Hall & Ors v Jones & Anor

The application for particulars of identification 24 In paragraph 2 of the statement of claim the second, third and fourth plaintiffs who, unlike the first plaintiff, were not named specifically in the broadcast gave these particulars: "(b) The second plaintiff is a member of the NRL judiciary panel, an ex-footballer and a former player for Newcastle (the Newcastle Rugby League Football Club). (c) The third plaintiff is a member of the NRL judiciary panel, an ex-footballer and a former player for Souths (the South Sydney Rugby League Football Club). (d) The fourth plaintiff is the third member of the NRL judiciary panel. 25 So far the response to the request for the particulars pursued on this notice of motion has been as set out in the letters from the plaintiffs' solicitors to the defendants' solicitors of 1 July 1999 and 31 January 2000: 1 July 1999: "The NRL Judiciary consists of the second, third and fourth plaintiffs. That fact is a matter of common knowledge, as a consequence of numerous mass media publications since they were appointed. Each of the second, third and fourth defendants is a person of widespread fame in the community interested in rugby league - initially for their sporting achievements and later for their roles in the judiciary." 31 January 2000: "The identifying material on which the plaintiffs rely occurred in earlier mass media publications, including publications by the defendants. The number of persons to whom the plaintiffs were identified is too great for the plaintiffs to be able to provide a list of their names and addresses." 26 I should add that in the course of argument Mr Littlemore of Queen's Counsel did not identify those earlier mass media publications, save for one publication in The Australian to which I shall shortly refer. Mr Littlemore said that the publications referred to in this letter of 31 January 2000 were such as would be revealed by interrogatories and discovery. 27 The defendants have submitted that these particulars are inadequate and that the second, third and fourth defendants should be required to give particulars of the identity of those persons to whom the plaintiffs allege the matter complained of was published and who had knowledge of the relevant extrinsic facts linking each of these plaintiffs to the NRL Judiciary panel. 28 It is, of course, well settled that where the identity of a person defamed would only be apparent to persons who had knowledge of some special circumstances to link the person defamed to the defamatory material it is incumbent upon the plaintiff to prove publication to one or more persons with knowledge of those circumstances: see, for instance, Consolidated Trust Co Limited v Browne (1949) SR 86 and in particular the judgment of the Jordan CJ at 89; see also Mirror Newspapers Limited v World Hosts Pty Limited (1978-79) 141 CLR 632 and in particular the judgment of Mason and Jacobs JJ at 639. See also Steele v Mirror Newspapers Limited (1974) 2 NSWLR 348 and in particular the judgment of Samuels JA at 373-374, where his Honour specified the requirements the unnamed plaintiff had to satisfy in order to make out a case to go to the jury. 29 Mr Littlemore submitted, consistently with the response of his instructing solicitors to the request for particulars, that these plaintiffs are so well known that it would be unreasonable to require them to give particulars of the type sought. He submitted that particulars of identification would not be required for instance if the Prime Minister was not named in a publication but was referred to simply as the Prime Minister: see as to this Consolidated Trust Co. Limited v Browne (supra) and the dicta of Jordan CJ at 91. In the case of the Prime Minister, as the Chief Justice pointed out in Browne, it would be unnecessary to call a witness to prove receipt of the publication and knowledge as to who the Prime Minister was because special knowledge would not be necessary in order to identify him as the subject of the publication. The identity of the Prime Minister was a matter of general knowledge. 30 Mr Littlemore tendered an extract from The Australian newspaper of 4 February 1999 which included the statement that the panel for the coming season would be the plaintiffs named and one other. He also submitted that this was not an isolated sports news item and that there had been other publications addressing their appointment. One of the difficulties however for the plaintiffs would be that it would by no means necessarily follow that, because a number of people read the item in The Australian and similar items, if such be proved, any one of those readers would have listened to the radio broadcast about which complaint is made in this case. 31 It seems to me that the present case is far removed from the example considered by the Chief Justice in Browne. Having reflected upon the competing submissions, I have not been persuaded by argument that the knowledge necessary to link these plaintiffs with the broadcast would have been so widespread at the time as to render it unnecessary to call evidence of the type considered by Samuels JA in Steele's case in the passage to which I made earlier reference. Even if there was a widespread knowledge of the plaintiffs as former players, it would by no means follow that there was widespread knowledge that any one of them was a member of the NRL Judiciary panel at the relevant time, and the need for such awareness was critical to link the second, the third and the fourth plaintiffs to the subject matter of the publication of which complaint is made. 32 The obligation of a plaintiff to give particulars in a case where he has not been named has been considered in a number of cases: Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188; Moore & Anor v Australian Broadcasting Commission A.Def.R. (50,010); Rogers v 2UE Sydney Pty Limited (unreported, Levine J, 6 November 1998); and Williams v Radio 2UE & Hadley (unreported, Levine J, 3 December 1993). 33 Referring to this obligation in Lazarus, Hunt J said, at 193: "… in both oral and written defamation cases, particulars should be supplied of the identity of the persons to whom the publication is alleged to have been made when that identity is relevant to either the plaintiff's or the defendant's case. That identity will usually be relevant in oral identification cases and in written defamation cases where it was not published in the mass media; but that identity will not usually be relevant in mass media cases." 34 In Moore Hunt J made it plain that the exception in the mass media cases referred to by him in Lazarus was an exception that related to a publication where the plaintiff was named. In this regard his Honour said in Moore, at 40,062: "The whole issue of the identification of those persons to whom publication is alleged to have been made was discussed in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 189 at 192-196. In that case it was stated that the identity of the persons to whom the publication is alleged to have been made is a relevant and necessary particular except in the case of the mass media defendants ( where the plaintiff is named ), because in such cases the precise identity of the persons to whom the publication was made is irrelevant." (Emphasis added) 35 In each of the cases Lazarus and Moore, in which the plaintiff was not named in the relevant publication, the defendant's entitlement to particulars of identification was recognised. So too in Rogers (supra) and in Williams (supra). 36 Clearly, as a matter of general principle, a defendant is entitled to know the nature of the case which he or it has to meet. In Moore Hunt J said, voicing considerations which I regard as entirely apposite to the present case: "A defendant should not be obliged to guess; he is entitled to know the nature of the case which is to be presented against him: Sims v Wran [1984] 1 NSWLR 317 at 321-322. In that case it was said: There is often a fine line between giving particulars of the case to which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise; the starting point is not what can be said without disclosing the evidence to be led. Whether a plaintiff relies upon extrinsic facts which are known only to a very few people, or whether he relies upon extrinsic facts which are known to a lot of people, the defendant is clearly entitled to know just precisely what is the nature of the case which has been made against him." 37 The provision of appropriate particulars assumes relevance not only to alert the defendants to the person or persons who had the knowledge to link these plaintiffs to the imputations expressed, but also to allow the defendants responsibly to frame their defence. As to the latter consideration, I do not overlook the fact that the defendants have prepared and served a proposed defence, but this document has not yet been filed. The delay in filing is to be attributed to the need perceived by the defendants to have the issues raised on this notice of motion resolved. 38 In my opinion the defendants are entitled to particulars as to identification. The plaintiffs should give the names and addresses of some persons who recognised the unnamed plaintiffs and to whom the matter complained of was published. If it is the plaintiffs' case that there was a publication other than to persons who the plaintiffs are able to nominate by name and address, the plaintiffs should nominate such unnamed persons by description as a class, and in respect of this class the plaintiffs should specify the facts and matters that are relied upon in asserting that this class had knowledge of the relevant facts.

The application for particulars of the claim for aggravated damages 39 The plaintiffs have claimed aggravated damages in paragraph 7(b) of the statement of claim, expressing their grounds for that claim in paragraph 7(b), (c) and (d). This claim prompted a request for particulars from the defendants' solicitors by letter dated 24 June 1999. To that letter the plaintiffs' solicitors responded on 1 July 1999. The defendants were dissatisfied with the response and pursued the matter of particulars again by letter of 15 November 1999. Finally the plaintiffs' solicitors wrote on this issue on 31 January 2000. The alleged insufficiencies in the particulars that were supplied by letter dated 1 July 1999 were addressed when the defendants' solicitors wrote on 15 November 1999. The plaintiffs declined to give any further particulars in January 2000, contending that adequate particulars had already been supplied. It is thus convenient for the purpose of identifying the outstanding particulars in respect of which the defendants now seek appropriate orders to consider the letter from the defendants' solicitors dated 15 November 1999. In that letter the topics are referred to by reference to paragraph 7 of the statement of claim, and I adopt the same numbering for present purposes. 40 Paragraph 7(b)(ii)(A): The first defendant's hatred of police and former police. The defendants complain that the plaintiffs have not provided particulars as to the first defendant's knowledge that the first and second plaintiffs were former policemen or that the fourth defendant is a serving policeman. Mr Littlemore conceded this was so, but pointed out, correctly, that until the letter of 15 November was written no such particulars had been requested. Be that as it may, that request was made on 15 November and, bearing in mind the purpose of particulars, the defendants are, in my opinion, entitled to the particulars sought as to the source of the first defendant's knowledge. In my opinion the defendants are also entitled to particulars as to how it is alleged that the first defendant's asserted arrest in London is linked to the allegation in paragraph 7(b)(ii)(A). 41 Paragraph 7(b)(ii)(B): The relationship and involvement with Darrell Trindall. The plaintiffs have given no particulars of this, save to assert the particulars of the relationship are peculiarly within the knowledge of the defendants. In my opinion, this is an inadequate response and the defendants are entitled to know what the plaintiffs claim to be the first defendant's relationship and involvement with Darrell Trindall in order to understand what case the plaintiffs will seek to make as to this. 42 Paragraph 7(b)(ii)(C): The first defendant's animosity towards the third plaintiff. In the statement of claim this animosity is alleged to arise from the involvement of the third plaintiff and the first defendant with the South Sydney Rugby League Club. In response to a request for particulars about this, the plaintiffs responded that the animosity sprang from their conflict at South Sydney Rugby League Club and that the particulars were peculiarly within the knowledge of the first defendant. Once again I accept the submission that this is not an adequate response. The defendants are entitled to know what the plaintiffs claim to have been the source of the animosity, and hence the defendants are entitled to particulars of what the plaintiffs claim to have been the conflict between the third plaintiff and the first defendant at the club in question. 43 Paragraph 7(b)(ii)(D): Bias in matters affecting South Sydney Rugby League Club. When asked for particulars of this the plaintiffs' response was to state that partiality had been demonstrated by the first defendant "on occasions too numerous to particularise". In my opinion this response is inadequate. Once again the defendants are entitled to know the case which the plaintiffs intend to make. The plaintiffs should give particulars of those matters upon which the plaintiffs intend to rely as demonstrating bias in the first defendant in matters affecting the South Sydney Rugby League Club. 44 Paragraph 7(b)(ii)(E): Antipathy towards the National Rugby League. The particulars so far supplied on this matter are these: "[The first defendant] was paid by the Packer interests to campaign against the Murdoch interests' campaign for a National Rugby League competition…and spoke on occasions too numerous to particularise on radio, television and to print media in that regard." 45 It seems to me that this response suffers from the same deficiency as the response to paragraph 7(b)(ii)(D). If (E) is to be pursued as a matter going to malice, the plaintiffs must particularise the precise facts and/or circumstances relied upon by the plaintiffs as establishing the antipathy of the first defendant towards the National Rugby League. 46 Paragraph 7(b)(iii): The defendants' refusal to publish a retraction, correction or apology. By letter dated 24 June 1999 the defendants requested the provision of: "All facts, matters and circumstances relied upon including copies of any letters sent to either the first or second defendant or any other verbal or written request for or refusal of publication of a retraction, correction or apology." 47 By letter dated 1 July 1999 the plaintiffs identified the correspondence relied upon but did no more. The defendants complain that the plaintiffs have not given particulars of such facts, matters and circumstances as they rely upon by reason of which it is alleged that the failure to apologise warranted the award of aggravated damages. If there are any matters relied upon other than the correspondence identified on 1 July 1999 the plaintiff should specify those matters by way of particulars. 48 Paragraph 7(c): The first defendant informed or caused to be informed representatives of the mass media that he intended to "drop a bombshell…" The defendants sought particulars as to the identity of the media representatives to whom this information was conveyed and the plaintiffs were requested to specify the date, the time and the place where the claim was made and the words used. The response to this was that the information was given to a person or persons unknown who then passed that information on to the authors of two newspaper columns which were specified. In my opinion the response to this request (see paragraph 6(g) of the letter from the plaintiffs' solicitors of 1 July 1999) was inadequate. If the plaintiffs do not know who the recipients of the information were their difficulties at trial on this issue are obvious. Be that as it may, in my opinion the plaintiffs should now be required to give the best particulars they can and should be required to specify when, where and in what circumstances it is alleged that the information was conveyed. 49 Paragraph 7(d): The defendants obtained legal advice that the programme was defamatory and should not be published. In response to the defendants request for particulars concerning the advice allegedly given, the plaintiffs answered: "These particulars are peculiarly within the knowledge of your clients." 50 This is an inadequate response. Having regard to the nature of the assertion in paragraph 7(d), in order to alert the defendants to the case the plaintiffs intend to make I consider that the defendants are entitled to the particulars sought. The defendants are entitled to know who is alleged to have given the advice and when it was supposed to have been given. The plaintiffs have already asserted that the advice was that the programme was defamatory and should not be published and I do not consider that the defendants need to be told anything more as to the nature of the advice.

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Judgment (9 paragraphs)

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Cases Cited (4)

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