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).