and:
"14. It is to be observed that Hunt J described the course adopted by the plaintiff in Burrows as " acceptable ". He did not hold that it was mandatory, or that it was the only acceptable mode of pleading in the circumstances which then pertained".
17 After referring to Burrows and other cases Her Honour said:
"21. The above review of the cases drawn to my attention illustrates the diversity of the circumstances which might give rise to considerations of whether separate but related publications should properly be regarded as one. Related publications may be distinct items contained in a single edition of, for example, a newspaper ( Rakimov , Lucas ); or may be contained in successive daily or weekly (or other) editions of the same publication ( Burrows ). No doubt many other situations will arise. One example that comes to mind is the publication of a news item illustrated by a photograph, or a cartoon. Others are episodic items, broadcast on radio or telecast, separated by advertisements or by unrelated segments.
22. Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field.
…
30. All of this would suggest that the two items could properly be seen as a single publication. But that does not end the matter for present purposes. It is only if that is the only view reasonably open that it would be appropriate to interfere with the way the plaintiff has elected to fashion her case.
31. The plaintiff argued that identification of the publication is a jury question: see Defamation Act 1974, s7A(3). I do not accept that this is so. The matters assigned to a jury for determination are whether the imputation(s) pleaded is or are conveyed, and if so, whether it is or they are defamatory. It is implicit in this that the jury will also decide any contested issue of publication; that is, whether the defendant in fact published the matter complained of. But this does not require the jury to determine the limits of "the matter complained of". Delineation of "the matter complained of" is, in the first instance, quintessentially a matter for the plaintiff. But the question whether the matter of which the plaintiff complains is reasonably capable of being pleaded as a single matter, or is such that it can only properly be pleaded as multiple publications, is a pleading question and is not, accordingly, to be determined by a jury.
32. The difficulty I now have is whether, while recognising that all the tests I have mentioned would point to the reading of the two items together, the pleading in the way selected by the plaintiff is so untenable, or so unfair, as to permit or warrant the striking out of the pleadings of the two items separately. I perceive no significant unfairness. No real difficulty can arise in the pleading of defences where the imputations pleaded are identical and the accusations contained in the items are, in substance, identical. Any questions of damages will be examined in the light of the publication or publications as a whole".
18 In Phelps (paras 22-30) Her Honour upheld the right of a plaintiff to frame his action as he chooses subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen (Ron Hodgson p 480). Phelps was approved in Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 (paras 54-56) and in The Age Corporation Ltd v Beran [2005] NSWCA 289 (paras 40-41).
19 In The Age Corporation Hodgson, JA said:
"41 In my opinion, McColl JA endorsed Phelps , but held that the relationship between the two parts published in The Sydney Morning Herald was such that, not only could the two parts properly be seen as a single publication, but that this was the only view reasonably open. McColl JA held in effect that this was not one of those cases, referred to at [10] in Phelps , where reasonably-minded people could consider either classification, that is as a single entity or as a number of entities, to be valid.
42 There may be cases where reasonably-minded people could consider either classification valid, so that it is prima facie open for a plaintiff to plead the parts as individual publications, and also plead their combination as a publication, but nevertheless where this should not be permitted because it introduces confusion and complexities into the case wholly unwarranted by any advantage to the plaintiff, and thus can be considered embarrassing. It is possible that this was the approach taken by Adams J in the Plaintiff's case against John Fairfax, and that McColl JA endorsed this as a further reason for dismissing the appeal.
43 The question then is, is the material as published in The Age such that the only view reasonably open is that this was one publication? In my opinion, plainly not. No part of the second section of The Age material appeared on page 1; and the first section on page 1 did not indicate that what was on page 13 was to be read together with what was on page 1 as part of the same whole. There were none of the indications of unity of the two sections displayed in The Sydney Morning Herald material and referred to earlier. Reasonable readers could well read what appeared on page 1 of The Age and not read what appeared on page 13. In my opinion, this was a case where reasonably-minded people could regard the two sections as separate publications, and could also regard them as part of a whole: that is, they could regard both possible classifications as being valid".
20 In order to succeed on its strike out application on the ground of unreasonableness, the defendant must establish that not only could the three broadcasts properly be seen as a single publication, but that this is the only view reasonably open (Phelps para 30, The Age para 41). This is another way of saying that it must establish that the plaintiff's claims as pleaded are so obviously untenable that they cannot possibly succeed or that they are manifestly unarguable (General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125, p 129).
21 Entrenched in the law of defamation is the principle that each publication of defamatory matter constitutes a new and separate tort for which a plaintiff could sue, and gives rise to a separate cause of action (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, paras 27, 124, 197). As each separate communication of defamatory matter is actionable, attention is necessarily directed to identifying the occasion on which the publisher made the communication and committed the tort of defamation. The tort will be complete when, by the communication of defamatory matter in comprehensible form to another, damage to reputation is done Gutnick (para 44).
22 As stated in Phelps (para 24) the answer to the question whether related matter published on different occasions should be regarded as one or as a composite involves assessment of the particular facts and circumstances in each case. Where the publications are transient in nature, such as radio and television broadcasts, significant weight will ordinarily be given to the intervals between them, to the context of other matter in which each was presented, and to the commonality or diversity of their content. The question should usually be resolved by taking a common sense approach to the evidence.
23 It follows that questions of imputations or meanings will not arise until the content of the matter complained of in each case has been determined. A "strike in" order which requires the plaintiff to plead the whole of the publication is ordinarily available to the defendant only where a viewing (reading or listening) of the whole is capable of altering or qualifying a defamatory meaning claimed to be conveyed by the part which the plaintiff has chosen to plead. Gordon and Ron Hodgson do not assist in defining the scope and content of a publication claimed to contain a libel. Their relevance is to the issue of the meaning of the matter found to have been published.
24 In this case each broadcast is of and concerning the plaintiff. The vital question is whether the only view reasonably open is that the promotion, the programme, and the second programme constituted one publication. Unlike a newspaper case in which a number of related articles are published in the one edition, this is not a case in which there are difficulties of delineation. The differences between the occasion and content of each broadcast are self-evident from a viewing of each, and from the transcripts. Each is discrete although related, and each is arguably defamatory of the plaintiff. In my opinion each broadcast is separate and distinct from the other and is separately actionable at the suit of the plaintiff. That it may have been acceptable in this case (a question I do not decide) for the plaintiff to plead either the two chosen, or all three, broadcasts as one (Burrows) does not mean that it was unreasonable for him not to do so. The plaintiff elected to sue on the first and second broadcasts, and not on the third. In my opinion there is nothing unreasonable about that.
Conclusion
25 The defendant has failed to show that the three broadcasts can only be properly pleaded as a single publication, and that the only view reasonably open is that they constituted one publication. The promotion and the programme afford the plaintiff separate causes of action and it is, therefore, eminently reasonable for him to plead them as he has.
26 The orders of the court are: