Defamation - Application to strike out defences - Adequacy of fair comment plea - Whether substance of comment must be pleaded - To what extent facts extraneous to those in or indicated by words complained of can be pleaded - Adequacy of qualified privilege plea - Turns on own facts

Criminal Code 1913 (WA), s 355(1), s 355(3), s 355(4)

Rules of the Supreme Court 1971, O 20 r 9, O 20 r 13A

Bainton v John Fairfax & Sons Ltd (1991) A Tort Rep 81-143

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519

Gumina v Williams (No 2) (1990) 3 WAR 351

Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699

Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365

Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728

Lyon v Daily Telepgraph Ltd [1943] KB 746

Morgan v John Fairfax & Sons Ltd (No 2) (1991) 23 NSWLR 374

Nationwide News Pty Ltd v International Finance & Investment Pty Ltd & Anor [1999] WASCA 95

New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340

Reynolds v Nationwide News Pty Ltd [2001] WASC 90

Seary v Molomby (1999) A Tort Rep 81-536; [1999] NSWSC 981

Vitale v Bednall [2001] WASC 278

1 HASLUCK J: This is an application by the plaintiffs in a defamation claim to strike out certain paragraphs of the statements of defence of the first and third defendants. The relevant chambers summons in each case sought an extension of time within which to bring the application but in the absence of controversy concerning this aspect of the matter the extension of time applied for will be allowed.

2 Various procedural issues have been raised in the course of these proceedings and it will therefore be convenient to begin by looking briefly at the history of the matter.

3 The first plaintiff is the Director of Public Prosecutions. The second plaintiff is a legal practitioner employed by the DPP who acted as prosecutor in a case brought against the first defendant, Mr Hughes, in the Court of Petty Sessions at Broome.

4 The plaintiffs advance a claim in defamation arising out of certain observations allegedly made by Mr Hughes on or about 10 May 2000 in the course of a radio broadcast by the ABC and on or about the same date in the course of a television broadcast by the Nine Network. The observations are said to have been made by Mr Hughes after his acquittal of charges of dangerous driving.

5 More particularly, the plaintiffs complain of remarks made by Mr Hughes in the course of each broadcast as to the way in which the case against him was handled by the prosecution. The plaintiffs say that the second and third defendants are liable to the plaintiffs as broadcasters for republishing the first defendant's remarks.

6 A writ of summons was issued by the plaintiffs on 12 May 2000. A lengthy statement of claim filed and served subsequently by the plaintiffs was subjected to various challenges which were dealt with by me in Cock & Anor v Hughes & Ors [2001] WASC 24 and Cock & Anor v Hughes & Ors [2001] WASC 151.

7 In the reasons for judgment provided on those occasions I summarised the nature of the claims reflected in the plaintiffs' proposed statement of claim.

8 I said that the claims being advanced by the plaintiffs were (a) a claim against Mr Hughes arising out of the Bartlett ABC radio broadcast; (b) a further claim against Mr Hughes arising out of the Bartlett ABC radio broadcast, this being referable to a publication to the radio audience in circumstances where such a publication was a foreseeable consequence of the interview; (c) a claim against the ABC arising out of the radio broadcast, this being referable to a republication of the remarks in question; (d) a claim against Mr Hughes arising out of the Grimshaw Nine Network television broadcast; (e) a claim against the third defendant arising out of the television broadcast, this being referable to a republication of the first defendant's allegedly defamatory remarks.

9 For ease of reference, I will henceforth refer to the description of the pleading I have just given as "the plaintiffs' claim". Put shortly, the plaintiffs say that the words complained of contain various imputations to the effect that in the conduct of the prosecution case the plaintiffs abused their official positions in order to advance their careers.

10 The plaintiffs eventually filed and served a substituted statement of claim dated 18 September 2001 which reflected the plaintiffs' claim and sought relief by way of damages. I will call this "the statement of claim". The defendants were required to plead to the statement of claim and proceeded to do so. The position of the first defendant is set out in the defence of the first defendant dated 9 October 2001. The second defendant has filed a statement of defence dated 2 November 2001. The position of the third defendant is reflected in the third defendant's statement of defence dated 31 October 2001.

11 The plaintiffs have now applied to strike out various paragraphs of the first defendant's statement of defence and of the third defendant's defence. The paragraphs in question are principally concerned with pleas of fair comment and qualified privilege.

12 In the first defendant's statement of defence Mr Hughes denies that the words complained of were defamatory of the plaintiffs and denies that he is liable to the plaintiffs as alleged or at all.

13 In par 15 of his statement of defence Mr Hughes says that if (which is denied) the matter complained of was defamatory of the plaintiffs, it was fair comment on a matter of public interest, namely, a prosecution brought against Mr Hughes which had been heard before the Court of Petty Sessions at Broome on 8 May 2000 and 9 May 2000 ("the par 15 fair comment plea").

14 The particulars set out in support of the par 15 fair comment plea appear in sub-paragraphs 1 to 39 of par 15. I will not traverse these particulars in their entirety. However, in essence, reference is made to various supposed shortcomings in the prosecution case including an alleged lack of integrity on the part of the prosecution witnesses and the fact that the learned Magistrate upheld a submission that there was no case to answer. Reference is made also to injuries sustained by Mr Hughes in the accident. It appears from sub-paragraph 39 that at the time of the accident and at the time of the trial Mr Hughes was ordinarily resident in New York and was therefore required to travel from New York to Broome for the trial.

15 Paragraphs 16 to 18 inclusive of the first defendant's defence set up a plea of fair comment based on various provisions of the Criminal Code of Western Australia, namely, s 355(1) (par 16), s 355(3) (par 17) and s 355(4) (par 18). The par 15 particulars are repeated in respect of these further pleas.

16 At par 19 Mr Hughes goes on to say, in the alternative, that if (which is denied) the matter complained of was defamatory of the plaintiffs, the matter was published on an occasion of qualified privilege.

17 Particulars are provided in support of the plea of qualified privilege. By par 19(1) Mr Hughes repeats the par 15 particulars provided in support of the fair comment plea. He goes on to say that the matter complained of was a communication on a government or political matter (par 19(2)); the first defendant was under a duty to or alternatively had an interest in disseminating the contents of the matter complained of and the recipient had an interest in receiving the same (par 19(3)); the publication was reasonable in the circumstances (par 19(4)). Particulars are provided in support of the latter plea in par 19(4)(A) to (F). In essence, it is said that the trial of the first defendant had been the subject of extensive publicity and the first defendant believed on reasonable grounds that the public at large were entitled to be informed of the outcome of the prosecution.

18 I pause to say that upon one reading of par 19 two discrete lines of defence appear to be advanced; first, in par 19(2) the so-called Lange defence concerning political discussion; second, in par 19(3), the conventional defence of qualified privilege. I was assured, however, that the first defendant relies only upon the Lange defence and that no general common law qualified privilege defence is pleaded (see par 34 of the first defendant's written submissions). I will henceforth proceed upon that basis. I will come to the legal principles bearing upon this line of defence in due course.

19 The conversation with Ms Tracey Grimshaw is dealt with in par 21 to par 30 of the first defendant's statement of defence. Mr Hughes sets up a plea of fair comment on a matter of public interest in par 31 to par 34 of the statement of defence and, again, relies upon certain provisions of the Criminal Code and the par 15 particulars previously provided. In the alternative, at par 35, he says that the matter was published on an occasion of qualified privilege with the plea in that regard replicating his earlier plea of qualified privilege.

20 In par 36 to par 55 of the first defendant's statement of defence matters are raised with a view to defeating the claim in so far as it is alleged that the words complained of were republished outside Western Australia. Various defences referable to the law in other States of Australia are adverted to in this portion of the pleading. I will return to this aspect of the matter later.

21 The third defendant by its statement of defence pleads only to those paragraphs of the statement of claim affecting the third defendant. The statement of defence contains a denial of liability. More particularly, it is said in par 9 of the third defendant's defence that the television publication constituted a fair comment on matters of public interest in that the words complained of were an expression of the first defendant's opinion concerning the plaintiffs. The third defendant then purports to provide particulars of facts upon which the opinion was based and particulars of matters of public interest ("the par 9 particulars").

22 The par 9 particulars of facts upon which the opinion was based are expressed in these terms:

"(a) The interviewer (Ms Tracey Grimshaw) stated at the beginning of the Third Defendant's Television Publication '... late yesterday a Broome Magistrate dismissed charges of dangerous driving against art critic Robert Hughes, ruling there was insufficient evidence...';

(b) A report in 'The West Australian' newspaper entitled 'Injured Critic faces court on a crutch' on 9 May 2000 referred to the charge against the First Defendant of dangerous driving;

(c) A report in 'The West Australia' newspaper entitled 'Hughes cleared as DPP blunders' on 10 May 2000 referred to the hearing of the charge against the First Defendant of dangerous driving being dismissed."

23 The application by the plaintiffs to strike out various paragraphs of these statements of defence is made pursuant to O 20 r 19. That Rule provides that the Court may strike out any pleading on the ground that it discloses no reasonable cause of defence or it may prejudice, embarrass or delay the fair trial of the action. The convention is that the Court will not go outside the pleadings and will assume that evidence can be adduced to substantiate the allegations in the relevant pleading.

24 For a plea in the defence to be struck out the plaintiff's must establish that the plea is so obviously untenable it cannot possibly succeed or is manifestly groundless. Great care must be exercised to ensure that the party whose plea is attacked is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. General Steel Industries Inc v Commissioner for Railways of New South Wales [1964] HCA 69; (1964) 112 CLR 125 at 130.

25 It follows from this that the defendants are required to plead sufficient facts and matters to bring the case they wish to advance within the relevant rules of law. The challenge to the statements of defence in the present case was directed to the pleas of fair comment and privilege and it will therefore be useful to provide an overview of the relevant legal principles as a touchstone against which the applications to strike out can be tested.

26 It is a defence to an action for defamation at common law for the defendant to prove that the words complained of were published by him as fair comment on a matter of public interest. The defence can be defeated, however, by proof that the defendant was actuated by express malice or an improper purpose.

27 It is a necessary ingredient of fair comment that the comment shall be based on facts which are either stated by the commentator or indicated by him with sufficient clarity to enable to reader or listener to ascertain the matter on which the comment is being made. A defendant cannot defend a statement as comment, however, if he has not set out the facts on which he based the statement or, at the least, indicated in general terms what those facts were. Kemsley v Foot [1952] AC 345.

28 The fundamental rule is that the defence applies to comment but not to imputations of fact. If the imputation is one of fact the defence must be justification or privilege. However, the matter is complicated for two reasons: first, there may be difficulty in distinguishing comment and fact; secondly, a statement of fact which is an inference from other facts stated or referred to may be a comment for the purposes of the defence. If a defamatory allegation is to be defended as fair comment it must be recognisable by the ordinary, reasonable reader as comment and the key to this is whether it is supported by facts, stated or indicated, upon which, as comment, it may be based. Gatley on Liable and Slander (9th ed) par 12.6.

29 Reasoning of this kind has given rise to certain rules of pleading including the requirements that the defendant must identify the passage in the publication which he seeks to defend as fair comment and must give particulars of all the facts upon which the comment is based. Gatley (supra) at par 27.12. Requirements of this kind are reflected in O 20 r 13A of the Rules of the Supreme Court in this State. I note in passing that the provisions of the Criminal Code concerning fair comment, broadly described, are consistent with the common law position. Likewise, the requirements of O 20 r 13A of the Rules of the Supreme Court reflect the position at common law.

30 It is against this background that I must now turn to that part of the plaintiffs' chamber summons which is directed to striking out certain paragraphs of the first defendant's statement of defence concerning fair comment.

31 The plaintiffs say in regard to the plea of fair comment reflected in par 15 that the plea as it presently stands does not identify the substance of the comment to which it is alleged the defence applies. Additionally, the matters set out in sub-paragraphs 1 to 39 of par 15 as particulars are not matters upon which a fair comment consistent with the imputations pleaded by the plaintiffs could arise. Further, most of the matters comprising the particulars were not stated or indicated in the publication complained of and therefore cannot be relied on to sustain the defence.

32 Counsel for the plaintiffs submitted that for all these reasons the defence of fair comment reflected in par 15 does not disclose a reasonable ground of defence and should be struck out.

33 Before I turn to the question of whether the substance of the comment should be identified, I have to say that, in my view, par 15 in its present form should be struck out as embarrassing in any event. The par 15 particulars are described simply as "particulars" and it is not clear whether these purport to be particulars directed to public interest issue or whether they purport to be particulars of fact upon which the comment is said to be based. It is significant, by way of contrast that this distinction is set out clearly in the third defendant's defence.

34 Counsel for the plaintiffs placed reliance upon Anderson v Nationwide News Pty Ltd [2001] VSC 335 in support of his principal contention. That was a case in which the defamatory words were said to convey an allegation of an ulterior purpose in the plaintiff's promotion of the BHP merger with Billiton. Ashley J was of the view that pursuant to the ordinary pleading rules a party is obliged to spell out the case which the opposing party has to meet. In the case of a fair comment plea this will require that the substance of what is said to be comment should be made clear.

35 At a later stage, in response to the ruling of Ashley J, the defendant served particulars in which the substance of the comment was said to be that the plaintiff supported a merger which did not favour BHP and its shareholders. In Anderson v Nationwide News Pty Ltd [2002] VSC 18 Bongiorno J then proceeded to strike out the fair comment defence on the grounds that the comment, even if fair, went only to an alleged lack of business judgment and did not address the sting of the libel, namely, that the plaintiff allegedly acted pursuant to an ulterior motive.

36 The effect of the Anderson cases is that a defence of fair comment is untenable and bad at law unless it pertains specifically to the defamatory meanings pleaded by the plaintiff or a permissible variation thereof. It follows, as a corollary, that a defendant is obliged to disclose in the defence the substance of the comment relied upon. This is not (save for an exceptional case) the same as setting out as a direct quotation the passages of the publication said to be the alleged comment. It is the sense and substance of the comment and its relation to the plaintiffs' case and imputations that must be disclosed in a defence. Accordingly, a plea of fair comment will not be a proper plea if it is a plea simply to an entire publication. It will not raise a reasonable defence if it does not identify the substance of the "comment", so that the relationship of that comment to the plaintiffs' case can be determined (as well as the fairness of the comment).

37 It was therefore incumbent upon a defendant, counsel for the plaintiffs submitted, to identify whether it is alleged that there were a number of comments arising from the article or a single comment. One must specify the precise sub stratum of facts upon which the comment is based, those facts being found within the body of the publication. If those facts relied upon are not to be found in the publication, then their source and the basis for asserting that the recipient of the publication must have had those facts communicated to him or her when receiving the publication, must be pleaded or particularized.

38 Counsel for the plaintiffs went on to submit that par 15 of the first defendant's statement of defence failed to state the sense and substance of the comment. It was simply a plea as to the entire publication and amounted to an assertion that the entire publication was "fair comment" without providing the required detail as to the sense and substance of the comment. In other words, the first defendant's fair comment plea in its present form was so broadly expressed that it did not really address the critical issue to be resolved by the Court, that is to say, whether it could be said fairly of the plaintiffs that they had abused their powers in the conduct of the prosecution. For example, it might be fair to observe that the charge was dismissed because the prosecution case was not presented efficiently, but unfair to go further and say that the prosecution team was guilty of impropriety. These two forms of comment are quite different. The plaintiffs were entitled to know the case they had to meet. In circumstances where the plaintiffs contended that the words complained of added up to an allegation of impropriety, a defence of fair comment had to be supported by particulars directed to that issue.

39 Counsel for the plaintiffs submitted further that if the 39 sub-paragraphs containing narrative style particulars were intended to be particulars of the facts the first defendant intended to rely upon in order to support the alleged comment then the majority of those facts were not contained within the first defendant's publications. They could not be said to be indicated in the same because no nexus was pleaded or particularized which would demonstrate that the facts were incorporated by reference or otherwise into the first defendant's publication. Most of the facts did not and could not provide support for any fair comment which could be in answer to the plaintiffs' claim.

40 It was said on behalf of the plaintiffs, in summary, that par 15 failed to disclose a reasonable cause of action and contained embarrassing and prejudicial material which had a tendency to prejudice the fair trial of the action. It was said that the defects just described flowed through to par 16, par 17 and par 18 of the defence because the provisions of the Criminal Code, like the position at common law, embraced the requirement of congruity between facts contained within or indicated by the material complained of and the comment that was said to be fair.

41 Counsel for the defendants sought to answer these contentions by reliance upon Moir v Flint & Anor [2002] WASC 48. The effect of that case was said to be that the defendant was not obliged to state the substance of the comment, although there may be occasions in certain limited circumstances where it is appropriate.

42 Counsel for the first defendant submitted that, effectively, McLure J in Moir v Flint (supra) declined to follow Anderson v Nationwide News Pty Ltd (supra) on the question of whether particulars of the substance of the fair comment must be provided by a defendant. Moreover, McLure J noted that the submission before the Court in Anderson v Nationwide News Pty Ltd had to be seen in the light of what might be regarded as the narrowing of the 'Polly Peck' defence in Victoria as a result of the decision of the Victorian Court of Appeal in David Syme Co Ltd v Hore-Lacey [2000] VSCA 24; (2000) 1 VR 667.

43 Counsel for the first defendant went on to submit that there were additional reasons why the decision in Anderson v Nationwide News Pty Ltd (supra) should not be followed. It would add a whole new layer of complexity to defamation pleading. At the end of the trial it is for the tribunal of fact to determine the meaning of the matter complained of. It would be prejudicial and artificial for a defendant to be forced to conduct only a narrow fair comment defence directed specifically to whatever (possibly extravagant) imputations contended for by the plaintiff. It is important that the entitlement to plead the fair comment defence not be unduly constrained by the imputations the plaintiff chooses to contend for.

44 I note that McLure J in Moir v Flint (supra) put the position in this way at par 29 of her judgment:

"It is not suggested that what the defendants have identified as fair comment goes outside the realms of the imputations capable of arising from the words complained of. The only question in issue in this case is whether the defendant should be obliged to state the substance of the comment. I accept that there may be occasions when it is appropriate for a defendant to do so, for instance, where it is unclear whether it is capable of satisfying the test of fair comment by reference to the range of permissible meanings. Control Risks Ltd v New English Library Ltd [1989] 3 All ER 577; Sian Lloyd v Express Newspapers PLC [1997] EWCA CIV 1319. That is not the situation in this case. The plaintiff was not previously and is not now disadvantaged by the failure of the defendants to provide particulars of the substance of the comment."

45 When I return to the circumstances of the present case, I consider that this is one of the occasions when it is appropriate for the defendant to state the substance of the comment. In arriving at that conclusion I have to say that I am persuaded by the reasoning reflected in the two Anderson cases. Such a view is compatible with what was said by McLure J in Moir v Flint, for, in that case, her Honour allowed for such a plea in a case of complexity where clarity was required.

46 Put shortly, if the first defendant is able to persuade the Court that his observations amounted to some amiable observations about the vagaries of the justice system in the context of a prosecution that failed for lack of evidence, then the first defendant will succeed because the plaintiffs will not have made out the defamatory imputations of which they complain. If, however, it is found that the words meant that the plaintiffs had abused their positions, then it seems to me that the fair comment plea must be directed not simply to general matters but to the sting of the libel. This requires, consistently with the general rules of pleading whereby the real issues are to be identified with precision, that the first defendant set out the substance of the comment and, as I indicated earlier, the facts upon which the comment is said to be based.

47 I must now turn to the other issues concerning the first defendant's fair comment plea.

48 I referred earlier to Kemsley v Foot (supra) in which it was held that a necessary ingredient of this line of defence is that the comment must be founded on facts which are either stated by the commentator or indicated in the words used. The par 15 particulars set out in sub-paragraphs 1 to 39 include some matters which are indicated by the first defendant's words - for example, that the prosecution was dismissed - but there are many matters pleaded which are arguably not in or indicated by the words used. A question arises as to whether the first defendant is at liberty to rely upon such matters and to set them out as particulars.

49 Some elaboration of the reasoning in Kemsley v Foot was provided by McHugh J in Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309. He accepted that the defamatory comment may be based on facts which are not published in the article. In this context, he said at 340:

"To raise the defence of fair comment in this class of case, it is sufficient that either expressly or by implication the defendant has identified the subject matter of the comment. The defence is available even though the publication does not state or indicate the facts which form the basis of the comment. As long as the subject matter of the comment is identified, the defendant is entitled to the benefit of the defence of fair comment if he or she is able to prove one or more facts which will justify the comment. The difference between identifying the subject matter or substratum of fact of the comment and the facts which justify the comment is vital. The comment must indicate the subject matter or substratum of fact of the comment, but the defence does not fail because the publication does not indicate the individual facts which are the basis of the comment. It is the 'substratum' of fact not the individual facts which must be identified."

"If the facts forming the basis of the comment always had to be drawn to the reader's attention, effective comment on many subjects would be frustrated. No doubt, it is for this reason that the common law provides for a defence of fair comment if the subject matter or 'substratum of fact' of the comment is sufficiently indicated without requiring that the particular facts justifying the comment be set out or indicated. The plaintiff's protection is found in the rule that the defence will fail unless the defendant proves the truth of sufficient facts to justify the comment."

51 When I apply this reasoning to the circumstances of the present case, let me assume, for present purposes, that the par 15 particulars are intended to be particulars of facts upon which the first defendant's comment is based. It is immediately apparent that many of the facts and matters referred to were not mentioned expressly by Mr Hughes in the course of the radio interview. It is pleaded in par 15(2), however, that the matters particularised in the following sub-paragraphs "were referred to, occurred during or were evident at the trial" in Broome. Counsel for the first defendant at the hearing before me contended, consistently with the reasoning of McHugh J in Pervan's case, that the par 15 particulars comprise a sub stratum of fact which was sufficiently indicated by the first defendant's remarks during the interview, that is to say, that the case against him had been dismissed due to various inadequacies in the prosecution evidence including testimony provided by witnesses of dubious veracity.

52 I am persuaded by this line of argument. The listener, or recipient of the radio broadcast, would have been left with an impression from the words used by Mr Hughes that various unusual things had happened at trial which had led to the charge against him being dismissed. A defence of fair comment will be available if the subject matter or sub stratum of fact is indicated. I consider that, in general terms, this was done in the present case. For the purposes of a striking out application, I must assume that the matters said to comprise the sub stratum of fact will be proved at trial. It follows that I am not prepared to strike out par 15 in its entirety on this ground, although I am conscious that for the reasons previously given it will have to be re-pleaded. To my mind, the facts and matters pleaded can arguably be said to support a plea of fair comment addressed not simply to the vagaries of the legal system but to the sting of the libel, for a prosecution case that was patently weak might conceivably support an opinion that the prosecutors were pursuing some ulterior purpose, and thus acting in abuse of their official positions.

53 I am of the view, however, that some of the particulars set out in sub-paragraphs 1 to 39 of par 15 in a narrative style are not truly referable to the matters the subject of the first defendant's remarks and cannot be regarded as forming part of the sub stratum of fact indicated by the material complained of. For these reasons, I consider that the following sub-paragraphs of par 15 must be struck out upon the basis contended for by the plaintiffs, namely, (23) and (34) to (36) inclusive concerning the photographs. I am of the view that leave should be allowed to the first defendant to re-plead and I therefore will not seek to identify precisely the extent to which the particulars presently provided are extraneous to the plea of fair comment that the first defendant seeks to advance.

54 These observations are equally applicable to par 16 to par 18 of the statement of claim which rely upon certain specified provisions of the Criminal Code. I noted previously that in regard to the rules of pleading and the provision of particulars the common law position and rules of pleading are essentially applicable to a defence based upon the statutory provisions. It follows that these paragraphs of the first defendant's statement of defence will be struck out also for the reasons previously given.

55 There are, of course, significant differences between the various States of Australia in regard to the law of defamation. However, the observations I have made are generally applicable because, as appears from the passage in Gatley (supra) I referred to earlier, the distinction between fact and comment is fundamental in regard to a plea of this kind. It follows that, in my view, par 32 to par 34 and par 39 to par 49 of the statement of defence must be struck out also, but with leave to re-plead.

56 The plaintiffs sought to strike out par 9 of this defence on the grounds that in the rather complex circumstances of the present case the defence of fair comment must identify the substance of the comment to which it is alleged the defence applies. It was said that the comment in question must pertain specifically to the imputations pleaded by the plaintiffs or a permissible 'Polly Peck' variation. It was said further that the matters particularised at par 9 in support of the defence of fair comment (being the particulars I set out at an earlier stage of this judgment) were not matters upon which a fair comment consistent with the imputations pleaded could arguably arise.

57 It follows from earlier discussion that, in my view, the substance of the comment must be identified. I consider that par 9 should be struck out on this ground with leave to re-plead.

58 In this case, the particulars in support of the plea are clearly said to be particulars of facts upon which the opinion is based. It is apparent, however, that the particulars cannot support any plea of fair comment directed to the sting of the libel of which the plaintiffs complain. In other words, the particulars are directed simply to the notion that the prosecution case failed, possibly because of blunders, but do not support an assertion that the plaintiffs abused their official positions. Accordingly, par 9 is deficient on this ground and should be struck out.

Principles Applicable to Qualified Privilege

59 I must now turn to the legal principles bearing upon the issue of qualified privilege raised by the first defendant's statement of defence.

60 The common law recognizes that there are occasions upon which, on grounds of public policy and convenience, a person may make statements about another which are defamatory and in fact untrue. On such occasions of privilege a person is protected if the statement was fairly warranted by the occasion and so long as it is not shown that he made the statement with malice, that is to say, knowing it to be untrue or with some indirect or improper motive. These occasions are called occasions of qualified privilege, for the protection which the law affords is not absolute but depends on the honesty of purpose with which the defamatory statement is made. Gatley (supra) par 14.1.

61 Generally speaking, privileged occasions are those where the maker of the statement has a duty to make the statement and the recipient has a corresponding interest to receive it.

62 No privilege arises if the exigency of the situation does not warrant the protection of the common interest by the means employed. Whether the duty or interest contended for by a publisher exists must be determined upon a consideration of the surrounding circumstances and what is reasonable in those circumstances. Occasionally there may arise cases where privilege may attach to publication in a newspaper or via a broadcast but in most cases a qualified privilege will not be available because there is no community of interest between the publisher and the general public. Adam v Ward [1917] AC 309; Smith's Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279 at 304; Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632 at 658.

63 As to this aspect of the matter, I note that a mass medium defendant can avail itself of the defence in three exceptional circumstances: first, public response to public attack: Adam v Ward (supra); Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503; Kennett v Farmer [1988] VicRp 90; [1988] VR 991; second, publication of statements made by a third person pursuant to or in discharge of that person's interest or duty to inform the public about a particular matter; third, publication of information concerning government or political matters: Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

64 It is well-known that the decision of the High Court in Lange v Australian Broadcasting Corporation (supra) reflected various developments in this area of the law and marked out an extension to the defence of qualified privilege in regard to political discussion.

65 The High Court noted at 570 that the basis of the common law rule is that reciprocity of interest or duty is essential to a claim of qualified privilege at common law. Only in exceptional cases has the common law recognized an interest or duty to publish defamatory matter to the general public. However, the common law doctrine as expounded in Australia must now be seen as imposing an unreasonable restraint on that freedom of communication, especially communication concerning government and political matters, which the common convenience and welfare of society now requires.

66 Accordingly, the High Court went on to indicate at 571 that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia. Consequently, the categories of qualified privilege must now be recognized as protecting a communication made to the public on a government or political matter.

67 The High Court said further that a publisher relying on that category of qualified privilege to protect a publication that would otherwise have been held to have been made to too wide an audience must establish that its conduct in making the publication was reasonable in all the circumstances. As a general rule, a defendant's conduct in publishing defamatory material will not be reasonable unless the defendant had reasonable grounds for believing the defamatory imputation was true, took proper steps so far as they were reasonably open to verify the accuracy of the material, and did not believe the imputation to be untrue. The privilege will be defeated if the plaintiff proves that the publication was actuated by ill-will or other improper motive.

68 Against this background, I must now turn to par 19 of the first defendant's statement of defence concerning the plea of qualified privilege.

First Defendant's Plea of Qualified Privilege

69 Paragraph 19(1) alleges that the matter complained of was published on an occasion of qualified privilege. Particulars are provided in support of that assertion. This portion of the pleading purports to repeat the particulars to par 15, that is to say, the 39 sub-paragraphs providing a description of various facts and matters surrounding the dismissal of the prosecution. A question therefore arises as to whether the matters referred to are truly directed to the presence of an occasion of privilege.

70 It follows from earlier discussion that par 15 and the par 15 particulars are to be struck out, but with leave to re-plead. The logic of the first defendant's position is that these particulars represent a more precise articulation of a sub stratum of fact said to be indicated in the words complained of. It is clear that the par 15 particulars were formulated essentially as a foundation for the first defendant's plea of fair comment. When the matter is viewed in that light, it becomes difficult to see how the same facts and matters can be utilised in support of the plea that the words were uttered on an occasion of privilege. In the latter case, the particulars must be confined to those facts and matters which establish that there was a reciprocity of duty and interest in the context of a political or governmental issue and with a focus upon whether the first defendant acted reasonably. For these reasons, I consider that par 19 in its present form is embarrassing.

71 Let me test my conclusion by looking at one example, namely, the plea in par 15(23) that the first defendant took a photograph in the courtroom of the second defendant. It is difficult to see in what way such a plea establishes that the words were published on an occasion of privilege. There are other similar examples.

72 Counsel for the plaintiffs went on to submit that no attempt was made by the first defendant to plead why the publication was made in respect to a governmental or political matter, and the content of that governmental or political matter is not specified. He said further that the link to any governmental figure or political matter was too tenuous. The publication could not be regarded as being of and concerning a genuine political or governmental matter.

73 Counsel for the plaintiffs submitted further that it was incumbent upon the first defendant to plead the requirements of reasonableness, and the material facts relied upon for asserting that the publication was reasonable in all the circumstances. The requirements of reasonableness includes a requirement that the first defendant had contacted the party of and concerning whom defamatory material is sought to be published, with a view to obtaining that party's response, or providing an opportunity to comment upon the publication before hand.

74 In advancing these propositions, counsel for the plaintiffs relied upon International Financing and Investment Pty Ltd v Kent & Ors, unreported; SCt of WA; Library No 980187; 9 April 1998; Bristile Ltd v Buddhist Society of Western Australia Inc & Anor [1999] WASC 259 and Buddhist Society of Western Australia Inc v Bristile Ltd & Anor [2000] WASCA 210.

75 When I apply the principles emerging from Lange v Australian Broadcasting Corporation (supra) and these further cases to the circumstances of the present case, I am of the view that the words complained of can arguably be characterised as a form of political discussion. Political discussion is generally thought to relate to the relationship between citizens and government and the policies, structure, composition, role obligations, purposes or activities of government. See Ralph M Lee (WA) Pty Ltd v Fort (1991) 4 WAR 176.

76 The prosecutors may not be directly part of the political process but the way in which citizens are brought before the courts pursuant to laws and conventions of the Westminster system is a governmental issue. It appears from the legislation regulating the DPP's office that the DPP is obliged to report to the Attorney General annually on the performance of his functions. The decided cases indicate that the performance of public bodies in the exercise of their statutory powers is a matter that falls within the Lange principle. Accordingly, I am not prepared to strike out par 19 on this ground, for it cannot be said that the first defendant's plea in regard to this aspect of the matter is untenable.

77 When I apply the principles concerning reasonableness to the circumstances of the present case it might be said that the statement of defence of the first defendant, as presently expressed, does not disclose a cogent defence because the facts and matters upon which the first defendant relies in contending that his conduct was reasonable in publishing the material complained of are not set out. The Lange defence often requires that the defendant provide particulars directed to his sources of information and the inquiries he made before publishing the words complained of.

78 Counsel for the plaintiffs went on to submit further that the terms and context of the first defendant's publications were not of such a character as would give rise to a duty and interest relationship. The publications were not (and did not purport to be) a report upon the Court proceedings for the benefit and information of the public. There was no duty to communicate that material to the public at large. The interviews were not confined to a simple report that the first defendant had been acquitted, and the reasons given by the Magistrate for the acquittal. It was said further that the plea at par 19(3) of the defence did not state any material facts or particulars to support or elaborate upon the alleged duty and interest relationship. These submissions challenging the first defendant's qualified privilege plea were said to apply with equal force to the corresponding defences in the various States.

79 I do not consider that the first defendant's plea should be struck out upon the basis contended for by the plaintiffs. The first defendant relies essentially on the fact that he and his advisers had been in the Court at Broome during the course of the hearing. His principal source of information was what he had seen and heard against a background of ongoing publicity. He was therefore arguably in a position to participate in what he viewed as a political debate as a well-informed observer. He has a basis for saying that he acted reasonably. It will, of course, be a matter for evidence at the trial of the action as to whether these contentions can be sustained.

80 Against the background of these rulings concerning the qualified privilege plea in par 19 there is no need for me to deal at length with the par 35 qualified privilege as to the third defendant's broadcast or as to the interstate defences. It is true that the words complained of are different but the essentials of the situation are the same: the first defendant contends that from what he heard and saw in Court the shortcomings in the prosecution case were such that he felt sufficiently well-informed to criticize this aspect of the governmental system. It follows from earlier discussion that I am of the view that the pleaded case is tenable. However, in my view, in so far as the pleas of qualified privilege in par 35 and the further paragraphs concerning the interstate defences purport to pick up and utilize the par 15 particulars, they should be struck out as embarrassing.

81 The following paragraphs of the first defendant's statement of defence are to be struck out but with leave to re-plead, namely, 15 to 18, 30 to 34 and 37 concerning fair comment; 19 and 35, 38 to 49 concerning qualified privilege. As to the third defendant's statement of defence, par 9 will be struck out with leave to re-plead. I will hear from the parties as to whether any further orders and directions are required.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : COCK & ANOR -v- HUGHES & ORS [2002] WASC 108 (S)

SWAN RADIO AND TELEVISION BROADCASTERS PTY LTD (ACN 008 689 745)

Defamation - Application to strike out defence - Appropriate order as to costs - Turns on own facts

Rules of the Supreme Court, O 59 r 9, O 66 r 1(1)

1 HASLUCK J: The matter before me arises out of an application by the plaintiffs in a defamation claim to strike out certain paragraphs of the statements of defence of the first and third defendants. I am required to make a ruling concerning the costs of the application. It will be useful to set the matter in issue in context by looking at the issues reflected on the pleadings.

2 The first plaintiff is the Director of Public Prosecutions. The second plaintiff is a legal practitioner employed by the DPP who acted as prosecutor in a case brought against the first defendant, Mr Hughes, in the Court of Petty Sessions at Broome.

3 The plaintiffs advance a claim in defamation arising out of certain observations allegedly made by Mr Hughes on or about 10 May 2000 in the course of a radio broadcast by the ABC and on or about the same date in the course of a television broadcast by the Nine Network. The observations are said to have been made by Mr Hughes after his acquittal of charges of dangerous driving.

4 More particularly, the plaintiffs complain of remarks made by Mr Hughes in the course of each broadcast as to the way in which the case against him was handled by the prosecution. The plaintiffs say that the second and third defendants are liable to the plaintiffs as broadcasters for republishing the first defendant's remarks.

5 The plaintiffs say that the words complained of contain various imputations to the effect that in the conduct of the prosecution case the plaintiffs abused their official positions in order to advance their careers.

6 The statement of claim in this matter became the subject of applications to strike out the claim but the plaintiffs eventually filed and served a substituted statement of claim dated 18 September 2001. The three defendants then proceeded to file statements of defence. This led to the plaintiffs applying to strike out various paragraphs of the first defendant's statement of defence and of the third defendant's statement of defence. The paragraphs in question are principally concerned with pleas of fair comment and qualified privilege.

7 The first defendant said that if (which was denied) the matter complained of was defamatory of the plaintiffs, it was fair comment on a matter of public interest, namely, the prosecution brought against the defendant. The plaintiffs contended that the first defendant was obliged to state the substance of the comment and a challenge was raised to the adequacy of the statement of defence in identifying the facts and matters relied upon in support of the comment.

8 It appears from the reasons provided in Cock & Anor v Hughes & Ors [2002] WASC 108 that it was thought appropriate in the circumstances of the present case for the defendant to state the substance of the comment. I considered that the substratum of fact relied upon in support of the comment was sufficiently indicated in the statement of defence although there were certain deficiencies in the pleading which led to a conclusion that paragraphs 15 to 18, 30 to 34 and 37 of the first defendant's statement of defence concerning fair comment should be struck out but with leave to replead.

9 It followed from this ruling that par 9 of the third defendant's statement of defence concerning fair comment should be struck out with leave to replead.

10 The first defendant said further in his statement of defence that if the matter complained of was held to be defamatory of the plaintiffs, the matter was published on an occasion of qualified privilege in that the matter complained of was communication on a government or political matter. Put shortly, the first defendant relied upon the line of defence reflected in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

11 I was of the view that the words complained of could arguably be described as a form of political discussion with the result that the first defendant's plea could not be characterised as untenable. However, I held also that as the pleas of qualified privilege and the further paragraphs concerning the so-called interstate defences purported to pick up and utilise the particulars employed in support of the defence of fair comment they should be struck out as embarrassing. The ruling was that paragraphs 19 and 35, and 38 to 49 concerning qualified privilege should be struck out with leave to replead.

12 It emerges, then, that the first defendant had a degree of success in fending off certain facets of the challenge to his pleading. Nonetheless, the shortcomings in the statement of defence were such that an application to strike out a number of important paragraphs was allowed but with leave to replead. As I have already indicated, as to the third defendant's statement of defence, par 9 was struck out but with leave to replead.

13 When the ruling was handed down directions were given which allowed for the parties to make written submissions concerning the question of costs to the intent that a further ruling would be provided on that issue upon the basis of the written submissions. Written submissions were provided by the parties in due course. It is apparent from those submissions and from the affidavit of Jason Maclaurin sworn 7 June 2002 that the solicitors for the first defendant sought to interpret the directions as providing an opportunity to make submissions on costs concerning earlier interlocutory applications. However, it is quite clear that the directions were confined to costs in respect of the application to strike out certain paragraphs of the statements of defence and I will therefore proceed accordingly.

14 Order 66 rule 1(1) of the Rules of the Supreme Court reflects the precept that (without limiting the general discretion of the Court) the Court will generally order that the successful party to any action or matter recover his costs. The exceptions to this rule are mainly concerned with the conclusion of an action as a whole such as where a party has claimed an excessive amount with the result that costs are unreasonably incurred or where a party has introduced issues into an action upon which he has failed and has thereby increased the costs of the action.

15 The plaintiffs contended by their written submissions that the seminal issue raised by the plaintiffs in relation to the fair comment pleas was the question of the requirements described in the decision of Anderson v Nationwide News Pty Ltd [2001] VSC 335. The plaintiffs argued that this issue occupied much of the hearing and as the plaintiffs succeeded upon the central issue they should obtain the costs referable to the applications to strike out as this was a matter affecting the statements of defence filed by both the first and third defendants. Further, and in any event, the "narrative style" of the particulars provided by the first defendant in support of the defence of fair comment was found to be embarrassing.

16 The plaintiffs submitted further that the pleas of qualified privilege were found to be flawed because of a misconceived reliance upon particulars set out in support of the defence of fair comment. The only respect in which it might be said that the first defendant successfully resisted the plaintiffs' application regarding qualified privilege was the first defendant's contention concerning what was the arguable scope of a "governmental and political matter."

17 The plaintiffs submitted further that had the first defendant embraced the process of conferral allowed for by O 59 r 9, so as to offer up and make proper amendments to the statements of defence so that the issues truly between the parties would be crystallised, the hearing could have been avoided. The process of conferral was not employed with the result that the plaintiff should obtain an order for costs in their favour upon the basis that costs should follow the event. It was said that in the circumstances of this case the relevant event was the striking out of significant portions of the statements of defence with the result that the plaintiffs could be said to have succeeded.

18 The first defendant submitted that the appropriate order in relation to the application was that there be no order as to costs. It was said that the substantive challenge by the plaintiffs to the qualified privilege plea failed. The plaintiffs attacked the plea on two grounds, namely, that there was no government or political matter and that the publication was not arguably reasonable. The Court upheld the first defendant's submissions in regard to both those matters.

19 The first defendant acknowledged that certain parts of the statements of defence were struck out because they were found to be embarrassing. However, the substantive challenge by the plaintiffs to the fair comment plea failed and the Court upheld the first defendant's submissions as to the viability of the plea. The only area in which the plaintiffs achieved any real success was the issue concerning the requirement for particulars of the substance of the comment in the fair comment plea.

20 In essence, the first defendant submitted that the plaintiffs failed (and the first defendant succeeded) on approximately 50 per cent of the issues in the application. In the circumstances, the first defendant submitted that the costs order that would fairly reflect the level of success as between the first defendant and the plaintiffs on the application is that there be no order as to costs.

21 Alternatively to there being no order as to costs, the only other costs order that might be appropriate would be that the plaintiffs pay 50 per cent of the first defendant's costs of the application in the cause.

22 Having given careful consideration to the respective contentions, I consider that the appropriate order is for the plaintiffs to be allowed the costs of the application. As I have already noted, the first defendant had some measure of success in fending off certain challenges to his statement of defence. However, at the end of the day the underlying reality was that the first defendant's statement of defence was found to be deficient and important paragraphs of the defence were struck out with leave to replead. Further, a central issue concerning the defence of fair comment was resolved in favour of the plaintiffs. Accordingly, I consider that the plaintiffs should be regarded essentially as the successful parties and that the general rule should be applied whereby an order for costs is made in favour of the successful party. These comments apply with equal force to the position of the third defendant.

23 In summary, then, in each case an order will be made that the plaintiffs be allowed the costs of the application to strike out the defence in any event such costs to be taxed. I will also make an order that there be liberty to apply in respect of these orders.