as being the real 'truth' of the circumstances of the killing of Julie Ramage, and of Ramage's acquittal of her murder. It may be that the author formed the views, which he did, as a deduction, based on the series of facts set out in the particulars to the amended defence. However, the book does not identify those facts as underpinning the allegation by him that the defence of provocation was concocted at the Harp Hotel. Thus, I do not consider that a jury, properly instructed, could reasonably conclude that the allegation, that the plaintiff assisted Ramage to fabricate his provocation defence, was a comment by the first defendant, and not an assertion of fact (citations omitted).

22 Subject to an argument late-raised for the appellants, it was not suggested in this Court that his Honour's approach was wrong in principle; but rather that he arrived at wrong conclusions.

23 Then his Honour dealt with the question of intermingling of fact and comment. He said this:

1. Even if, contrary to that conclusion, it could be said that the allegation that the plaintiff assisted Ramage to manufacture his defence of provocation could be a comment, rather than a statement of fact, the author makes no attempt to identify for the reader what are the relevant matters of fact and what are the expressions by him of such opinion. In other words, even if the allegation that the plaintiff assisted Ramage to manufacture his defence could be characterised as a comment, it is so intermingled with the facts set out in the text of the book, as to be indistinguishable from those facts. Bearing in mind the underlying rationale for distinguishing between statements of fact and comment, I do not consider that a jury could reasonably conclude that the ordinary reasonable reader of the book would consider that the allegation, relied on by the plaintiff, was an opinion, the validity of which the reader could assess for himself or herself from facts identified by the author as forming the basis for that opinion.

24 His Honour next turned to the question whether, if the allegation that the respondent assisted Ramage to fabricate a defence of provocation was capable of being construed as a comment, it would be open to a jury to conclude, taking the viewpoint of the ordinary reasonable reader, that such comment was based upon facts truly stated. He held that it would not be so open. It was incontrovertible that some facts upon which the appellants evidently relied were untrue.[8] The appellants' contention that those facts were not relied upon as the foundation for the comment - see particular (iii) to the proposed paragraph 11[9] - was correct, but not decisive. Concerning the matter last-mentioned, his Honour said this:

If, contrary to my conclusions above, the allegation that the plaintiff had helped Ramage to manufacture his provocation defence, was a comment rather than an allegation of fact, it is significant that such a comment was made in the same paragraph in which, and immediately after, the author alleged that the plaintiff's surname and position as a Queen's Counsel had been concealed in the record of interview and at trial. If the allegation that the plaintiff assisted Ramage to fabricate his provocation defence was a comment, then the primary fact apparently pointed to by the author to support that assertion is the concealment of the plaintiff's identity in Ramage's interview and at his trial. As a matter of logic, that fact would not be coincidental or irrelevant to the assertion that the plaintiff had assisted in the manufacture of the provocation defence. Rather, the author was asserting that Ramage was at pains to conceal, both from the police, and then from the jury, the knowledge that he had had an experienced Queen's Counsel assist him to put together his defence of provocation, in order to enhance the credibility, and apparent spontaneity, of the account which he gave to the police in his record of interview.

Thus if, contrary to my conclusions above, a jury could reasonably conclude that the statement, complained of by the plaintiff in this case, is a comment rather than an allegation of fact, in my view a jury could only conclude that that comment was based (inter alia) on the alleged fact that Ramage had intentionally concealed the plaintiff's identity both from the police and at trial. Accordingly, if the statement complained of by the plaintiff is capable of constituting a comment, it could not be capable of constituting fair comment, since it was based on facts which were not truly stated.

25 The grounds upon which the appellants rely in support of their application, and, if it was granted, their appeal, are as follows:

1. His Honour erred in law in finding that no jury. properly instructed, could conclude that the alleged comment in paragraph (i) of the particulars of paragraph 11 of the proposed further amended defence (namely, that the plaintiff, in combination with Stephen Pica, assisted James Ramage to manufacture a defence of provocation and thereby pervert the course of justice, and in so doing committed a breach of barristers' ethics and an act of unsatisfactory professional conduct) was a comment by the First Appellant and not an assertion of fact.
2. His Honour erred in finding that if the alleged comment was a comment, it was so intermingled with the facts set out in the text of the book that no jury could reasonably conclude it to be distinguishable from those facts.
3. His Honour erred in law in finding that no jury could reasonably conclude that the ordinary reasonable reader of the book would consider the alleged comment to be an opinion, the validity of which the reader could assess for himself or herself from facts identified by the author as forming the basis for that opinion.
4. His Honour erred in law in finding that if the alleged comment was a statement of opinion rather than fact, a jury could not conclude that it was not based on true facts because it was based, inter alia, on an alleged fact which was not truly stated, namely that Ramage had intentionally concealed the Respondent's identity both from the police and at the trial.

26 The respondent filed a Notice of Contention. Thus:

If the learned judge below erred in any of the ways set out in grounds 1-4 of the applicants' Notice of Appeal, no substantial wrong or miscarriage of justice was thereby occasioned inasmuch as the defence of fair comment was, in any event, bound to fail because the putative comment did not satisfy the objective test of honesty for fair comment.

27 In this Court, counsel for the appellants submitted by written argument, in support of grounds 1-3, that it was plainly arguable that a fair-minded reader could understand the alleged comment to be a comment based upon the seven facts stated in paragraph (iii) of the particulars to the proposed paragraph 11. The reader would understand, the author of the book not having been present at the Harp Hotel on 21 July 2003, not having had access to a transcript of what had been said, and not having had any account from the participants of what had been said, that the author was expressing a subjective deduction or inference - having regard to the facts relied upon - as to what must have happened. An ordinary reasonable reader, apprised of the seven facts relied upon, might or might not conclude that they warranted the conclusion expressed by the alleged comment. This demonstrated that it was a comment. The learned judge had erred in concluding that a jury could not reasonably draw a distinction between the alleged comment and facts stated in the text of the book. A reader has a greater capacity to distinguish between fact and comment than does the viewer of a television program or the listener to a radio program. Finally, other passages in the book gave support for the conclusion that the alleged comment was capable of being understood as comment rather than as an assertion of fact.

28 In oral argument, counsel for the appellants advanced a new contention, which had been put neither to the judge below nor in the written outline of submissions. He submitted that the meanings pleaded by the respondent should be characterised as comments, and that comments were properly met, and could only be met, by a fair comment defence. I understood counsel to submit that the learned judge had erred by not recognising that the meanings alleged by the respondent were comment, and that any response must necessarily be comment.

29 Counsel for the appellants advanced a second argument which was neither put below nor contained in the outline of submissions. He argued that the judge had erred by embarking upon consideration whether the appellants should be permitted to re-plead, as if on a strike-out application. The matter was only one for the trial judge. But later, in answer to my question, he appeared to resile from that submission to an extent.

30 The appellants' changing position concerning what I have called the second new point is exposed by the following exchange between Redlich JA and counsel:

[HIS HONOUR]: Mr Houghton, we've now had three positions adopted by you. I don't mean to be unduly critical, firstly, you said to the learned presiding judge you don't take issue in principle with the approach adopted by the judge below, then very recently you agreed with me that you do, and now it seems to me you're really adopting a middle position, which, there might be circumstances in which a judge could strike it out, such a defence - - -

[COUNSEL] Yes.

[HIS HONOUR]: - - - but it was wrong in this case to do so.

[COUNSEL]: Yes, well, that's the one I do adopt because you got to put the extreme position that it could never be right for a strike out of an interlocutory application - - -

31 The first new argument depended upon the proposition that the gist of the defamation - see paragraph 7(a) and (b) of the Amended Statement of Claim - was that the respondent had perverted the course of justice and had prevented the course of justice, this involving commission of a serious breach of barristers' ethics and an act of professional misconduct. These were conclusions, and were 'redolent of comment'. Counsel submitted, alternatively, that it was at least arguable that the meanings were conveyed as comment.

32 In answer to a question by Redlich JA, counsel agreed that he was not going so far as to submit that simply because a matter was being asserted by way of a process of inferential reasoning, it was therefore a comment. Rather, he submitted, the task of coming to a clear finding whether a publication would be conveyed to the hypothetical reader as fact rather than comment is notoriously difficult.

33 Counsel for the respondent did not dissent from the proposition that the reader of a written publication has a better opportunity of identifying fact from comment than does the viewer of a television program. Indeed, he called it in aid, submitting that the judge below had rightly found that 'a normal reading of the book creates a strikingly clear impression' - that is, that what was said was stated as fact. The book was described as 'the definitive narrative account of what actually happened - not a version among competing versions, and not a version that is presented as one that the reader can accept or reject'. The book confidently asserted that Ramage 'built then rehearsed his case at the pub'; and that, after three hours, 'Ramage was ready to tell his story'. The author's use of rhetorical devices 'could only go to make the charge that the respondent had, in truth, played a central role in manufacturing the defence of provocation for Mr Ramage'. Nothing was recognisably presented as a comment. If the book did contain expressions of opinion, critically, they rested on an assertion of fact, that Ramage concocted his defence of provocation, and that he was assisted in doing so by the respondent at the Harp Hotel. It could not be said that the allegation of criminality showed the statement to be comment, because, unlike the situation in State of New South Wales v I G Index PLC,[10] the allegation was that the respondent had engaged in a specific criminal act - that is, a conspiracy to pervert the course of justice.

34 A good deal of the argument orally advanced for the appellants bore little resemblance to the way in which the matter was argued below, or as it was articulated in the outline of submissions. But if the new points concerned the correct approach in law to the appellants' application, they should be considered. They were of that character and so they should be considered. But in my opinion they should be rejected.

35 First, in the end, appellants' counsel scarcely submitted that it was not open to a judge to refuse an application to amend (the counterpart to an application to strike out) in a case in which the proposed pleading would be futile in the sense that, if it had appeared in the original pleading, it would be struck out. A passage in Pervan v North Queensland Newspaper Co Ltd[11] to which counsel referred when initially arguing a contrary proposition did not support it; and as counsel accepted, in recent times the High Court has affirmed the striking out of a fair comment defence: Channel Seven Adelaide Pty Ltd v Manock.[12]

36 Second, the bedrock of the alleged defamation lies in the alleged meanings that the respondent manufactured a defence of provocation for Ramage, and that he, in combination with Ramage and/or the solicitor Pica, agreed to manufacture a defence of provocation (for convenience, I will refer to these two meanings as the 'central meanings'). What follows, in paragraph 7 of the Amended Statement of Claim, is characterisation of that conduct in terms not used in the publication - that is, that it constituted a perversion or prevention of the course of justice, a serious breach of barristers' ethics and an act of professional misconduct. If the central meanings were established, the characterisation would follow as night follows day. The proposed amended defence reflects that reality. By particular (i) to paragraph 11 the appellants seek to plead that the respondent 'in combination with Stephen Pica assisted Ramage to manufacture a defence of provocation and thereby to pervert the course of justice and in so doing committed a breach of barristers' ethics and an act of unsatisfactory professional conduct'. Even if that characterisation could arguably be characterised as comment - certainly it is a far cry from a value judgment -the proposition that a meaning pleaded as comment can only be met by a defence of fair comment does not mean that what I have called the bedrock or central meanings must have been comment, this producing the circular reasoning that the proposed paragraph 11 was thereby demonstrated to have been comment. Rather, as the argument proceeded below, the question to be decided is whether a reasonable jury could find that an ordinary reasonable reader of the publication could conclude that the substance of alleged comment as sought to be pleaded by the appellants, focusing as it does upon the respondent in combination with Pica assisting Ramage to manufacture a defence of provocation, constituted comment by the author, rather than fact.

37 The learned judge stated, as I have said, that he had read the entire book in order to determine whether what the appellants sought to allege was a comment was capable by being understood by a jury to be a comment. It was not in debate that he was entitled to do so in order to establish context.

38 His Honour concluded that the central theme of the book was that Ramage had given a fabricated account of events which opened up a provocation defence. I agree.

39 His Honour further concluded that the book asserted - I put to one side, for the moment, whether as fact or comment - that the respondent, together with the solicitor Pica, had assisted in the manufacture of that false defence. Again, with respect, I consider that a contrary conclusion would not be open.

40 His Honour next concluded that if, particularly, the third passage relied upon by the respondent - that another accused man, Yasso 'had no lawyer to help him manufacture a provocation defence' - was considered by a jury to convey what I have called the central meanings, then standing in isolation, it could only be construed as a statement of fact - that is, that Ramage did have a lawyer, who had assisted him to do so. I agree.

41 Then his Honour went to context. He held that it could not entitle a conclusion (that is, by a reasonable jury properly instructed and thus considering the matter from the standpoint of the ordinary reasonable reader) that the third passage was other than a statement of fact. The book purported to set out the true story of Mrs Ramage's killing, stating, inter alia, that 'the next three hours were spent ensuing that his interview would not be incriminating', how 'the killer then rehearsed his case at the pub', and that after three hours ' Ramage was ready to tell that story'. I will return to this conclusion.

42 His Honour accepted that, taken in isolation, the first passage relied upon by the respondent could be said to be argumentative - this being capable of interpretation as comment. But he pointed out that it was surrounded by passages which had the appearance of a recitation of fact. What he there said was, with respect, plainly correct.

43 The words used are not decisive whether a publication is stating a fact or making a comment. As Gummow, Hayne and Heydon JJ stated in Channel Seven Adelaide Pty Ltd v Manock ,[13] 'a comment can be made by stating a value judgment, and can also be made by stating a fact if it is a deduction from other facts'. But that is not to say that every product of deduction which is stated as a fact will arguably be capable of being construed as comment.[14] So also, a statement which, only focusing upon its words, has the appearance of comment may be discerned, unequivocally, to be a statement of fact.[15] Further again, a publication may impute an unstated meaning which, although it could only be reached by a process of deduction, nonetheless constitutes the factual sting conveyed by facts stated; and so, absent anything to indicate that it represented an expression of opinion, a jury could not reasonably conclude that the meaning conveyed constituted an expression of opinion.[16] These propositions underline what has often been judicially stated, that drawing the distinction between fact and comment can present difficulties; and it is with that in mind, and as well the great desirability of confiding to the finder of fact the task of fact-finding, that a fair comment defence should only be struck out, or not permitted, in the clearest case.

44 In this case, the ordinary reasonable reader would know that the author was not present at the Harp Hotel on the night of the killing of Mrs Ramage and would know that none of those present had confided to the author what was said. The reader would therefore know, assuming that the publication conveyed the meaning that the respondent has assisted in the manufacture of a provocation defence for Ramage, that this represented a conclusion reached or inference drawn by the author.

45 But that is not decisive whether, arguably, the meaning was expressed as opinion. Further, as the judge said, one of the passages relied upon by the respondent, read in isolation, could only be construed as a statement of fact. Context is of importance in determining whether a reasonable jury, adopting the correct standpoint, could reasonably conclude that the critical meaning was comment. That takes me to his Honour's conclusions which I noted at [41] and [42].

46 Having, like his Honour, read the book, I agree with his conclusions. I consider that, read in context, what might have been presented as opinion was presented as fact; and that it would not be open to a reasonable jury to conclude otherwise. I agree with the submission for the respondent that insofar as the book contains any expressions of opinion, they are founded upon an asserted fact - that is, that Ramage concocted his defence of provocation, and that he was assisted in doing so by the respondent at the Harp Hotel.

47 The meanings pleaded by the respondent include the characterisation of his conduct as involving the commission of a particular criminal offence. In The Herald & Weekly Times Pty Ltd v Buckley,[17] the plaintiff pleaded meanings that his conduct had been illicit or criminal although the impugned publication made no explicit assertion to that effect. The Court observed that such meanings, if conveyed, were 'inherently judgmental', and so were indicative that the meanings were (as the defendants pleaded) comment.[18] But that cannot be extrapolated in the appellants' favour in the present case. For, as the Court there observed, 'to some extent "criminality" conveys the idea of a contravention of the criminal law, and thus it may connote an objectively established contravention of the law'.[19] In the present case, according to the meanings pleaded by the respondent, particular conduct necessarily connoting a particular offence against the criminal law (rather than unstated criminality) was conveyed by the publication. Even if the characterisation could be construed as comment, the bedrock was what was presented as the fact of the particular conduct.

48 I further agree with the learned judge that if the meanings upon which the appellants rely could conceivably be regarded as comment, such comment was in any event so intermingled with matters of fact as to be indistinguishable from those facts. A jury would be obliged so to conclude. Even limiting consideration to the passages in the publication specifically relied upon by the parties - as on the one hand founding the meanings alleged, and on the other hand founding what is said to have been comment - there is a melange of facts (actual or asserted), speculation and rhetoric.

49 Counsel for the appellants submitted in writing that the learned judge had reasoned that a jury would be compelled to conclude, if the publication made a comment that the respondent, in combination with Pica, had assisted Ramage to manufacture a defence of provocation, that such comment was not only based upon the seven facts set out in particular (iii) to paragraph 11 of the proposed amended defence,[20] but rather eight facts; and that the eighth fact was not true. He argued that the judge's reasoning did not follow:

An assertion to the effect that Ramage had intentionally concealed the respondent's identity both from the police and at trial does not logically say anything at all about whether the respondent had earlier combined with Stephen Pica to manufacture a defence of provocation for him. The ordinary reader might have concluded from the book, for example, that Ramage had decided, on his own or on the advice of some third party, and without any input from the respondent, to conceal the respondent's identity from the police and at trial. That Ramage might not, in fact, have intentionally concealed the respondent's identity from the police and at trial thus has no inevitable bearing upon the sustainability of the alleged comment in relation to the respondent. There is no suggestion at all in the book that the respondent might have told Ramage to conceal his identity from the police and at trial.

50 In any event, counsel submitted, the matter ought to be left to the jury for determination.

51 Pausing for a moment, the so-called eighth fact is actually two asserted facts: first, that in his record of interview Ramage carefully avoided identifying the respondent or telling the police that he was a barrister; and second, that there was no mention of the respondent's name in the course of a three week trial.

52 Returning to the narrative, in oral submissions counsel advanced two new and additional arguments. He submitted that it was wrong to say that the first aspect of the eighth fact was untrue; and he argued that Lowe v Associated Newspapers Ltd[21] is authority for the proposition that it is enough that the facts stated are 'substantially right'. This, he submitted, was the case here.

53 One thing that counsel for the appellants did not submit was that the judge had been confined by the proposed pleading to the seven facts there stated in considering whether it would be open to a jury to conclude that, if the central meaning was conveyed, it was based upon facts truly stated.

54 Counsel for the respondent submitted in writing that it had been uncontradicted below that the eighth fact was not truly stated. A jury would be obliged to conclude that such fact was integral to the allegation of concoction. That was the more so when the third passage set out in paragraph 6 of the amended statement of claim and the first passage relied upon in particular (ii)(B) to paragraph 11 of the proposed amended defence - which passages were said by the appellants to embody the alleged comment - contained (one in each case) the two aspects of the eighth fact.

55 Orally, counsel for the respondent submitted that the point being made by the first of those passages was this: the answer to the respondent's statement to the author that if the police thought he had something to offer they would have spoken to him was that Ramage had not identified him in his record of interview. Thus the police had been unable to find out what had gone on at the hotel. Further, the alleged concealment gave rise to the inference that there was a guilty secret to hide.

56 In my opinion the learned judge was correct to conclude that it would be impossible for a jury to conclude that the assumed comment was based upon facts truly stated. The submission for the appellants that the eighth fact was an irrelevance could not be accepted. The purposes of the author in identifying the fact were clear. Its two aspects were called in aid to demonstrate a pattern of concealment, beginning on the night of the killing and continuing to trial, of the involvement of the respondent on that night; the concealment bespeaking a guilty secret - concoction of a false defence of provocation. Further, as the judge below said, the author was asserting that Ramage was at pains to conceal from the police and the jury that he had an experienced Queen's Counsel assist him to put together his defence of provocation, in order to enhance the credibility and apparent spontaneity of his account. Contrary to the submission for the appellants, the eighth fact had a logical connection with the alleged comment that the respondent had earlier assisted to manufacture a defence of provocation. Further, the submission for the appellants that the author did not assert that the respondent played any part in the concealment, whilst true, is of no present relevance.

57 I next consider that it would not be open to a jury to conclude otherwise that the eighth fact was not truly stated. The faint attempt by appellants' counsel to suggest the contrary in respect of the first part aspect came to nothing. The respondent's fairly unusual surname (it is unnecessary to express any view whether his first name was also fairly unusual, or whether the combination of first name and surname was unusual) was revealed to the police; the most that could be said is that Ramage did not identify him as a lawyer. The second aspect involved an unarguably false assertion of fact.

58 That takes me to the submission founded on Lowe v Associated Newspapers Ltd,[22] a decision which did not escape criticism in Manock.[23] In my opinion, the passage cited by counsel for the appellants does not make good the proposition for which he contended. Lowe was not concerned with the question whether, if facts are stated in an impugned publication, the defendant must justify their accuracy. Each fact stated in an impugned publication upon which an asserted comment is claimed to rest must be made good. That is so even if - which I consider was not the case with the eighth fact - the fact was 'comparatively unimportant'.[24]

Could a jury reasonably conclude that the alleged comment satisfied the objective test of honesty for fair comment?

... the test of fairness was appropriately described, 120 years ago, by Lord Esher MR in Merivale v Carson,[25] in the following terms:

'The question which the jury must consider is this - would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said?'[26]

The question whether a comment is fair is essentially an issue for the jury. If the alleged comment in this case were based on the seven facts identified in the particulars to the amendment sought by the defendants, that comment would seem to involve a substantial 'quantum leap' of logic. Nonetheless, I do not consider that it would not be open to a jury to reasonably conclude that the comment was fair, in the sense defined above. Taking into account the broad parameters of the concept of fairness in that context, it would be a matter for the jury to determine, on all the facts, whether that comment was 'fair'.

60 It is not in debate that his Honour stated that law correctly.[27]

61 By his Notice of Contention, the respondent sought to sustain the order below on the ground that his Honour erred in applying the facts to the law. In this Court, respondent's counsel submitted that although every latitude must be given to opinion and prejudice, nonetheless the question is whether any fair person would have made such a comment. He submitted that the comment was demonstrably unfair because it depended upon additional and false assertions of fact being added to the seven which the appellants sought to plead were the basis for the (assumed) comment. He added that the seven facts relied upon by the appellants did not, in themselves, enable a conclusion that the assumed comment was fair.

62 Counsel for the appellants submitted that there was 'no substance' to the matter raised in the Notice of Contention. They submitted that -

The limits of criticism permitted for the purposes of a defence of fair comment are exceedingly wide. A comment will be fair if it could honestly be held by a fair-minded person, even if it is grossly exaggerated or prejudiced, wrong or violent, irrational, stupid or obstinate, expressed in ironical, bitter or even extravagant language, or uncourteous, or even offensive or vituperative.

and

Whether a comment is unfair is quintessentially a matter for the tribunal of fact; in this case, the jury. It ought not be determined on an interlocutory application.

63 The appellants seek to plead that the comment which they assert was made was based upon seven facts. The learned judge below said that so to conclude, upon those facts, 'would seem to involve a substantial "quantum leap" of logic'.

64 The author's hypothesis is that the defence of provocation was a concoction, in the manufacture of which the respondent was involved. The starting point of that hypothesis is that the true facts of the matter did not admit of a provocation defence, so that the defence was in fact false. There is perhaps a question whether, if the appellants had sought to allege that the true facts did not admit of a provocation defence, they would have strayed into the area of justification. But however that may be, I consider that the appellants' failure to allege that the true facts did not admit of the defence of provocation, as a fact supporting the alleged comment of concoction, presents a major obstacle to argument that the comment was fair.

65 The provocative conduct alleged by Ramage took place when only he and his victim were present. So Ramage's account could not be expressly contradicted. But that is far from saying that other circumstances might not be called in aid to justify a conclusion that the true facts meant that his account must have been false, the first step to a conclusion that the respondent assisted Ramage to manufacture that false account. Such circumstances could include, for instance, the prior relationship between Ramage and his late wife, and his conduct subsequent to the killing. But in

my provisional opinion, the seven facts relied upon as the basis for the comment, considered alone, would be incapable of making out the hypothesis. They were consistent with, but formed no basis for the hypothesis. Something more was required. If the eighth fact had been true, it might have been that something. Again, there might be other facts stated in the book which, together with the seven facts, would enable a jury to conclude that the assumed comment was fair. But counsel for the appellants did not condescend to say what those facts might be.

66 If it had been necessary to decide the point, as at present advised I would have concluded, based upon the argument presented, that the respondent had made good the matter raised by the Notice of Contention. But I need not express a final opinion upon the matter.

67 As I said earlier, I would refuse the application.

68 I agree that the application should be refused, for the reasons given by Ashley JA.

69 The proposed defence sought to plead by way of fair comment that the respondent assisted Ramage to manufacture the defence of provocation. I agree for the reasons given by Kaye J and Ashley JA that it would not be open to a jury to conclude, taking the viewpoint of the ordinary reasonable reader, that any comment was made, or if it was, that it was based upon facts truly stated. I would therefore refuse the application.

70 I agree with Ashley JA that the failure of the appellant to allege that a defence

of provocation was precluded by the true facts so as to support the allegation of a joint concoction stands in the way of the assertion that the comment was fair. It is also my tentative view, that the matter raised in the Notice of Contention has substance but as it is not necessary to do so, I refrain from expressing a concluded view.

[1] For the sake of convenience, and intending no disrespect, I shall refer to him hereafter simply as 'his Honour' or 'the judge'.

[2] [2007] VSCA 314; (2007) 18 VR 562.

[3] [2008] VSC 215 [23].

[5] It was consistent also with what this Court recently said in The Herald & Weekly Times Pty Ltd v Buckley [2009] VSCA 75.

[6] [2008] VSC 215 [37].

[7] Lewis v Daily Telegraph Limited [1964] AC 234, 277 (Lord Devlin).

[10] [2007] VSCA 212; (2007) 17 VR 87.

[11] [1993] HCA 64; (1993) 178 CLR 309, 317 (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ).

[12] [2007] HCA 60; (2007) 232 CLR 245. The Herald and Weekly Times Ltd and another v Buckley [2009] VSCA 75 is another recent instance of an appellate court dealing with a strike out application.

[13] [2007] HCA 60; (2007) 232 CLR 245, 263 [35].

[14] See, for instance, The Herald & Weekly Times Ltd & Anor v Buckley [2009] VSCA 75, [49]-[58].

[17] [2009] VSCA 75.

[20] The seven facts stated alleged to be true in substance and in fact, and stated in the book, were as follows:

'(A) Ramage killed his wife and buried her in a shallow grave on 21 July 2003 (pages 30-3, 39-40);

(B) Later the same day, Ramage telephoned the Plaintiff and had a conversation with him lasting about one minute and twenty-one seconds (page 50);

(C) As a result of that conversation, the Plaintiff agreed to meet Ramage in the gaming room of the Harp Hotel in Kew (page 50);

(D) Later that evening the Plaintiff had a conversation with Ramage in the gaming room at the Harp Hotel in Kew (page 52) in the course of which he telephoned a solicitor, Stephen Pica, before moving to another table (page 52);

(E) Later the same evening Ramage, accompanied by Pica, turned himself into the police (page 53);

(F) Ramage gave a statement to the Police which formed the foundation of a defence of provocation (pages 60-63); and

(G) the Plaintiff refused to answer the First Defendant's questions about what he had discussed with Ramage at the Harp Hotel on 21 July 2003 (pages 74-5).

[21] [2006] EWHC 320; [2007] QB 580, 594 (Eady J).

[22] [2006] EWHC 320; [2007] QB 580.

[23] Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245, 273-276 [52]-[56] (Gummow, Hayne and Heydon JJ).

[24] See, The Herald & Weekly Times Ltd & Anor v Popovic [2003] VSCA 161; (2003) 9 VR 1, 56 [269]-[270] (Gillard AJA, with whom Winneke ACJ and Warren AJA relevantly agreed).

[25] (1887) 20 QBD 275, 281.

[26] See also New South Wales v IG Index PLC [2007] VSCA 212; (2007) 17 VR 87, [53] (Nettle JA); John Fairfax Publications Pty Ltd v O'Shane [2005] NSWCA 164; (2005) Aust Torts Reports 81-789, [16] (Giles JA).

[27] See, for instance, the observations of Gillard AJA in The Herald & Weekly Times Ltd and Anor v Popovic [2003] VSCA 161; (2003) 9 VR 1, 54-55 [261]-[265].