Particulars of Malice
69 I turn now to the application that the claim for injurious falsehood in the further amended statement of claim should be struck out on the grounds that the particulars of malice are defective or that some at least of those particulars should be struck out as being defective.
70 Part 15 r 1 of the Uniform Civil Procedure Rules provides that a pleading must give such particulars of any claim as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet. Part 15 r 4 provides that a pleading that alleges any condition of mind must give particulars of the facts on which the party pleading relies. "Condition of mind" is defined as including malice.
71 As the claim for injurious falsehood is not a proceeding in defamation, Pt 67 of the Supreme Court Rules has no application to the pleading of the claim for injurious falsehood.
72 In the further amended statement of claim particulars of malice were set out in twenty numbered paragraphs as follows:-
"(i) The plaintiffs hired and employed Chris Mebberson as the general manager of the Coco Roco restaurants. He is and was as fried of the second defendant and on behalf of the plaintiffs he invited the second defendant to review the Coco Roco restaurants.
(ii) Leisa Lindsay was employed by the plaintiffs as front office manager for the Coco Roco restaurants and her close associate Richard Latham was a friend and associate of the second defendant.
(iii) Both Chris Mebberson and Leisa Lindsay were dismissed for alleged dishonesty by the plaintiffs on 1 September 2003.
(iv) Upon and after the dismissal of Mr Mebberson he said he would make sure that Mr Evans gave a bad review and said words to the effect 'I will ensure that Matthew Evans and the Sydney Morning Herald destroy this restaurant'.
(v) Upon her dismissal Leisa Lindsay said, words to the effect 'I am going to call Richard (Latham) and he will destroy Coco Roco through Matthew Evans who will give a very bad review'.
(vi) When the second defendant dined at the Coco restaurant and subsequently when he published his review being the matter complained of he was biased and prejudiced against Coco Roco and their owners by reason of the dismissal of Chris Mebberson and Leisa Lindsay.
(vii) The second defendant dined at the Coco restaurant on 5 and 10 September 2003. The second defendant acted maliciously and/or with reckless and irresponsible carelessness in expanding his criticisms of the food, service, prices and décor of the Coco restaurant to include the Roco restaurant as well. Such malice and recklessness was aggravated by the fact that the second defendant had never dined at the Roco restaurant and had not experienced its service or been subject to its prices. The second defendant knew that the prices were less expensive at the Roco restaurant but notwithstanding he included in his attack the princes of the Roco restaurant which he said were excessive, too high and not good value.
(viii) The second defendant wrongfully failed to make proper enquiries as to the running, service, food, prices and décor of the Roco restaurant.
(ix) Prior to the publication of the matter complained of in the Good Living magazine of 30 September 2003 various employees, servants and agents of the first defendant including journalists and editorial staff, visited the Coco Roco restaurants where they dined and consumed wine gratis. They were invited to visit the restaurants. They saw that there were two open kitchens and they were informed by the second and third plaintiffs and by the plaintiffs' public relations staff that there was a chef for each of the two kitchens and each restaurant had separate staff, separate menus and separate prices. They observed the two kitchens, separate staff, menus and separate prices when they dined in both the upstairs and downstairs restaurants. They expressed the opinions that the food and service was good.
The employees, servants and agents included Bernoth Ardyn, Scott Boyle, Kirsten Galliott, Susan Skelly, Harris Carentha, William Petley, Holly Byrnes, Lisa Breen and Brooke Turner.
At the time of publication the first defendant through and by its servants and agents above referred to knew the imputations to be false in their application to the Coco and Roco restaurants.
(x) The second defendant knew or should have known had he made even perfunctory enquiries and observations that each restaurant had different staff, a different chef and a different kitchen.
(xi) Wrongful failure to apologise and retract for the publication of the defamatory imputations made against the Coco and Roco restaurants.
(xii) The second defendant acted unfairly and with hostility towards the plaintiffs because when he attended and dined at the Coco restaurant on 5 September 2003 he knew the restaurants had only been officially opened the day before. He wrote in his review that he came back a few days later in the interest of impartiality but by coming back so soon (five days later) he acted unfairly and with malice since he gave the Coco restaurant inadequate time to settle in and improve if indeed the food and service required improvement.
(xiii) The defendant knew that the restaurants had been fitted out at a cost of $3 million and had only just opened. Had he not been biased and prejudiced towards the plaintiffs and their restaurants he would have waited a longer time to give them the opportunity of carrying out any necessary improvements.
(xiv) The defendants had an improper motive being an intent to injure the plaintiffs as evidence by the large and widespread publication of the material complained of; sensational manner of presentation; sensational manner of setting out and phrasing together with headlines and colour photographs.
(xv) The matter complained of is intrinsically malicious.
(xvi) The plaintiffs rely on the publication of the false statements and matters which are set out in the particulars of falsity above.
(xvii) The second defendant knew that the plaintiffs as owners of the Coco Roco restaurants were newcomers as restaurateurs. His review was too harsh and uncompromising. The second defendant knew that such a harsh and uncompromising review would have drastic consequences on both the Coco and Roco restaurants thereby adversely affecting a $3m investment and leading to probable closure. The second defendant should have refrained from reviewing the restaurants at that stage. He should have deferred a review until the next year at the earliest.
(xviii) The first defendant acted maliciously and unfairly by not publishing any of the many letters written to 'The Sydney Morning Herald' from patrons who had dined at the Coco Roco restaurants and disputed and/or contradicted the statements made by the second defendant in the material complained of.
(xix) When the second defendant dined at the Coco restaurant he did so with a companion and the two of them were charged $185.10 on the first occasion and $173 on the second occasion. Bearing in mind the number of items ordered from the menus the second defendant knew that the prices were reasonable and were not big end of town prices. The second defendant knew that the prices were moderate as compared to many Sydney Restaurants and were neither excessive nor shocking.
(xx) Describing or implying in the matter complained of that the two separate restaurants (Coco and Roco) were combined as if one with the one kitchen, the same food, the same service and staff and the same décor".
73 Counsel for the defendants submitted that the particulars of malice supplied in the further amended statement of claim were defective. A general submission was made about the particulars and specific submissions were made about some of the individual particulars.
74 The general submission made was that in pleading a cause of action for the tort of injurious falsehood, an element of which is that the defendant in publishing the matter complained of acted maliciously, it is necessary for the plaintiff to specify what the plaintiff alleges was the defendants' improper motive or purpose in publishing the matter complained of and then to set out the facts and circumstances from which it is alleged that improper motive or purpose can be inferred. In support of this submission counsel for the defendant's referred to Roberts v Bass (2002) 212 CLR 1; Bass v TCN Channel Nine Pty Ltd (2002) 60 NSWLR 251 and especially the judgment of Spigelman CJ; El-Azzi v Nationwide News Pty Ltd [2004] NSWSC 1057 (Levine J). All of these cases were defamation cases and were concerned with whether a defence of qualified privilege had been defeated by malice. However, it was submitted by counsel for the defendants that there was no difference between the concept of malice as a matter which defeats an otherwise available defence of qualified privilege and the concept of malice as an element in the tort of injurious falsehood.
75 Counsel for the defendants relied particularly on paragraphs 10 and 30 of the Chief Justice's judgment in Bass v TCN Channel Nine Pty Ltd, in which the Chief Justice, after noting that the particulars of malice which had been supplied did not contain any statement asserting that the respondent (defendant) had published the matter complained of for any specified purpose or motive being a purpose or motive not within the occasion of the qualified privilege, held that the particulars which had been supplied were not sufficient and that the particulars had properly been struck out because they did not assert what the defendant's unauthorised purpose had been.
76 It was conceded by counsel for the defendants that Handley JA had taken a contrary view to that of the Chief Justice but it was contended that the third member of the Court, Wood CJ at CL, had not agreed with Handley JA and that in El-Azzi Levine J had preferred the Chief Justice's approach.
77 Counsel for the plaintiffs suggested that the requirements for providing particulars of malice in a claim for injurious falsehood might not necessarily be the same as the requirements for providing particulars of malice in proceedings for defamation when it is asserted by the plaintiff that the defendant in publishing the matter complained of had a motive or purpose which was outside the occasion of a qualified privilege. In such a context there might be more reason for requiring the plaintiff to specify what the plaintiff alleges the defendant's motive or purpose was. However, on the assumption that the same principles apply in both contexts, counsel for the plaintiffs submitted that it was not necessary for the plaintiffs to specify the purpose or motive which they alleged had actuated the defendants, that Handley JA had so held in Bass v TCN Channel Nine Pty Ltd and that Wood CJ at CJ had supported the judgment of Handley JA rather than the judgment of the Chief Justice. It was submitted that, in any event, the plaintiffs had specified some purposes or motives which they alleged had actuated the defendants in publishing the article.
78 In the judgments in Bass v TCN Channel Nine Pty Ltd there are frequent references to parts of the joint judgment of Gaudron, McHugh and Gummow JJ in Roberts v Bass, the judgments in Roberts v Bass having been handed down while the Court of Appeal was reserved in Bass v TCN Channel Nine Pty Ltd, and I will now refer to certain parts of the joint judgment.
79 At 30 (75) malice which will destroy qualified privilege was defined as "any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff".
80 At 31 (76) their Honours, in a passage strongly relied on by counsel for the plaintiffs, said in part:-
" Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication".
81 As 32 (77) their Honours said that, if a defendant knew that his statement was untrue at the time of making it, that would almost invariably be conclusive evidence of malice. However, at 32 (78) their Honours said that knowledge that matter published is false or a lack of any honest belief that the matter is true is not equivalent to malice. At 32 (79) their Honours said that what is decisive of malice is the motive or purpose for which the defendant used the occasion, not the defendant's belief in the truth of the matter published.
82 At 34 (83) their Honours said:-
"In our opinion, neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. But knowledge of falsity is 'almost conclusive evidence' of improper motive, except where the defendant is under a legal duty to publish the defamation"
83 At 35 (87) their Honours said:-
"Further, mere lack of belief in the truth of the communication is not to be treated as if it was equivalent to knowledge of the falsity of the communication and therefore as almost conclusive proof of malice."
………………
"…recklessness, short of wilful blindness, is not enough to destroy the privilege. It must be accompanied by some other state of mind. Where that is so, the recklessness is evidence that the publication was actuated by the accompanying state of mind, be it anger, hatred, bias or unreasoning prejudice".
84 At 39 (98) their Honours said:-
"When the plaintiff proves that the defendant knew the defamatory matter was false or was reckless to the point of wilful blindness, it will constitute almost conclusive proof that the publication was actuated by malice".
………………
When the plaintiff can only prove that the defendant lacked a belief in the truth of the defamatory material, however, it will be no more than evidence that may give rise with other evidence to an inference that the publication was actuated by malice".
85 In Bass v TCN Channel Nine Pty Ltd the defendant television channel sought to rely on the derivative qualified privilege of a third party publisher, where the matter published is a reply by a person who has been attacked in the same forum by the plaintiff and has the primary qualified privilege.
86 The plaintiff in Bass v TCN Channel Nine Pty Ltd was a building sub-contractor who in an interview which was broadcast by Channel Nine had attacked the Building Workers' Industrial Union. Channel Nine broadcast parts of an interview with the secretary of the Union in which the secretary replied to the plaintiff's attack on the Union. The plaintiff's action for defamation was based on some of the things said by the secretary of the Union in these parts of the interview. Channel Nine pleaded a number of defences including qualified privilege and the plaintiff in his reply alleged malice on the part of Channel Nine.
87 The particulars of malice pleaded were:-
"(a) The defendant had no belief in the truth of what it published.
(b) The defendant was reckless as to the truth of what it published.
(c) The defendant knew that the Building Workers' Industrial Union spokesman was motivated by malice towards the plaintiff.
(d) The defendant believed that what it published about the plaintiff was false".
88 At the trial the trial judge held that the particulars as pleaded did not amount in law to malice and the trial judge took the issue of malice away from the jury. The jury found that two defamatory imputations had been conveyed by the matter published, upheld a defence of truth to one of those imputations and rejected all the defences left to the jury in respect of the other imputation. The trial judge later upheld the defence of qualified privilege, so that the plaintiff's action in defamation failed.
89 The plaintiff appealed to the Court of Appeal against the trial judge's decisions on qualified privilege and malice. All three members of the Court of Appeal held that the trial judge had correctly found that, subject to malice, the defendant had had a qualified privilege but the Court of Appeal held by a majority (Handley JA and Wood CJ at CL, Spigelman CJ dissenting) that the trial judge had erred in holding that the particulars of malice pleaded were insufficient.
90 I have already referred to parts of the judgment of the Chief Justice in which the Chief Justice held that the particulars of malice pleaded were insufficient, because they did not contain a statement asserting that the respondent had published the matter complained of for a specified purpose or motive being a purpose or motive foreign to the occasion of the qualified privilege in question. His Honour held that, as a result of the joint judgment in Roberts v Bass, particulars (a) and (b) were insufficient and further held that particulars (c) and (d), although they might constitute evidence from which an inference of an improper purpose might be drawn, "did not go far enough".
91 Handley JA in his judgment held that, as a result of the joint judgment in Roberts v Bass, each of particulars (a) and (b) "fails as a matter of law". His Honour proceeded to consider particulars (c) and (d) together and concluded that a media organisation would lose a derivative qualified privilege, if it knew that its joint publisher had lost its primary privilege because it was actuated by malice, the exception where the holder of the derivative qualified privilege is under a duty to pass on a defamatory statement not being applicable. Hence, particulars (c) and (d) were sufficient particulars of malice.
92 At paragraphs 124 to 137 of his judgment Handley JA considered the parts of the Chief Justice's judgment dealing with malice. Notwithstanding what the Chief Justice had said in his judgment, Handley JA adhered to the conclusion he had already reached that particulars (c) and (d) were "capable of establishing a prima facie case of malice and as such were proper particulars of the ultimate facts on which the plaintiff relied". Handley JA held that Supreme Court Rule Pt 16 r 3(1), corresponding to Uniform Civil Procedure Rule Pt 15 r 4, and Supreme Court Rule Pt 67 r 19 "only require the plaintiff to state the facts matters and circumstances on which he relies to prove malice. The plaintiff is not required to particularise the unauthorised purpose or motive which actuated the defendant".
93 In his judgment Wood CJ at CL held, applying Roberts v Bass, that neither particular (a) nor particular (b) would, by itself, as a matter of law, establish malice but each could "continue to be relevant as one of a series of circumstances which, when considered together, would support an inference of malice".
94 Wood CJ at CL stated that the issue to be determined was whether or not particulars (c) and (d), in conjunction with either particular (a) or particular (b) (which his Honour considered to be alternatives) would be sufficient to support a case of malice.
95 In paragraph 164, a part of Wood CJ at CL's judgment particularly relied on by counsel for the defendants, his Honour said:-
"The position would have been clear, and would have been resolved in favour of the appellant, had the particulars gone on to expressly allege, for example, that TCN had published the reply in circumstances where it knew that the material which it put to air was not balanced, or where it did so in order to unfairly harm the appellant, or where it acted for some other improper motive personal to itself".
96 However, Wood CJ at CL proceeded to hold at paragraph 171:-
"Particulars (c) and (d), when read together as part of a circumstantial case, would, in my view, be capable of establishing an improper motive, depriving TCN of the qualified privilege that would otherwise have attached".
97 Accordingly, Wood CJ at CL agreed with Handley JA that the appellant should have been allowed to rely on malice and that the appeal should be allowed. In other words, Wood CJ at CL agreed with Handley JA that the particulars pleaded were sufficient, even though the particulars pleaded did not contain any allegation that the respondent in publishing the matter complained of had been actuated by a specified improper purpose or motive.
98 In El-Azzi Levine J said that the approach of the Chief Justice in Bass v TCN Channel Nine, and not the approach of Handley JA, appeared to Levine J to be correct and that it is necessary in providing particulars of malice to specify a motive or purpose. Levine J noted that Handley JA had been "in stark disagreement with the Chief Justice" and said, with regard to Wood CJ at CL's judgment, "I am unable to read anything in the judgment of Wood CJ at CL, who concurs with Handley JA, that directly concurs with Handley JA's clear dissent from the Chief Justice".
99 It is true that there is no passage in Wood CJ at CL's judgment in which he expressly concurs with Handley JA's dissent from the Chief Justice. However, as I have sought to show, Wood CJ at CL's reasoning and conclusion is consistent only with his concurring with Handley JA that it is not necessary in providing particulars of malice to specify an improper motive or purpose actuating the publication.
100 I have concluded on the basis of what I consider to be the views of the majority in Bass v TCN Channel Nine Pty Ltd that in pleading a cause of action for the tort of injurious falsehood it is not necessary for the plaintiff to specify what the plaintiff alleges was an improper motive or purpose of the defendant in publishing the matter complained of.
101 In any event, the plaintiffs have in some of the particulars of malice specified what they allege was an improper motive or purpose of the defendants. In particular (vi) it is alleged that when the second defendant published the article he was biased and prejudiced against Coco Roco and their owners by reason of the dismissal of Mr Mebberson and Ms Lindsay. In paragraph (xiv) it is alleged the defendants had an improper motive being an intent to injure the plaintiffs.
102 In the particulars which have been supplied the plaintiffs have alleged a number of matters which, according to paragraph 76 of the joint judgment in Roberts v Bass, will usually provide premises for inferring that a defendant was actuated by an improper motive in publishing the matter complained of; for example, bias and prejudice in particular (vi), recklessness in particular (vii), knowledge on the part of the first defendant that what had been published was false in particular (ix) and an intent to injure in particular (xiv). The judges who delivered the joint judgment went on to say that the evidence of the publication must also show some ground for concluding that such matters existed at the relevant time and actuated the publication. In my opinion, this requirement is satisfied by, among others, particulars (vi), (ix), (xii), (xiv) and (xvi).
103 I accept that some of the particulars, and indeed most of the particulars, when considered individually, would be insufficient to establish malice. However, notwithstanding some of the language used by Handley JA in his Honour's judgment in Bass v TCN Channel Nine (for example, that each of particulars (a) and (b) in that case "fails as a matter of law"), I do not understand his Honour to be saying that a matter which is insufficient of itself to establish malice is necessarily to be struck out as not being a proper particular of malice. Especially in the present case, where the only Rules to be complied with are Pt 15 rr 1 and 4 and the plaintiffs in alleging malice are obliged to give particulars of the "facts" on which the plaintiffs rely, a fact stated in a separate paragraph of the particulars may be one of a combination of facts from which an inference of malice is capable of being drawn, even though no such inference could be drawn from the individual fact considered in isolation from other facts. I would adopt the approach of Wood CJ at CL in Bass v TCN Channel Nine, that a particular which would not by itself establish malice may continue to be relevant as one of a set of circumstances which, considered together, would support an inference of malice. A particular should be struck out on the ground that it is incapable of supporting a finding a malice, only if it is incapable of constituting one of a set of circumstances from which, considered together, an inference of malice could be drawn.
104 Some of the particulars refer to conduct of the first defendant occurring after the publication of the article, for example particulars (xi) and (xviii). It is well established that conduct on the part of a defendant subsequent to the publication of defamatory material may provide evidence of improper motive at the time of publication. Australian Defamation Law and Practice paragraph (18040).
105 Some of the particulars of malice refer only to the second defendant, for example particulars (vi), (vii), (viii), (x), (xii), (xvii) and (xix). However, the first defendant, as the publisher of the Sydney Morning Herald of 30 September 2003, as alleged in paragraphs 1 and 2 of the further amended statement of claim, would be vicariously liable for any malice of the second defendant in writing the article. See Australian Defamation Law and Practice paragraph (18045) and the cases there cited.
106 Various criticisms were made by counsel for the defendants of some of the individual particulars of malice. Except where I otherwise indicate, I have decided that I should decline to strike out an individual particular.