Harrigan v Jones

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20486 of 1999

JUDGMENT (Strike out application - sufficiency of particulars of malice and aggravated damages) 1 The defendant has moved the Court to strike out the plaintiff's particulars of malice and particulars of aggravated damages. 2 On 6 April 2000 the jury held that the defendant had defamed the plaintiff in a radio broadcast on 2UE on 8 September 1998. 3 The jury found that the publication complained of conveyed the following defamatory imputations of the plaintiff: "(a) The plaintiff carries out his duties as a referee in a biased manner. (e) As a referee, the plaintiff favours ex super league teams over ex-ARL teams when awarding penalties. (f) As a referee the plaintiff favours Brisbane over their opponents when awarding penalties". 4 The defendant has pleaded truth under s 15 of the Defamation Act 1974, qualified privilege under s 22 and at common law, comment pursuant to s 32 and a defence of unlikelihood of harm pursuant to s 13. 5 In reply to the defence of privilege the plaintiff has pleaded that the defendant was actuated by express malice and the following particulars are given: "(a) The imputations were false to the knowledge of the defendant. (b) The imputations were published by the defendant with reckless indifference to their truth or accuracy. (c) The defendant wrongfully failed to make proper enquiries which would have established that the imputations complained of were false. (d) The defendant wrongfully failed to give the plaintiff an opportunity to refute or explain the allegations made against him by the defendant. (e) Improper motive being an intent to injure the plaintiff as evidenced by the unfair mode and manner of publication. (f) Improper motive being an intent to injure the plaintiff as evidenced by the publication of the matter complained of which was excessive and unfair. (g) Programme intrinsically malicious. (h) Plaintiff not fairly treated by the defendant on the programme. (i) Wrongful failure to retract and apologise. (j) The defendant was carrying out a vendetta against the plaintiff. (k) The defendant published the defamatory imputations against the plaintiff in the course of a vendetta he was carrying out against the Super League, the NRL, the Brisbane Football Team and Ex-ARL Teams for purposes including the assisting of South Sydney League Team. (l) Dishonest tactics of the defendant in only referring to selected statistics. (m) The plaintiff will also rely on the particulars of aggravated damages". 6 In the pleading described as the Third Further Amended Statement of Claim, the plaintiff alleges an entitlement to aggravated damages by reason of his "knowledge of the following": "1. The falsity of the imputations. 2. The defendant's knowledge that the imputations were false. 3. The reckless indifference of the defendant to the truth or falsity of the imputations. 4. The excessive language, sensationalism and tone of the matter complained of. 5. The conduct of the defendant which has caused the plaintiff to fear or worry that the defamation may be repeated. 6. The manner in which the defendant has treated the plaintiff and which has caused his hurt and injury to be increased. 7. The malice of the defendant who denigrated the plaintiff for the ulterior purpose of carrying out a campaign to promote a particular football club". 7 It is both these sets of particulars which the defendant seeks to have struck out. 8 Exhibit A on the application is an exchange of correspondence between the defendant's solicitors and the plaintiff's solicitors. 9 By letter dated 26 July the solicitors for the defendant (some seven weeks after the filing of the pleading) contended that the particulars of malice were defective insofar as they failed to identify the facts and matters relied upon and merely stated conclusions; certain authorities (to which I shall return) were referred to. The plaintiff's solicitors were required to provide proper particulars, failing which the defendant would move the Court as it has now done. 10 On 1 August the solicitors for the plaintiff wrote to the solicitors for the defendant complaining of the delay and asserting that the real purpose was to delay the matter being placed in the Holding List. It was stated that if a request for further and better particulars of the Reply was received in proper form it would be answered. 11 I leave to one side at the moment the mutual recriminations of the parties in this correspondence. 12 The real matter in issue is that adequacy of the particularisation of the plaintiff's case under each heading. 13 It is trite to state that the purpose of particulars is to inform the recipient of the case that will be made against it on the relevant issue. Particulars should be clear, concise, non-argumentative, not rhetorical and not constituted merely by a statement of a conclusion (see Humphreys v John Fairfax & Sons Pty Limited (unreported, 18 April 1980, per Hunt J at 12); NRMA Insurance Ltd v Flanagan (1982) 1 NSWLR 585 at 603B). 14 Provided that a party has particularised the facts, matters and circumstances which it proposes, by evidence, to prove, it may state, having done so, the conclusion which it will assert the matter which the evidence on those particulars will establish or the submission that will be made on those matters upon their being proved by evidence. 15 Applying these general principles, for the moment, it is unarguable that the particulars both of malice and aggravated damages are insufficient and are amenable to being struck out as embarrassing. 16 The only exception is the first particular of aggravated damages namely that the plaintiff knew that the imputations were false. As Mr Connell for the defendant rightly conceded, to request further and better particulars of that assertion would be futile and unnecessary. 17 The evidence of that assertion is very simply given. The plaintiff goes into the witness box in chief and is usually asked a question to the effect of what the plaintiff says as to the truth or falsity of the imputations; the answer one can anticipate will be "false". There is then evidence in relation to that particular. 18 If the imputations are justified pursuant to s 15 (as is here the case), the defendant will call evidence to prove that the imputations are true; if the defendant is relying upon the truth of the imputations in mitigation of damages (as is the case here), it will call evidence as to their truth. It must be borne in mind however that the plaintiff's assertion that they are false, in addition to the two matters to which I have just referred, will give rise to an issue as to truth or falsity if the assertion of falsity is relied upon, combined with other matters, relevant to the issue of malice or aggravated damages. 19 In King v John Fairfax & Sons Pty Limited (1983) 1 NSWLR 31 at 33G Hunt J said: "But once a plaintiff asserts that the matter complained of is untrue for the purpose of aggravating his damages, he will quite often find himself in the position of trying to resist evidence of truth being led by the defendant… Because such evidence is led in reply to a claim for aggravated damages, and not in support of a defence of truth or a claim in mitigation of damages, the defendant is entitled (subject only to the requirements of Pt 15, r 13(2)(b)) to do so without warning to the plaintiff". 20 It can now be taken that the defendant will be directed to disclose whether or not it proposes to adduce evidence of truth in these circumstances; will be directed to particularise its case on that issue and at an appropriate time the parties will be directed to exchange witness statements. This remnant of trial by ambush will be eliminated. 21 In the correspondence to which I have referred reference was made to the two decisions of Hunt J in Waterhouse v Broadcasting Station 2GB Pty Limited (1985) 1 NSWLR 58 and Waterhouse v Mirror Newspapers Limited (1985) 1 NSWLR 81. Those very important decisions of Hunt J cover matters of both principle and practice in relation to the particularisation of cases on malice and aggravation of damages. It is now to be appreciated that these issues will be determined by the trial judge and not a jury. This factor does not derogate from the need for compliance by the parties with the requirements for the proper particularisation of cases in these regards. Practice Note 118 and the Rules amendments (effective from 1 September 2000), inter alia, are to ensure compliance with the Rules, the complete disclosure by way of particulars of each side's cases on various issues to eliminate, for example, unnecessary exchanges of correspondence in regard to particulars and will require the exchange of witness statements.

Particulars of Malice 22 SCR Pt 67 r 19 provides: "19. Where a plaintiff intends to meet any defence - (a) by alleging that the defendant was actuated by express malice in the publication of the matter complained of; (b) by relying on any matter which, under the Defamation Act, 1974, defeats the defence, then - (c) the plaintiff shall plead that allegation or matter of defeasance by way of reply; and (d) the particulars required by Part 16 rule 1 in relation to the reply shall include particulars of the facts and matters on which the plaintiff relies to establish that allegation or matter of defeasance". 23 Particular (a): "The imputations were false to the knowledge of the defendant". 24 Particular (b): "The imputations were published by the defendant with reckless indifference to their truth or accuracy". 25 These particulars were dealt with by Hunt J in Waterhouse/2GB at 67A and in Waterhouse/Mirror at 83B. 26 There are some general observations that need to be made. First, in this action the defendant is Mr Jones personally, otherwise the allegations of malice must be directed to identified servants and agents of a corporate defendant. Secondly, that which is alleged to constitute malice must be malice that actuates the publication (Waterhouse/2GB at 72F). 27 It is thus of critical importance that the defendant, by proper particulars supplied by the plaintiff, be informed of the case he will have to meet. Neither of these particulars are satisfactory in this regard. 28 In relation to the first, the defendant is entitled to know the facts, matters and circumstances upon which the plaintiff relies in asserting that the imputations were false "to the knowledge" of Mr Jones. 29 In respect of the second particular, the defendant is entitled to know of the matters upon which the plaintiff relies to establish by evidence or otherwise to legitimately assert the reckless indifference with which it is said Mr Jones published what he did. 30 Particular (c): The defendant wrongfully failed to make proper enquiries which would have established that the imputations complained of were false". 31 32 Particular (d): "The defendant wrongfully failed to give the plaintiff an opportunity to refute or explain the allegations made against him by the defendant". 33 Nothing in either of the Waterhouse decisions says that these are not particulars of matters that may properly go to the issue of malice. The plaintiff however is obliged to turn his mind to whether or not there existed at the time of publication any obligation upon the defendant to make inquiries, what they were and whether there existed an obligation to provide the plaintiff with an opportunity to refute or explain. The plaintiff should turn his mind as to whether or not any failure to comply with any such obligation is capable of proving something as to the state of mind of the defendant at the time of the relevant broadcast that would amount to "malice". (See Waterhouse/2GB at 68C, 77G). 34 There is nothing in these particulars that informs the defendant of any case at all he will have to meet on any proof of facts, matters or circumstances. If they are properly particularised, it will be a matter for the trial judge to determine whether or not, in the end, matters that have been proved by evidence or matters that may be inferred from evidence establish these heads of express malice. 35 Particular (e): "Improper motive being an intent to injure the plaintiff as evidenced by the unfair mode and manner of publication". 36 Particular (f): "Improper motive being an intent to injure the plaintiff as evidenced by the publication of the matter complained of which was excessive and unfair". 37 On any reading these appear to be stating fundamentally the same thing. It cannot be argued that an improper motive being an intent to injure the plaintiff, if it actuates the publication, cannot evidence express malice. 38 What is it about the mode and manner of publication that makes it unfair and thus represents an improper motive being an intent to injure the plaintiff? At the very least the plaintiff is obliged to particularise the "mode" and the "manner" of publication. In what way does the plaintiff assert that the publication was "excessive" and "unfair". Again upon the proper particularisation of these aspects and in the light of any evidence relied upon in support of them, it will be for the trial judge to determine whether they establish the existence of the improper motive in Mr Jones at the relevant time that motive being to injure the plaintiff by the publication sued upon. 39 Particular (g): "Programme intrinsically malicious". 40 This is a meaningless particular. An interesting aspect of Mr Harrigan's trial was that the jury made its findings as to the publication carrying the defamatory imputations based upon a transcript. No tape was available. The plaintiff, therefore, (as I understand it), is not in a position to rely upon the spoken words, tone, etc. "oozing ill-well". What is it about the words used as recorded in the transcript that points to the relevant state of mind, namely, "malicious" and in what sense? What part, if the plaintiff relies by reference to the transcript on particular parts, words, phrases and the like are relied upon? They should be particularised. 41 Particular (h): "Plaintiff not fairly treated by the defendant on the programme". This is similarly a meaningless particular. It is particularly offensive in the sense that it does not seem to add anything more to particulars (e) and (f) or to particular (j), (k) and (l) (below). If the plaintiff is relying upon (again absent the tape) something recorded in words of the transcript that can point to "treatment" by Mr Jones of the plaintiff; that that "treatment" was "not fair" those aspects should be particularised. In the end it will be a matter as to whether or not those matters amount to the requisite state of mind in Mr Jones actuating the publication complained of. 42 Particular (i): "Wrongful failure to retract and apologise". Here we are not concerned with any failure to apologise. Here we are not concerned with any failure to apologise being available as a component for ordinary compensatory damages (Clarke v Ainsworth (1996) 40 NSWLR 463). Nor are we concerned with a failure to apologise being improper, unjustifiable or lacking in bona fides in support of a claim for aggravated damages. What is here asserted is that Mr Jones was actuated by express malice by reason of what is said to have been a wrongful failure to retract and apologise for that publication actuated by that state of mind. These are the matters to which proper particulars should be directed if the plaintiff, in the end, proposes to assert express malice on the part of Mr Jones by reason of this failure to apologise. This the plaintiff has clearly failed to do. In Waterhouse/2GB at 68F Hunt J dealt with similar allegations on the question of absence of good faith but in the context of the protected report defence. His Honour's general observations there are apposite. 43 This is a hopeless particular and without more cannot be said to point in a substantive way to the availability of what is asserted as a matter going to malice in any event. 44 Particular (j): "The defendant was carrying out a vendetta against the plaintiff". 45 Particular (k): "The defendant published the defamatory imputations against the plaintiff in the course of a vendetta he was carrying out against the Super League, the NRL, the Brisbane Football Team and Ex-ARL Teams for purposes including the assisting of South Sydney League Team". 46 Absent particulars these assertions seem to be saying, in effect, the same thing. But they are examples of the necessity to specify facts, matters and circumstances: from which it will be argued that there was a "vendetta" against the plaintiff which actuated Mr Jones in publishing, as part of that vendetta, the material complained of. Without any such particulars these two ((j) and (k)) disclose nothing to the defendant. 47 Particular (l): "Dishonest tactics of the defendant in only referring to selected statistics". 48 This particular, not unlike others, is a rhetorical particular but one apparently founded in some factual matter known to the parties but not necessarily to the Court. What where the statistics referred? On what basis was the reference selective; on what facts and matters does the plaintiff rely in asserting that that selective reference to statistics constituted a "dishonest tactic" (whatever that might mean) that reflects upon the state of mind of Mr Jones as, in the end, evidencing malice? 49 The nature of further particulars to be supplied is quite clear. 50 Particular (m): "The plaintiff will also rely on the particulars of aggravated damages". 51 There may be instances were matters to be relied upon for the purposes of aggravation of damages are capable, if properly articulated and particularised, of being relied upon as proving directly or by inference that at the time of the publication the defendant was actuated by malice. The plaintiff is obliged to identify such matters by way of particulars of malice and not by a generalised reference to (in this case) seven heads of aggravated damages. 52 As the new Practice Note and Rules will require particularisation appended to pleadings it is all the more desirable that there be clarity in this regard for the efficient conduct by the trial judge of the litigation of all issues. 53 The particulars in the Reply of Express Malice will be struck out. 54 Before moving to the particulars of aggravated damages there is one matter on which some observations should be made even though they were not the subject of argument. 55 Paragraph 3 of the Reply purports to particularise the plaintiff's case in defeasance of the defence of comment (s 32(2)). 56 The substantive matter in defeasance is that the comment did not represent the opinion of the defendant. It is stated that the comment was not the honest expression of Mr Jones' opinion (no other particulars are provided). It is then stated "the defendant knew the comment to be untrue". What is to be understood by the concept of knowing that an expression of an opinion is "untrue"? The opinion is either held or it is not. If it is held, is it honestly held? If it is an opinion and it is honestly held, is it an opinion based on proper material? These are matters that might give rise to problems in the trial and should be clarified. 57 The final particular in defeasance of the defence of comment is simply that the plaintiff relies upon the particulars of "malice". Perhaps some light will be thrown on this component of the plaintiff's case in reply when proper attention is given to the particularisation of his case on malice (see however Cawley v Australian Consolidated Press Limited (1981) 1 NSWLR 225).

Particulars of Aggravation of Damages 58 It is desirable to repeat what Hunt J said in Waterhouse/2GB at 74-75: "Aggravated damages are more properly called aggravated compensatory damages. They are awarded where either the circumstances of the publication of the matter complained of or the defendant's conduct then or subsequently make the injury to the plaintiff worse--when the ordinary compensatory damages awarded for the publication itself may be increased. They are not awarded as a separate amount. Aggravated compensatory damages are usually awarded only in relation to the injury to the plaintiff's feelings: McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86 at 104, 107; Cassell and Co v Broome Ltd [1972] AC 1027 at 1071, 1125. They are not, however, necessarily so limited, and there may be conduct which has the effect of increasing the injury to the plaintiff's reputation as well. What were sometimes called aggravated damages in the older cases have been discovered upon later analysis to be in reality punitive damages: see Uren v John Fairfax and Sons Ltd (1966) 117 CLR 118 at 151-152. Since the abolition of punitive damages (Defamation Act 1974, s 46(3)(a)), such damages may no longer be awarded. Damages for defamation are now limited to compensation for the harm actually suffered by the plaintiff. Section 46(2) is intended to ensure that only truly compensatory damages are awarded. To underline that limitation, s 46(3) not only provides for the abolition of punitive damages but it also restricts an award which includes aggravated damages based upon the malice or other state of mind on the part of the defendant to the situation where the plaintiff is aware of that state of mind: Toomey v Mirror Newspapers Ltd [1985] 1 NSWLR 173 at 186. Conduct on the part of the defendant which is relevant to the issue of aggravated damages need not be malicious, but it must be capable of amounting to conduct which was in some way unjustifiable, improper or lacking in bona fides: Bickel v John Fairfax and Sons Ltd (at 497); Mirror Newspapers Ltd v Fitzpatrick (at 653). 59 Bearing in the mind the opening words of the allegation referring to the plaintiff's knowledge, particular 1 is not the subject of dispute. 60 Particular 2: "The defendant's knowledge that the imputations were false". This is deficient in the same respect as the first particular of malice. 61 Particular 3: "The reckless indifference of the defendant to the truth or falsity of the imputations". 62 The same comments apply with respect to particular 2. 63 Particular 4: "The excessive language, sensationalism and tone of the matter complained of". 64 What does this particular inform the defendant about in relation to its conduct, the nature of that conduct in the relevant sense and the effect of that conduct upon the "relevant harm"? The answer must be "nothing". If the plaintiff is capable of particularising in a proper way this allegation to make it relevant and a matter of substance on the issue of aggravated damages he should do so and the matter will ultimately be determined at trial. 65 Particular 5: "The conduct of the defendant which has caused the plaintiff to fear or worry that the defamation may be repeated". 66 Particular 6: "The manner in which the defendant has treated the plaintiff and which has caused his hurt and injury to be increased". 67 The deficiency in these particulars is patent. Both particulars purport to go to matters that lie at the heart of a claim for aggravated damages by reference expressly to "conduct of the defendant" and the "manner in which the defendant" is said to have "treated the plaintiff". There is not a single clue as to what the case the plaintiff proposes to make in relation to each subject is. In respect of particulars such as these the obligation upon a plaintiff properly to inform the defendant of facts, matters and circumstances is a heavy one, not only in fairness to the defendant but in the plaintiff's own forensic interests. 68 Particular 7: "The malice of the defendant who denigrated the plaintiff for the ulterior purpose of carrying out a campaign to promote a particular football club". 69 The same observations can be made in respect of particular 7 as were made in respect of particulars 5 and 6. Here there is a particular obligation because the plaintiff has chosen to rely upon the malice of the defendant (s 46(3)); this is an additional component of the particularisation of this aspect of the case on aggravated damages which requires especial amplification. 70 Particulars 2 to 7 of the Particulars of Aggravated Damages will be struck out. 71 One other matter that arose during the course of argument, and in a tangential way, was a complaint by the plaintiff as to the defendant's particularisation of its justification defence. 72 By letter dated 7 June 2000 (part of Exhibit 1 on the application) the plaintiff's solicitors requested that the defendant provide particulars of the facts, matters and circumstances upon which he willy rely to establish the truth of the imputations. The reply (letter dated 3 August 2000) was simply to the effect that the defendant relies upon the "facts, matters and circumstances set out in discovered document number 5". 73 Apparently discovered document number 5 is some statistical information. The plaintiff will have the benefit of that limitation upon the defendant's particularisation of its case. I am not presently concerned with any question of admissibility of the statistical information. Nor am I in a position to determination whether that information is an adequate particularisation of the defence of truth of the three found imputations. 74 All that can be said at the moment is that the defendant in due course will be required to provide proofs of evidence of any witnesses it proposes to call in support of its plea and will particularly be obliged to comply with any specific directions as to "expert" evidence. 75 The plaintiff's purported particularisation of his case on malice and aggravated damages was grossly deficient and cannot be sustained by reference to what is perceived to have been "twenty year old practice". An examination of the decisions of Hunt J in the Waterhouse cases provides no support for the particulars supplied. Indeed, in various of the authorities to which I have referred his Honour has been at pains to be critical of the formulation of particulars in the manner with which I have been concerned. 76 On the other hand the manner of the taking of the objection by the defendant by merely referring to authorities and not adopting the hitherto usual course (with or without protest) of seeking further and better particulars, was not very satisfactory either. The dispute that flowed from it has enabled me, I trust, to give some guidance as to what the Court's expectation will be as to the conduct of the preparation of litigation on issues such as these. Despite these circumstances the appropriate order for costs, in my view, is that the costs of the defendant's application be paid by the plaintiff. 77 The formal orders are:

1. The particulars in paragraph 2 of the Reply filed on 18 June 2000 are struck out.

2. The plaintiff has leave to file an Amended Reply within 14 days providing particulars of the allegations of express malice in accordance with these reasons.

3. The particulars in the Third Amended Statement of Claim of Aggravated Damages (save for particular 1) are struck out.

4. The plaintiff within 14 days has leave to file a document headed in the action and described as " Particulars of Aggravated Damages " providing full and proper particulars of that claim in accordance with these reasons.

6. The matter will be listed for orders and directions for the conduct of the balance of the trial in the Defamation List on 1 September 2000.

7. Exhibits A and 1 on the application are returned.

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