Hill v Comben [1992] QCA 20

Court of Appeal (Qld)|1992-03-06|Before: Pincus JJ

IN THE COURT OF APPEAL [1992] QCA 020

The appellants, who are plaintiffs in a defamation action against the defendant, sought by summons before the Master to have the defence struck out or, alternatively, that the defendant provide further and better particulars of the defence. They succeeded as to paragraph 13 of the amended defence set out below, but the Master's decision was reversed by McPherson S.P.J. (as His Honour then was). The action is based on a media statement by the defendant, the Minister for Environment and Heritage in the Queensland Government, in which he criticised a proposed "land swap" negotiated between the previous government and the plaintiff company, of which the other plaintiffs are directors, in which the plaintiff company gave to the Government two properties in Western Queensland as national park in exchange for some land for tourism development on South Stradbroke Island. The appellants' sole complaint before us was with respect to paragraph 13 which alleges:

The appellants advanced two main contentions. The first was that if, as the respondent accepted, the allegation in paragraph 13 was one of fair comment only, it did not, as His Honour thought, provide a defence to the publication of defamatory assertions the subject of that comment. This contention alone would not necessarily, as the appellant accepted, require that any different order be made on appeal. The second was that paragraph 13 is not an allegation of a defence under s.375 of the Criminal Code; it is in such a defence unnecessary to allege the truth of the facts; and the allegation must be made in respect of the comment, not that it is on "matters of public interest", but that it is respecting one or other of the matters stated in sub-ss. (1) to (8) of s.375.

By s.370 of the Criminal Code publication of defamatory matter is made unlawful unless such publication is protected or justified or excused by law. Section 375 provides that it is lawful to publish a fair comment respecting any one of eight enumerated topics, the two "principally relied on" by the respondent (His Honour's judgment at 8) being:-

"(2) To publish a fair comment respecting the public conduct of any person who takes part in public affairs, or respecting the character of any such person, so far as his character appears in that conduct;"

"(3) To publish a fair comment respecting the conduct of any public officer or public servant in the discharge of his public functions, or respecting the character of any such person, so far as his character appears in that conduct."

The section goes on to state that whether a comment is fair is a question of fact, and that if it is not fair and is defamatory, its publication is unlawful.

By s.376 it is made lawful to publish defamatory matter if the matter is true and if it is for the public benefit that the publication complained of should be made.

These provisions apply, to the exclusion of the common law, to civil defamation in Queensland: The Defamation Law of Queensland, s.9; Hall-Gibbs Mercantile Agency Ltd v. Dun [1910] HCA 66; (1910) 12 C.L.R. 84; Telegraph Newspaper Co. Ltd v. Bedford [1934] HCA 15; (1934) 50 C.L.R. 632; West Australian Newspapers Ltd v. Bridge [1979] HCA 10; (1979) 141 C.L.R. 535, 545, 547.

The rolled-up plea, as the plea in paragraph 13 has been called, has a long though not distinguished history at common law. Given that truth was a defence at common law it might reasonably be thought that the plea was one of justification so far as the statement consisted of fact and of fair comment so far as it consisted of opinion. Not surprisingly, there was a good deal of confusion about that but, in the end, it appears to have been resolved, as a matter of practice rather than logic, that the plea was one of fair comment only: see Sutherland v. Stopes [1925] A.C. 47 at 62-3, 75-8, 99. The respondent accepts that this is so but argues that the plea provides a defence to the publication of defamatory facts the subject of the comment. His Honour acceded to this argument (at 11) following Orr v. Isles (1965) 83 W.N.(Pt. 1) (N.S.W.) 303 at 321, 322, 329, 330.

The starting point in considering this contention must be the construction, in its context, of s.375. In the absence of ambiguity an appeal to decisions upon the common law can be justified only if, in this case, the phrase "fair comment" had, prior to 1900, acquired a technical meaning which included in it, where defamatory facts and a comment on them are published, both the comment and the published facts; and the phrase is used in the Code with that technical meaning. Compare Sungravure Pty Ltd v. Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 C.L.R. 1 per Mason J. at 22. The same approach has been taken in relation to other codifying statutes: Advance (N.S.W.) Insurance Agency Pty Ltd v. Matthews [1989] HCA 22; (1989) 166 C.L.R. 606 at 615; Gamer's Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd [1987] HCA 30; (1987) 163 C.L.R. 236 at 243-244.

No authority was cited to support a contention that the phrase "fair comment" had acquired such a technical meaning by 1900 and the true position appears to have been to the contrary: Odgers on Libel and Slander (1905) at 188, 192. Moreover, the plain meaning of s.375 and its context show that factual statements must be defended under some other provision: see Bamberger v. Mirror Newspapers Ltd [1968] Qd.R. 593 per Lucas J. at 607-608. Accordingly we would conclude that the defence of fair comment under s.375 does not provide a defence to publication of defamatory facts the subject of that comment. If it is unclear whether a particular statement is one of fact, comment or mixed fact and comment, a defendant may need to plead truth and public benefit (or some other defence) if and insofar as the statement is fact, and one or more of the subsections of s.375 if and insofar as the statement is comment.

Whether or not the rolled-up plea is an appropriate plea of fair comment at common law, it is not under the Code. Although the fairness of a comment may often, even generally, be dependent on the truth of the facts upon which it is made (Bjelke Petersen v. Burns [1988] 2 Qd.R. 129 at 131) the truth of those facts is no more than evidence of the fairness of the comment. It is an unnecessary allegation in a pleading raising fair comment only. Although the question was not argued, we would add that the allegation that the statements were made in good faith and without malice is also an unnecessary allegation in such a pleading. And the allegation that "the facts ... are matters of public interest" fails to advert to the specific requirements of s.375. Paragraph 13 is misleading and should be struck out.

The appeal will be allowed with costs here and below. Paragraph 13 of the defence is struck out; the defendant will have leave to re-plead within 21 days.

CATCHWORDS: DEFAMATION - FAIR COMMENT - Appellants seek to have defence struck out on basis "rolled up" plea of fair comment not an appropriate plea in Queensland - whether phrase "fair comment" was technical meaning to justify resort to common law authorities - whether plea adverts to specific requirements of s.375 of the Criminal Code

C.E.K. Hampson Q.C. and with him D.J. McGill for the Respondent

Solicitors: Blake Dawson Waldron for the Appellants

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Reasons for judgment of Davies and Pincus JJ.A. jointly and Byrne J. separately

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"THE APPEAL BE ALLOWED WITH COSTS HERE AND BELOW. PARAGRAPH 13 OF THE DEFENCE IS STRUCK OUT; THE DEFENDANT WILL HAVE LEAVE TO RE-PLEAD WITHIN 21 DAYS."

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Defamation - pleading - "rolled-up plea" of fair comment inappropriate to defence under s. 375 Criminal Code

C.E.K. Hampson Q.C. and with him D.J. McGill for respondent

Solicitors: Blake Dawson and Waldron for appellants

This appeal raises pleading points concerning the statutory defence of fair comment in a defamation action: see s. 375 of the Criminal Code. The most important is whether it is permissible in pleading such a defence to aver, in the fashion of the "rolled-up plea", that "insofar as the words used in the said statement consist of statements of fact, they are true in substance and in fact". But that is not the only point. Paragraph 13 of the pleading contains two plainly inappropriate allegations. One is that the publication was made in "good faith and without malice". A defendant who sets up fair comment need not prove and therefore should not allege his bona fides in publishing the comment. Secondly, the concluding words, "which are matters of public interest," raise an irrelevant issue. At common law proof that the words complained of are comment on a matter of public interest was essential to a defendant's success on a plea of fair comment: Peter Walker Ltd v. Hodgson [1909] 1 K.B. 239, 249; Gatley On Libel and Slander, 8th ed. (1981), pp. 291, 470. However, s. 375 of the Code contains its own prescriptions of the ingredients of the fair comment defence in Queensland; and the section does not require that the comment be as to a matter of public interest. The unnecessary reference to "matters of public interest" could distract the jury. It too is embarrassing and should be struck out. This leaves for consideration the appropriateness of the allegation, characteristic of the rolled-up plea, that "insofar as the words used in the said statement consist of statements of fact, they are true in substance and in fact."

In a jury's evaluation of the statutory defence of fair comment it is the fairness of the opinion expressed, not its accuracy, which matters. However, at common law, comment, to be fair, generally,[1] must be founded on true facts: Jeyaretnam v. Goh Chok Tong [1989] 1 W.L.R. 1109, 1113-1114. There should, says Gatley at p. 291, be "a basis of fact for the comment, contained or referred in the matter complained of".[2] The argument on this appeal assumed that this notion inheres in s. 375: see Bjelke-Petersen v. Burns & Australian Broadcasting Commission [1988] 2 Qd.R. 129; Sid Ross Agency Pty Ltd v. Actors and Announcers Equity Association of Australia [1971] 1 N.S.W.L.R. 760, 772. Yet doubts persist as to the extent to which this aspect of the common law is reflected in the statutory defence: Cawley v. Australian Consolidated Press Ltd [1981] 1 N.S.W.L.R. 225, 236-237. Accepting, without deciding, the correctness of the assumption, two issues arise: (i) whether reference to the truth of supporting statements of fact is essential to the proper pleading of a s. 375 defence; and (ii) if not, whether such an unnecessary contention should be struck out as tending "to prejudice, embarrass, or delay, the fair trial of the action": R.S.C. O. 22, r. 32.

It is, I think, instructive to consider the position which obtained in England. Broadly, there were two fair comment pleas: the general plea, as Denning L.J. called it in Cunningham-Howie v. F.W. Dimbleby & Sons Ltd [1951] 1 K.B. 360, 363, and the "rolled-up" plea. The general avers that the published words "were fair comment ... upon a matter of public interest": Bullen & Leake & Jacobs's Precedents of Pleadings, 12th ed. (1975), p. 116; McLoughlin v. Kutasy [1979] 2 S.C.R. 311. It was mainly used where a defendant intended to rely on facts other than, or in addition to, those stated in the publication complained of to base the comment. Making out the defence depended on proof of a "sufficient substratum of fact stated or indicated in the words complained of" (Halsbury's Laws of England 4th ed. vol. 28 para. 134). Nevertheless the general plea did not allege the truth of underlying facts. Proving truth was but a step in showing that the published comment was fair. Truth was not a material fact on which a defendant "relies to support his ... defence": see R.S.C. O. 22, r. 1. Instead it was a subsidiary matter: something "implicit" in the plea: Lord v. Sunday Telegraph Ltd [1971] 1 Q.B. 235, 240. Particulars could be required identifying the facts on which the comments were based: Burton v. Board [1929] 1 K.B. 301; Cunningham-Howie at 364. However, the absence of an allegation of truth of supporting facts did not render the pleading demurrable: Hopman v. Mirror Newspapers Ltd [1960] N.S.W.R. 559, 563-564; R.E. Brown, The Law of Defamation in Canada, (1987) vol. 2 p. 871.

The "rolled-up" plea specifically alleged that which the general plea implied: truth of the facts supporting the opinion. In its usual form it particularised the facts said to sustain the comment, limiting them to those mentioned in the allegedly defamatory publication itself. So the additional words in the rolled-up plea served the function of supplying particulars which otherwise could have been ordered of the general plea. That at least was how "insofar as the words complained of consist of statements of fact, they are true in substance and in fact" came to be viewed after Sutherland v. Stopes [1925] A.C. 47 authoritatively established that the rolled-up form was not a plea of justification. Evading particulars may even have been the object inspiring the plea: Truth (N.Z.) Limited v. Avery [1959] N.Z.L.R. 274, 278; see, however, Winfield & Jolowicz on Tort, 13th ed. (1989), pp. 327-328.

In England the rolled-up plea succeeded in avoiding the need to provide particulars of the substratum of facts. Though with growing distaste for the result, English Courts routinely refused to order particulars of the facts relied upon in support of the plea: Tudor-Hart v. British Union for the Abolition of Vivisection [1938] 2 K.B. 328. In earlier times, when particulars were not so freely ordered as now, such an order would, it was thought in England, oblige the defendant to state the evidence by which the supporting facts particularised by the plea were to be proved: The Aga Khan v. Times Publishing Company [1924] 1 K.B. 675, 684; see also Salmond & Heuston on The Law of Torts, 19th ed. (1987), pp. 203-204. In Australia a more liberal view prevailed: see Trengrove v. Callendar [1901] VicLawRp 45; (1900) 26 V.L.R. 249 where particulars were ordered of all the facts the defendant proposed to prove to support the comment; and Clarke v. Norton [1910] ArgusLawRp 97; [1910] V.L.R. 494. A rule change was necessary in England to achieve such an outcome. That came in 1949. It required of the rolled-up plea particulars (i) of the substratum of facts; and (ii) "stating which of the words complained of are statements of fact" rather than comment: English R.S.C. O. 82, r. 3(2). This initiative deprived the rolled-up plea of its only advantage and caused the plea to disappear: Lord v. Sunday Telegraph at 240; Carter-Ruck on Libel and Slander, 3rd ed. (1985), p. 102; Gatley, p. 471, fn 4; Bullen & Leake & Jacob's Precedents of Pleading, 13th ed. (1990), pp. 1272, 1277; Street, The Law of Torts, 8th ed. (1988), p. 423. In England the general plea is now used even where all the supporting facts are mentioned in the words complained of.

There is no warrant for reviving the rolled-up plea in Queensland. In this State it is, as Moffitt J. said in Ipec Insurance Ltd v. Shapowloff (1967) 85 W.N. (N.S.W.) (Pt 1) 692, 696 in reference to a New South Wales analogue to s. 375, "sufficient to plead the elements of the defence prescribed by the Act": cf. Sharpe v. Woolley (1899) 9 Q.L.J. 175; White Industries Ltd v. Irving (1981) Queensland Supreme Court Practice Decisions [7507] at p. 12,056. A pleading adopting the relevant words of s. 375 of the Code cannot disadvantage the plaintiff. The Court has ample power to order particulars of the constituents of the defence: cf. Central Risks Ltd v. New English Library Ltd [1990] 1 W.L.R. 183; Denham v. Mirror Newspapers (1966) 68 S.R. (N.S.W.) 1, 11; Lord v. Sunday Telegraph; and, generally, N.R.N.Q. (a Limited Partnership) v. M.E.Q. Nickel Pty Ltd [1991] 2 Qd.R. 592. The additional words of the rolled-up plea are superfluous.

That an allegation in a pleading is otiose does not require it to be struck out. Sometimes unnecessary allegations are convenient: for example, where, in addition to pleading a concise statement of the material facts, conclusions of law like estoppels are set out. But an unnecessary contention which may inhibit a fair and efficient trial or is otherwise embarrassing should not stand: Knowles v. Roberts (1888) 38 Ch.D. 263; The Supreme Court Practice (1991) p. 338.

The rolled-up plea has received considerable criticism: see Ipec Insurance at 697-698; the Report of The Committee on Defamation (1975, CMND 5909) (Faulks Committee) para. 176; and Sir Frederick Pollock's acerbic Note, Volume 41 Law Quarterly Review (1925) p. 126. Its mixture of particulars (of supporting facts) and essentials (fair comment) is confusing. The rolled-up plea could prejudice the efficient conduct of the interlocutory phases of this case. The plaintiffs will find it difficult to plead to; and in principle they should defend only material facts, not plead to particulars or to a subsidiary issue: J. Jacob and I.S. Goldrein, Pleadings: Principles and Practice, (1990) p. 52. The plea may also complicate the trial, especially if the defendant now amends to raise an additional defence under s. 376 (truth and public benefit).

The rolled-up plea has an unfortunate potential and no utility.

[1] Where the supporing facts all originate in a privileged occasion, the common law allows fair comment to be founded on a fair and accurate report of them even if the facts are not truly stated: Brent Walker Group PLC v. Time Out Ltd [1991] 2 Q.B. 33; J.G. Fleming, The Law of Torts, 7th ed. (1989), p. 560.

[2] Perhaps substantial truth suffices: Australian Broadcasting Corporation v. Comalco Ltd (1986) 12 F.C.R. 510, 597-598.

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