Edgar v Freeman [1915] VicLawRp 2; [1915] VLR 16

Rassam v Budge [1893] 1 QB 571

The defendant has applied to amend his defence in defamation proceedings. The plaintiff opposes the amendment. The defendant has, in his defence, pleaded and sought to justify, and raise a defence of qualified privilege in respect of, imputations other than those pleaded by the plaintiff which arise not only from the words relied on by the plaintiff as giving rise to the defamatory imputations pleaded by him but also from other words. Counsel for the plaintiff contends that this is impermissible. Counsel for the defendant, on the other hand, contends that pleas of this kind are open in the circumstances of this case.

The plaintiff complains that he has been defamed by the terms of a letter dated 1 July 1997 written and signed by the defendant and addressed and sent through the post to Mr David Baumgartel, the manager of the Cottesloe Golf Club (Inc), in which the defendant suggests that the character of the plaintiff is not such as to make him suitable for membership of that club.

In para 4 of the re-amended statement of claim the plaintiff sets out what he says was the natural and ordinary meaning of the words complained of. After pleading the defamatory character of those imputations the plaintiff goes on to plead, in para 6 of his amended statement of claim, that:

"In circumstances which are not precisely known to the Plaintiff, but with the knowledge and consent of the Defendant, and or his authority express or implied Mr Baumgartel republished the said words to the members of the Club Committee. Such republication was the natural and probable consequence of the publication by the Defendant of the said words and or occurred because Mr Baumgartel was under a duty to republish the words in the manner he did ... . The Plaintiff pleads republication as going only to damages."

I was told by counsel for the plaintiff that, by the last sentence of para 6, he intended to make it plain that the plaintiff pleaded no separate cause of action in respect of the republication but claimed only that the damages arising from the original publication were thereby aggravated. Counsel for the defendant accepted that this was so.

The defendant, in his minute of further re-amended defence, admits that he wrote and signed the letter addressed to Mr Baumgartel, but says that he handed it to a Mr Colin Howard on or about 1 July 1997. At that time, he says, there were attached to it various newspaper cuttings, the effect whereof is pleaded in para 3(b) of the minute. The defendant goes on to plead in para 3(d) of the minute that he:

"says that at a meeting immediately following the delivery of the letter and attachments ('the first meeting') the letter and attachments were read by Colin Howard in the company of David Baumgartel and the defendant who contemporaneously explained and qualified certain parts of the letter, as pleaded in the next sub-paragraph."

Then, in para 3(e), the defendant pleads the effect of various explanations and qualifications of the statements made in the letter which were made by him at the first meeting. He goes on to plead, in paras 3(f), (g) and (h) that:

"(f) [he] says that subsequently in or about early July 1997 at a meeting between the Manager of the Club (David Baumgartel), the Captain (Colin Howard), the President (Kevin Johnson) and the defendant in the office of the Manager of the Club ('the second meeting') the defendant discussed the letter and repeated, in substance, the qualifications and explanations which he had given to Howard and Baumgartel at the first meeting ('the second qualification');

(g) at the second meeting the letter and attachments were first published to the Club President contemporaneously with the second qualification;

(h) [he] says that the letter was not published to any person other than Baumgartel, the Club Captain and the Club President."

In para 4 of the minute the defendant pleads what he says were "the natural and ordinary meaning[s] of the words in the letter read with the attachments, and as qualified and explained by the first qualification ... ". In the course of so doing he denies, subject to two exceptions, that each of the defamatory imputations pleaded by the plaintiff arose from the letter when read in this wider context and pleads, and seeks to justify, the alternative meanings put forward by the defendant.

In para 6 of the minute the defendant pleads that the "said words" were published by the defendant on an occasion of qualified privilege. That plea seemingly refers to the "words" when read with the attachments and as qualified and explained by the defendant. So much is apparent from the "Particulars of Occasion of Qualified Privilege" pleaded under para 6 of the minute, especially particular (d) thereof which is to the effect that the defendant "had reasonable grounds for honestly believing what he wrote in the letter, as explained and qualified by the qualification".

It is apparent from the aforegoing that the plaintiff relies only upon the publication of the letter dated 1 July 1997, without more, which, he says, was posted to Mr David Baumgartel. It seems from the statement of claim (albeit it could be clearer in this respect) and from what was said by counsel for the plaintiff that it is only the publication of that letter to Mr Baumgartel, as the recipient thereof, which is relied upon as giving rise to a cause of action in defamation. It is also apparent that the defendant, on the other hand, pleads that the letter was handed to Colin Howard by the defendant at a time when it had attached to it the newspaper cuttings to which he refers and, seemingly, that the first publication of the letter, and its attachments, took place at the meeting referred to by him as "the first meeting", being that which followed the delivery of the letter and attachments and at which the letter and attachments were read by Mr Howard in the company of Mr Baumgartel and the defendant, who then explained and qualified parts of the letter.

There is no doubt that in considering whether or not defamatory imputations arise it is necessary to take into consideration, not only the actual words used, but their context (see Nevill v Fine Arts & General Insurance Co Ltd [1897] AC 68 at 72, per Lord Halsbury LC). Gatley on Libel and Slander, 9th ed, para 3.28, suggests that it follows from the fact that the context and circumstances of the publication must be taken into account that the plaintiff cannot pick and choose parts of the publication which, standing alone, would be defamatory. There can, I think, be little doubt as to the correctness of that proposition (see Charleston v News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 AC 65 and Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410). Thus, where a newspaper article refers to another report in the same issue either party is entitled to have that other report read as part of the context in which the meaning of the words complained of is to be determined (see Thornton v Stephen [1837] 2 M & Rov 45 and Gatley, supra, para 3.30). It may, in an appropriate case, even be necessary to go outside the document in which the words complained of are contained in order to obtain the necessary context (see Smyth v MacKinnon [1897] 24 R 1086).

That being so, it seems to me to be plain that a defendant should be entitled to raise contextual material in the defence where that contextual material has not been pleaded by the plaintiff and where it might affect the meaning put upon the words complained of by the ordinary reasonable reader.

It seems to me also to be plain that contextual material of that kind might include, as it is said to do in this case, newspaper cuttings attached to the letter the subject of the plaintiff's complaint. Moreover, it seems to me that an oral explanation or qualification of written material made simultaneously with the reading of that material might also comprise relevant contextual material. There is, I think, no relevant distinction between that situation and one of the kind which occurred in Thornton v Stephen, supra, in which one newspaper article referred to another in the same issue or in Smyth v MacKinnon, supra, in which a letter was required to be read in its context in the whole of the correspondence of which it formed a part. The fact that the contextual material is oral rather than in writing seems to me to be of no significance if, in truth, it qualifies the meaning of the written material at the time at which that material is read.

It consequently seems to me that it is open to a defendant to plead contextual material of that kind.

The only publication relied upon by the plaintiff to found his cause of action against the defendant is, as I have said, one to Mr Baumgartel of the contents of the letter dated 1 July 1997. Had he received it by post and read it, without more, as the plaintiff seems to have assumed, then the plaintiff's cause of action would, at that point, have been complete and any plea that it was re-read on a later occasion together with other information, oral or written, which explained or qualified it would ordinarily be irrelevant to that cause of action, although it might, of course be relevant to the issue of damages. In such a case it would be unnecessary and impermissible to plead, and seek to justify, imputations which might arise from any later publication or re-publication which is not relied upon by the plaintiff.

However, as I understand the defence the defendant's plea is to the effect that the first publication to Mr Baumgartel is that which took place at the first meeting referred to in para 3(d) of the minute. I have mentioned that the defendant pleads that the letter and its attachments were then read by Mr Howard (and I assume from the plea to the effect that it was read "in the company of David Baumgartel" that it was then read by Mr Baumgartel also) together with its attachments and that the defendant, who was then also present, contemporaneously explained and qualified the letter as pleaded in the next sub-paragraph.

It is, I think, open to the defendant to plead in that way. The effect of the plea is that the publication was not as the plaintiff has assumed but rather one in different circumstances and in a wider context than had been assumed, and pleaded, by the plaintiff.

It is also open to the defendant to go on to plead, if he chooses, what are the imputations which, he says, arise from the material complained of when read in its whole context.

A defendant is not obliged to specify what he or she says that the words complained of mean (see Viscount De L'isle v Times Newspapers Ltd [1988] 1 WLR 49 at 60 and Prager v Times Newspapers Ltd [1988] 1 WLR 77 at 86). However, by pleading an alternative meaning a defendant may make plain the ground upon which he or she denies the imputation pleaded by the plaintiff (see Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 154 ALR 294 at 299). Moreover, if the defendant can properly plead that the letter relied upon by the plaintiff was read and must be understood in this wider context then it is open to the defendant (at least if the decision of Gumina v Williams (No 2) (1990) 3 WAR 351 continues to reflect the law as it must be applied in this State) not only to plead such alternative meanings as might arise from that material read in this context but also to go on and plead a defence of justification in respect of those alternative meanings so long as those meanings did not give rise to another and distinct charge than that complained of by the plaintiff. I have, in this respect, been invited to assume that the position in this State remains as enunciated by the Full Court in Gumina notwithstanding the recent criticism of the approach adopted in that case (and others applying the so-called "Polly Peck" principle) by Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd, supra, at 298 ff.

Counsel for the plaintiff contended that to allow a defendant to raise a plea of justification in respect of imputations arising from material which is partly written and partly oral would be to confuse the law with respect to libel with that relating to slander. I am unable to accept that submission. There is, I think, no relevant confusion. We are here concerned only with the plaintiff's cause of action for libel. All that the defence does is to seek to place the allegedly libellous words in a wider context, including oral words, and then to justify the imputations which, it says, arise from the written material when understood in that wider context.

It consequently follows that no sufficient grounds have been shown for disallowing the defendant's plea in respect of the first meeting or for striking out the imputations which, the defendant says, arise from the material when understood in its context. Nor have sufficient grounds been shown for disallowing the defences of justification and qualified privilege pleaded by the defendant (no other basis having been advanced for disallowing any of those pleas than that to which I have referred above).

Moreover, so far as paras 3(f), (g) and (h) of the minute of amended defence are concerned, it seems to me that the defendant is entitled to raise these matters in answer to the plaintiff's plea of republication to members of the Club committee as a matter "going only to damages". If the republication is relevant to damages then, in my opinion, the fact that the republication was qualified in the respects alleged must likewise be material to the issue of damages. The same is true of the plea that the republication was not to all of the members of the Club committee but only to the Club President, Mr Kevin Johnson.

It follows that I am not persuaded that the paragraphs complained of should be disallowed on the grounds advanced. That being so I propose to allow the proposed amendment.