Aga Khan v Times Publishing Company [1924] 1 KB 675

Bristile Ltd v The Buddhist Society of Western Australia Inc & Anor [1999] WASC 259

Cutler v McPhail [1962] 2 QB 292

Jackson & Ors v ACP Publishing Pty Ltd [2001] WASC 121

Lyon v Daily Telegraph Ltd [1943] KB 746

Polly Peck (Holdings) plc v Trelford [1986] QB 1000

Reynolds v Nationwide News Pty Ltd & Ors [2001] WASC 90

Sims v Wran [1984] 1 NSWLR 317

Taylor v Jecks (1993) 10 WAR 309

Wallis & Ors v Wallis [2001] WASC 134

Watt v Herald & Weekly Times Ltd [1998] 3 VR 740

1 McLURE J: There are two applications before me. The defendants apply for leave to file a substituted defence in accordance with a minute dated 7 December 2001 and for further and better particulars of the plaintiff's republication plea in par 9 of the statement of claim.

2 The relevant history of the action is as follows. The plaintiff filed a statement of claim on 16 March 2001. The defendants filed a defence dated 30 March 2001. The plaintiff applied by chambers summons dated 9 May 2001 to strike out specified paragraphs of that defence. After the strike out application was filed and served, the defendants filed and served a proposed amended defence dated 18 May 2001. The proposed amended defence addressed one of the applicant's objections by adding particulars of facts upon which the defence of fair comment was based. The parties proceeded on the basis that the strike out application related to the proposed amended defence. The plaintiff was partially successful. The defendant was given leave to replead: Moir v Flint & Anor [2001] WASC 183. The plaintiff did not, however, persist with any objection to the fair comment plea in the proposed defence the subject of the earlier application.

3 The plaintiff now opposes the grant of leave to amend on the ground that the pleas in pars 4.1, 4.2, 5.2.16, 5.3 and 6 of the proposed substituted defence are defective or deficient because of inadequate particularisation.

4 The words complained of are set out in full in my earlier decision. I do not intend to repeat them here. Paragraphs 4.1 and 4.2 plead Polly Peck imputations in the following terms (excluding particulars):

"4. Further and alternatively, the defendants say that the only imputations that arise from the words referred to are that:

4.1 During the plaintiff's 6PR interview the plaintiff had not told the whole truth about her dealings with the second defendant, the first defendant and Mr Gary Adshead relating to the Sunday Times article.

4.2 The plaintiff had sought to resile from an agreement she had made with the second defendant under which she had unconditionally given permission to the second defendant to publish a story about the plaintiff that included references to the criminal attacks perpetrated on the plaintiff by the Birnies and problems of crime in Northbridge and instead provided a similar story to another media organisation in return for payment."

5 The plaintiff objects to par 4.1 on the grounds that it is not the ultimate distillation of the precise act or condition attributed to the plaintiff and is not defamatory because it does not connote intentional untruth.

6 The relevant legal principles are not in dispute. An imputation must express the precise act or condition asserted of or attributed to the plaintiff or with which the plaintiff is charged: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 675. Further, an imputation should represent the final distillation of the alleged defamatory meaning: Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1 at 15.

7 However, difficulty often arises in the application of the principles for the reasons concisely identified by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. He said (at p 137):

"The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him ..., is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology."

8 The application of the principles can be further complicated when the imputation is pleaded as part of a Polly Peck defence. Often an argument that the imputation does not encapsulate the final distillation of the sting is to urge in effect for the imputation pleaded by the plaintiff. It is not the function of the Court on an interlocutory application to resolve matters of that nature. The defendants should be refused leave only if their pleading is untenable or manifestly groundless. That is not so here. Accordingly, I reject the plaintiff's submission that the imputation does not represent the final distillation of the sting.

9 There is an overlap between the objection that the imputation does not express the precise act or condition and the submission that the imputation is not defamatory. The plaintiff says that the imputation does not assert that her alleged failure to tell the whole truth was deliberate. In my view that is implicit in the assertion that she did not tell the whole truth. The word "truth" in context connotes the requisite knowledge and intention. For these reasons the plaintiff's objection to par 4.2 fails.

10 The plaintiff's grounds of objection to par 4.1 were repeated for par 4.2. I agree with the plaintiff's submission that the imputation in par 4.2 does not express the precise act or condition asserted of or attributed to the plaintiff. Rather it describes events which the defendants contend occurred and leave the reader to speculate as to the precise charge levelled against the plaintiff.

11 Sub-paragraph 16 of par 5.2 is one of 19 sub-paragraphs containing particulars of justification of the plaintiff's pleaded imputation that "the plaintiff is a hypocrite in that whilst purporting to grant interviews for the public interest her principle motive in granting interviews is financial gain".

12 The particulars of justification to this imputation are very lengthy, as is sub-par 16. It is unnecessary to set the particulars out in full. In substance, sub-par 16 is to the effect that the plaintiff did not tell the whole truth about her dealings with the defendants and Mr Adshead during her interview with 6PR. In particular, it is alleged that:

(a) contrary to what the plaintiff said on 6PR she:

(i) she gave permission to Mr Adshead to mention the Birnies;

(ii) she did not speak to the defendants off the record;

(iii) she did not specify to the defendants that the statement she was making to them were not allowed to be published because of the Criminal Code;

(b) she did not say (as was the fact) that the interview was provided freely and voluntarily and that she had granted permission for the second defendant to publish her story about her that included references to the criminal attacks perpetrated on her by the Birnies and the problems of crime in Northbridge.

13 Sub-paragraph 17 of par 5.2 deals with what the plaintiff said during her 6PR interview about the reason she was appearing on Channel Seven and the subject matter of the proposed broadcast which was also said to be inaccurate.

14 The defendant objects to sub-par 16 on the ground that it is irrelevant. I do not accept the plaintiff's submission. Sub-paragraph 16 is part of an interconnected statement of facts and matters. The pleaded material is contextually relevant. Further, it is substantively relevant to the question of her motivation, both financial and presentational.

15 Paragraph 5.3 relates to the particulars of justification to the plaintiff's pleaded imputation that "the plaintiff acted deceptively and dishonestly in her dealings with 'The Sunday Times'." The defendants simply repeat par 5.2. The defendants' objection is that the particulars do not arguably establish dishonesty. At the hearing, the plaintiff also complained of the form of the plea in incorporating by reference the particulars of justification to a separate imputation.

16 The plaintiff's first submission is linked with the objection to par 4.1 that an assertion the plaintiff did not tell the whole truth is not defamatory because it did not connote deliberate conduct. I have rejected that submission and accordingly reject the objection to par 5.3. Further, I see no disadvantage to the plaintiff in permitting a plea in a form which incorporates by reference relevant matters from an earlier plea. Accordingly, this ground of objection also fails.

17 Paragraph 6 of the substituted defence is a plea of fair comment in the following terms:

"6. Alternatively, the words complained of were fair comment upon a matter of public interest.

Public interest

6.2 The plaintiff had been the victim of a notorious crime.

6.3 The plaintiff had contacted Perth radio station 6PR and requested to be interviewed on air by Mr Paul Murray about the publication by the second defendant of an account of that crime.

Particulars of facts upon which comment is based

6.4 The facts referred to in the plaintiff's 6PR interview and the first defendant's radio publication that:

6.4.1 the plaintiff had sold her story to Channel Seven;

6.4.2 the plaintiff did not state in the 6PR interview she had been paid for her story by Channel Seven, Perth;

6.4.3 the plaintiff did not state at the Sunday Times interview she did not want her story published;

6.4.4 the plaintiff stated at the plaintiff's 6PR interview she did not give her consent to the defendants to publish her story;

6.4.5 the plaintiff gave her consent to the defendants to publish her story at the Sunday Times interview;

6.4.6 the plaintiff changed her position after the Sunday Times interview and gave her consent to her story being published at an unspecified date in the future;

6.4.7 Channel Seven broadcasted promotional segments of the plaintiff's story prior to the publication of her story by the second defendant.

Particulars of comment

6.5 The words referred to contained the following comment:

6.5.1 'I'm afraid to say Kate's being a little bit selective with the truth'.

6.5.2 'I think she must be worried that she is not going to get her money from Channel Seven'.

6.5.3 'So, it was with some surprise and we felt a little bit led up the garden path when we discovered on Friday that she had given a full and frank interview with Channel Seven for money'.

6.5.4 'But, it's clear where they're coming from and we felt on Friday that we were having the rug pulled from under us'."

18 As stated earlier, the plaintiff did not at the earlier strike out application pursue any objection to the fair comment plea, which was in substantially the same terms as the proposed substituted defence.

19 It seems the impetus for the current attack was the publication in September 2001 of the reasons of Ashley J in Anderson v Nationwide News Pty Ltd [2001] VSC 335. Based on Anderson's case, the plaintiff submitted that a defence of fair comment is untenable and bad at law unless it pertains specifically to the defamatory meanings pleaded by the plaintiff or a permissible variation thereof. A corollary of that principle was said to be that a defendant is obliged to disclose in the defence the "substance of the comment" relied upon. It was also conceded that such an approach would not relieve a defendant from identifying in its pleading the actual words complained of from which it is said the substance of the comment is derived.

20 Having a launching pad for a very belated attack on a plea which escaped criticism on the last strike out application, the plaintiff takes the opportunity to attack par 6 on other grounds such as the failure to link the facts to the particular pleaded comments. I am not prepared in the exercise of my discretion having regard to case management principles to give the plaintiff the opportunity to address matters which could and should have been aired on earlier occasions. However, I will address so much of the plaintiff's submissions that derive from Anderson's case.

21 The starting point for the analysis is whether the defence of fair comment applies to the imputations arising from the words complained of.

22 The standard and widely accepted statement of principle is that is a defence to an action for defamation for a defendant to prove that the words complained of are fair comment on a matter of public interest: Gatley J C C, "Libel and Slander" 9th ed Sweet & Maxwell, London, 1998 par 12.1, 12.2; Duncan C and Neill B, "Duncan and Neill on Defamation" 2nd ed Butterworths, London, 1978, par 12.01.

23 Although not universally accepted, the test of fair comment is generally regarded as objective. It will be fair comment if a fair-minded person could honestly express the comment (whether opinion or otherwise) on the proved facts: Merivale v Carson (1887) 20 QBD 275 at 280; Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239 at 253.

24 Further, according to the authors of "Duncan and Neill on Defamation" (2nd ed) at par 13.32, the test of fair comment is applied by reference to the meanings in which the words would be understood, citing Lord Esher MR in Merivale v Carson (supra) at 503. There is also support for that view in the judgment of Buckley LJ in Peter Walker & Son Ltd v Hodgson (supra) at 253. Thus, on this approach, the finders of fact have to decide as to the meaning of the words complained of and then apply the objective test of fair comment to that meaning. I regard this as an accurate statement of the law.

25 Notwithstanding the test of fair comment is by reference to the imputations, it is accepted in common law jurisdictions that the pleading of the defence of fair comment is by reference to the words complained of.

26 The submission before the Court in Anderson's case was that by parity of reasoning with the permissible limits of a Polly Peck defence, a defendant should only be permitted to plead fair comment with respect to the plaintiff's pleaded imputations or imputations sufficiently close thereto to authorise a jury verdict for the plaintiff. This submission has to be seen in the light of what might be regarded as the narrowing of the Polly Peck defence in Victoria as a result of the decision of the Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667. The Court in Hore-Lacy held that a defendant can plead a different meaning from that contended for by the plaintiff and then justify it provided the meaning is not substantially different from nor more injurious than those pleaded by the plaintiffs. Ormiston JA said (at p 675):

"It would ... seem desirable, if it was not already required by authority, both that defendants should plead the meanings by way of false innuendo or imputation which they place upon the publication relied upon and that they should plead justification in terms which makes clear the version or versions of meaning of the publication to which that justification is directed. Whatever criticisms the minority [in Chakravarti] levelled at the practice, it seems fortunately restricted to defamation actions and Chakravarti would at least restrict the extent to which imputations and false innuendoes which depart from those pleaded may be relied upon at trial. It would seem, moreover, that even the majority would permit a very limited departure from the case pleaded by the plaintiff; in other words, the jury will have to be told that they cannot find for the plaintiff unless they agree with the meaning or one of the meanings put forward on behalf of the plaintiff, or unless the meaning they would give the publication was only a nuance or variant, not substantially different or more serious from that proposed by the plaintiff.

If that be correct, then a defendant should not need to, nor be permitted to, plead or rely on a meaning other than one which is not more serious and otherwise is not substantially different."

27 The reference to the minority in Chakravarti is a reference to the reasons of Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519. They expressed the opinion, by way of obiter, that Polly Peck is not a good defence to a defamation action. However, that is not the law in this jurisdiction. The Polly Peck defence was approved by the Full Court in Gumina v Williams (No 2) (1990) 3 WAR 351.

28 Further for the reasons which I set out in detail in Vitale & Ors v Bednall & Anor [2001] WASC 278 at pars 30-40, in my view it is arguable that the statement of Ormiston JA in Hore-Lacy concerning the extent to which a plaintiff can depart from pleaded imputations is too narrowly formulated. As I said in Vitale's case, whatever be the correct legal position, on the current state of the authorities it cannot be said that a defendant's Polly Peck plea of a less injurious meaning on the same subject matter and in relation to the same separate and distinct charge as the plaintiff's imputations would satisfy the General Steel test of being manifestly untenable or unarguable: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125.

29 In this case the defendants' Polly Peck plea involves less injurious gradations of meaning on the same subject matter. Indeed, it is not suggested by the plaintiff that the defendants' Polly Peck imputations exceed the permissible limit of a Polly Peck defence. So too with the words complained of which the defendants identify as fair comment. They deal with the same subject matter as the plaintiff's imputations. It is not suggested that what the defendants have identified as fair comment goes outside the realms of the imputations capable of arising from the words complained of. The only question in issue in this case is whether the defendants should be obliged to state the substance of the comment. I accept that there may be occasions when it is appropriate for a defendant to do so, for instance, where it is unclear whether it is capable of satisfying the test of fair comment by reference to the range of permissible meanings: Control Risks Ltd v New English Library Ltd [1989] 3 All ER 577; Sian Lloyd v Express Newspapers PLC [1997] EWCA Civ 1319. That is not the situation in this case. The plaintiff was not previously and is not now disadvantaged by the failure of the defendants to provide particulars of the substance of the comment. For these reasons and having regard to the history of this matter, I do not uphold the plaintiff's objection to par 6.

30 For these reasons, I propose to order that the defendants have leave to amend their defence in accordance with the minute of proposed substituted defence save for par 4.2. I give the defendant liberty to re-plead that paragraph.

31 Paragraph 9 of the statement of claim is in the following terms:

"Further to and by reason of the matters described in paragraph 4 and 7 above, the First and Second Defendants are liable for each and every republication of the content of the First Defendant's Radio Publication in that:

9.1 it was the natural and probable consequence of the publication of the First Defendant's Radio Publication to listener/recipients of the radio broadcast that its contents would be republished by those listener/recipients;

9.2 the First Defendant authorised the listener/recipients of the First Defendant's Radio Publication to so republish that material; alternatively

9.3 the First Defendant intended that the listener/recipients of the First Defendant's Radio Publication would republish that material.

Particulars

(a) the Plaintiff relies upon republications by the listener/recipients of the radio broadcast of the First Defendant's Radio Publication as to damages only, and not separate causes of action."

32 By a request dated 7 December 2001 the defendants requested the plaintiff to identify each alleged republication, each listener/recipient alleged to have republished, the words that were republished, when, where and how the republication occurred and the number of persons to whom it was republished. The defendants also seek further and better particulars of the allegation that Mr Flint gave the authority and had the intention pleaded in pars 9.2 and 9.3 respectively.

33 The Supreme Court Rules require a request for particulars to be made within 30 days of the service of the relevant pleading or such other time as the Court allows: O 20 r 13(6). The defendants' request was made approximately nine months after the statement of claim was served. According to evidence relied on by the defendants, the need for the particulars was first drawn to the attention of their solicitor by counsel in November 2001.

34 I respectfully agree with Owen J's statement of principles in Porteous v Rinehart & Ors, unreported; SCt of WA (Owen J); Library No 980755; 22 December 1998. He said (at p 6):

"The fundamental purpose of particulars is to confine and define the matters in issue so as to prevent surprise and delay at trial. A party is entitled to a sufficiently clear statement of the opponent's case so as to allow it a fair opportunity to meet it. On the other hand, any request for particulars must be viewed against the ideals of positive case flow management. That is not an end in itself. It is a means to achieving justice. Case flow management is more than simply getting a matter to trial in the shortest possible time. It involves an assessment of the interests of justice in its broadest sense."

35 On balance, I have reached the view that it is in the interests of justice to extend the time for the defendants to request the particulars. The pleading of par 9 of the statement of claim is ambiguous. For example, it is left to the reader to infer from the particulars to par 9.3 that the plaintiff is indeed asserting that there were in fact republications of which it complains. There is no pleaded limit on the alleged republication. Fairness to the defendant requires that they be given advance notice of details of the alleged republications. That is so notwithstanding the plaintiff relies on the republication on the issue of damages and not as separate causes of action: Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173; Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission [1998] FCA 1560; (1999) ATPR 41-669.

36 Counsel for the plaintiff informed the Court at the hearing that the plaintiff's intention is to rely on general inferences rather than specific acts of republication. The pleading does not confine the plaintiff in that way. The position can and should be clarified in the plaintiff's answers.

37 Accordingly I propose to order that the plaintiff provide the further and better particulars requested by the defendants in their minute dated 7 December 2001.