Court of Appeal (WA)|2003-11-14|Before: Ms J, McLure JJ, Anderson J, Steytler J

Nationwide News Pty Ltd v Moodie [2003] WASCA 273 (14 November 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NATIONWIDE NEWS PTY LTD -v- MOODIE [2003] WASCA 273

BETWEEN : NATIONWIDE NEWS PTY LTD (ACN 008 438 828)

Defamation - Practice and procedure - Pleadings - Appeal against decision to strike out paragraphs of proposed substituted defence - Availability of Polly Peck defence - Extent to which defendant allowed to plead and justify different meanings

Defamation - Qualified privilege - Whether a report of part of the proceedings is acceptable - Whether report is fair and accurate

Practice and procedure - Application to strike out pleadings - Purpose of time limit provided for by O 20 r 19

Anderson v Nationwide News [2001] VSC 335; (2001) 3 VR 619

Anderson v Nationwide News Pty Ltd (No 2) [2002] VSC 18; (2002) 3 VR 639

Bookbinder v Tebbit [1989] 1 WLR 640

Cock v Hughes [2002] WASC 263

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Jakudo Pty Ltd v South Australian Telecasters Ltd (No 2) [1997] SASC 6370; (1997) 69 SASR 440

Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412

Moir v Flint [2001] WASC 183

Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663

Orion Pet Products Pty Ltd v RSPCA (Vic) [2002] FCA 860; (2002) 120 FCR 191

Ratnam v Cumarasamy [1964] 3 All ER 933

Reynolds v Nationwide News Pty Ltd [2001] WASC 238

Shave v West Australian Newspapers Ltd [2003] WASC 83

Taylor v Jecks (1993) 10 WAR 309

Vickers v Mayne, unreported; FCt SCt of WA; Library No 980391; 17 July 1998

Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1

1 ANDERSON J: I have had the advantage of reading in draft the judgments of Steytler and McLure JJ. I agree that the appellant should have leave to amend its defence in terms of pars 5, 7.1, 7.2, 11, 13.1 and 13.2 of the minute of proposed substituted defence dated 4 September 2002.

2 The case raises for consideration yet again the practice of permitting defendants in defamation cases to put forward by way of a positive defence a plea that the words complained of do not have the meaning contended for by the plaintiff but have a different meaning; and that, in that meaning, they are true in substance and in fact (or that they are fair comment or that they are protected by qualified privilege). This is the Polly Peck defence.

3 The general common law rule of pleading applicable to all causes of action is that the pleadings define the issues and the parties are bound by their pleadings. In defamation cases this has been translated into a requirement of practice (although not a rule of law) that the plaintiff should plead the false innuendos (the meanings which are said to be implied in or to be inferred from the words of the publication in their natural and ordinary meaning) on which the plaintiff relies. The purpose of the practice is to confine the meanings relied on so as to ensure a fair trial: Lewis v Daily Telegraph Ltd [1964] AC 234 at 265, 279 - 280. There is another rule of practice which is to the effect that parties are not necessarily strictly confined to the precise language of the pleadings. In any class of case there is an overriding judicial discretion to be flexible - to relax the degree of accuracy which a pleading is required to possess. The discretion is of course limited by considerations of fairness. In defamation cases this means that the plaintiff is not necessarily confined at trial to the exact imputations pleaded. If some other imputation is seen at trial to be conveyed by the publication, that is, some imputation other than the imputations pleaded in the statement of claim, there is a discretion to base a judgment on it, or to permit a jury to do so.

4 How is this discretion to be exercised? How far may the tribunal depart from the pleaded case in determining whether the plaintiff should have a verdict?

5 These questions were answered in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 by all five Judges. Their opinions were expressed in three separate judgments. All members of the Court agreed that the Judge and jury were free to give the publication a meaning not pleaded by the parties. As to the extent of the permissible departure, the judgments contain different terminology but in my opinion they are to much the same effect.

"If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury - as where the plaintiff seeks to rely on a difference nuance of meaning or, oftentimes, merely a less serious defamation - the different defamatory meaning may be found by the jury."

"As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings."

"In an attempt to reconcile the desirable encouragement of a particularisation of claims, the avoidance of 'trial by ambush' ... and the consideration of the entirety of the publication in question ..., courts will uphold the discretion of the trial judge, including a discretion to confine parties to the imputations pleaded where that is required by considerations of fairness ... However, a more serious allegation will generally be taken to include a less serious one unless the latter is of a substantially different kind ... If the publisher claims surprise, prejudice or other disadvantage, the trial judge may protect it. No complaint can arise where additional imputation is found to represent nothing more than nuance or shades of meaning of those pleaded."

9 At the risk of over-simplification it seems to me that these judgments can safely be reduced to at least this proposition: that a defamation case will not be permitted to go to the jury, or to judgment, on an alternative meaning which is substantially different from or more serious than the false innuendos pleaded in the statement of claim.

10 It seems to me to be quite obvious that this must have ramifications for the Polly Peck defence. As Anthony J H Morris QC points out in his article "Polly Peck Defence: Its Future in Australia" (2000) 74 (11) ALJ 760 at 769:

"There can be no legitimate basis for defendants to complain if Polly Peck defences are restricted to those cases where the alternative imputations asserted by the defendant are within the range of imputations on which the plaintiff might otherwise succeed at trial. A defendant can have no legitimate reason for wishing to litigate the truth of an imputation in respect of which the defendant has not been sued and upon which judgment cannot be given for the plaintiff."

11 Accepting that it is still permissible in Western Australia for defendants to advance a Polly Peck defence I can see no good reason why a defendant should be permitted to advance as a positive ground of defence an alternative imputation not relied on by the plaintiff and on which the plaintiff cannot obtain a verdict and then seek to justify that meaning. Surely as in all classes of case the defendant in a defamation action is required to meet the plaintiff's claim. As Mr Morris observed (ibid) at 763:

"A pleading which takes the form of denying that the defendant committed the conduct alleged by the plaintiff, alleging that the defendant committed quite different conduct, and asserting a lawful defence in respect of the conduct which the defendant claims to have committed, is obviously objectionable."

12 It is objectionable because it does not answer the claim and does no more than give rise to a false issue.

13 Once it is accepted that the tribunal is not at large as to the meanings which it may find, I think it must also be accepted that the defendant is not at large as to the meanings which it may advance in its Polly Peck defence. I would respectfully adopt the statement made by Charles JA in David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667 at [46]:

"The question whether and to what extent a defendant may justify meanings different from those asserted by the plaintiff is ... necessarily bound up with the extent to which a plaintiff may be allowed to depart at trial from specific meanings pleaded in the statement of claim."

"The principal criticisms of the practice sanctioned in Polly Peck, of permitting a defendant to plead and justify a meaning different from that contended for by the plaintiff are that such an approach allows the defendant to raise false issues which can only embarrass the fair trial of the action and will on occasions unfairly prevent a plaintiff from pursuing a claim in defamation, in the manner explained by Brennan CJ and McHugh J in Chakravarti. The setting up of false issues by the defendant in this way may well make admissible a substantial body of evidence that would otherwise be irrelevant and thus greatly lengthen proceedings. But it seems to me that the same criticisms would not hold good if the defendant were limited to justifying a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand.

Nor should a defendant be unfairly prejudiced if the defendant were limited to pleading a meaning which was sufficiently close (in the manner already suggested) to the plaintiff's meanings, so that the plaintiff himself could succeed upon that meaning on the pleadings as they stand. If the defendant is limited to pleading a meaning on which the plaintiff would be permitted to go to the jury, a false issue is not thereby raised. The issues are instead identified and confined, to the benefit of the court and the parties. Of course, if the plaintiff cannot make good a meaning amongst those identified, his action must fail, and the defendant has no need to plead any other meaning."

15 Ormiston JA expressed himself as being in agreement with the above analysis.

16 In this case, the relevant imputations in the statement of claim were, as to the first article:

(c) that the Plaintiff acted as a mafioso in performing his duties as chief of Greater Murray Health Service; and

(d) that the Plaintiff acts as a mafioso in performing his duties as chief executive of the King Edward Memorial and Princess Margaret Hospitals using mafia tactics to enforce his policy"

(g) that the Plaintiff acted as a mafioso in performing his duties as chief executive of the King Edward and Princess Margaret Hospitals;

(h) that the Plaintiff is a dishonest, ruthless mafioso style executive."

18 The different innuendos advanced on behalf of the defendant in respect to both articles were:

"7.1 The plaintiff in performing his duties as Chief Executive Officer of the Greater Murray Health Service and the Hospitals was dictatorial and secretive in his management style.

...

7.2 The plaintiff in performing his duties as Chief Executive Officer of the Hospitals was dictatorial and secretive in his management style."

19 It is these innuendos which the defendant seeks to justify.

20 For the reasons given by Steytler J I am of the opinion that these alternative meanings are less injurious and not substantially different from those pleaded in the statement of claim. They are meanings upon which the plaintiff (respondent) could succeed at trial on the statement of claim as it stands. That being so the defendant (appellant) should be allowed to advance them as alternative imputations and to seek to justify them.

21 I have nothing to add to what Steytler J has said in respect to the other grounds of appeal.

22 STEYTLER J: The appellant, which publishes The Sunday Times newspaper, is the defendant in defamation proceedings brought by the respondent, a hospital administrator. It seeks to challenge orders made by the primary Judge whereby his Honour struck out a number of paragraphs of a document, bearing the scars of many amendments, which has come to be known as the "further minute of proposed substituted defence". For ease of reference I shall refer to it simply as "the defence".

23 The defamation is said to arise out of the publication of two articles in The Sunday Times on 8 October 2000.

24 The first of these is headed "Chief a 'toecutter'" and bears a photograph of the respondent in what might be described as a rather mournful pose. The article concerns his standing down as chief executive of the Princess Margaret and King Edward Memorial Hospitals in Perth. It commences with an assertion that he "was accused of running a mafia-style operation before resigning from his last job in NSW", before reporting that similar complaints from "WA health professionals" forced the Premier's intervention 10 days previously and resulted in the respondent being stood down. His management style is said to have been "roundly criticised as secretive and abrasive". Ill-feeling towards him in New South Wales was said to have been so high that, before he left that State, he organised personal protection for his children. The article refers to a Parliamentary inquiry held, in New South Wales, into rural health some two years previously and reports that Dr Brian Pezutti, a New South Wales MP, is there said to have "likened" the respondent's "control of the Greater Murray Health Service to the Mafia stranglehold over southern Italy". Under

the respondent's photograph there is a collage of newspaper headlines, one of which reads "GMHS liken[ed] to Mafia".

25 The second article, which appears some pages later in the newspaper, is headed "Moodie blues in a sick situation", the readers' attention having been drawn to it by a note at the foot of the first article. That article, which is less than flattering of the respondent, records, some two-thirds of the way through it, that there is "little sadness" for his plight. Senior medical staff are said to have claimed that he monitored their mobile phone records and e-mail correspondence regularly to check on their loyalty and doctors are said to have spoken of "personal roster checks and verbal intimidation". There is then a comment that these are not "surprising traits" if the appellant's "last job" as Chief Executive Officer of the Greater Murray Area Health Service in New South Wales is considered. This comment is followed by the following paragraphs:

"A parliamentary inquiry there into health service delivery was told that Michael Moodie's operation of the GMHS was similar to the mafia's stranglehold in southern Italy.

Medical professionals spoke of a 'wall of silence', a lack of public consultation, morale in hospitals at an all-time low, communication problems and severe budget cut-backs.

His resignation from that post to come to Perth was described in the local press as a shock, but there can be no surprise about how things have turned out here in WA.

The Metropolitan Health Services Board was well aware of Michael Moodie's management style and track record, both in NSW and Queensland.

It is now up to it to explain publicly exactly what brief it wanted him to carry out and how it is now going to clean up the mess.

The bean-counting, head-kicking approach to public health has not worked and never will. Time is running out for those in high places to acknowledge it."

26 In par 4 of his statement of claim the respondent contends that the first article, in its natural and ordinary meaning, conveyed four defamatory imputations. Two of these, pars 4(c) and (d), read as follows:

"(c) that the Plaintiff acted as a mafioso in performing his duties as chief of Greater Murray Health Services; and

(d) that the Plaintiff acts as a mafioso in performing his duties as chief executive of the King Edward Memorial and Princess Margaret Hospitals using mafia tactics to enforce his policy."

27 In par 6 of the statement of claim the respondent alleges that the second article, in its natural and ordinary meaning, conveyed some eight defamatory imputations. The last two of these, pars 6(g) and (h), read as follows:

"(g) that the Plaintiff acted as a mafioso in performing his duties as chief executive of the King Edward and Princess Margaret Hospitals;

(h) that the Plaintiff is a dishonest, ruthless mafioso style executive."

28 The appellant, in its defence, has raised the defence of qualified privilege. It does so in each of pars 5 and 11. In par 5 it pleads that if, which is denied, the first article was defamatory of the respondent, the appellant says that it "consisted of a fair and accurate report of parliamentary proceedings and accordingly, was published on an occasion of qualified privilege". A similar plea is made in par 11 in respect of the second article. In each case the particulars disclose that the defence is directed towards the reporting of the comment, referred to above, said to have been made in the course of the Parliamentary inquiry held in New South Wales into rural health.

29 Pleas of justification are made in par 7 (relating to the first article) and par 13 (relating to the second article). In each case so-called "Polly Peck" defences have been raised.

30 Paragraphs 7.1 and 7.2 read as follows (omitting the particulars which have been supplied):

"7. Further, and in the alternative, if, which is not admitted, the first matter complained of bore any meaning defamatory of the plaintiff, it meant and was understood to bear the meanings set out below and they were true in substance and in fact:

7.1 The plaintiff in performing his duties as Chief Executive Officer of the Greater Murray Health Service and the Hospitals was dictatorial and secretive in his management style.

...

7.2 The plaintiff in performing his duties as Chief Executive Officer of the Hospitals was dictatorial and secretive in his management style.

..."

31 Precisely similar pleas are made in respect of the second article in pars 13.1 and 13.2.

32 The primary Judge was invited to, and did, strike out each of pars 5, 7.1, 7.2, 11, 13.1 and 13.2 of the defence. As to pars 5 and 11, his Honour mentioned that the appellant had contended that it was too late for the respondent to raise any objection to them as these had not been the subject of any prior controversy in the various exchanges concerning the pleading. However, he was "not satisfied that the matter should be viewed in that light" and said that this was the first occasion on which objections to the defence had come before the Court.

33 As to the merit of the submission in respect of these two paragraphs, his Honour said (at [43]):

"... I am not satisfied that it is open to the defendant to rely upon a passing and obviously incomplete reference to the contents of an inquiry in New South Wales as a basis for raising a plea of qualified privilege in regard to articles which are concerned with a different set of circumstances in another State. The references in the articles to what are [sic] said in New South Wales strikes me as in the nature of gratuitous asides which, in the context of the articles before me, were not intended to report on or to illuminate matters under discussion in that State but, rather, were being used selectively for an entirely different purpose, namely, to underpin criticisms of the plaintiff's management style in this State. There was no real basis for the public to make a comparison between the two sets of circumstances."

34 His Honour went on to accept, for the purposes of the "notional" striking-out application before him (it was in truth an application for leave to amend), that evidence could be adduced to underpin particulars which had been supplied in support of the pleas. He went on to say (at [44]):

"Hence, I accept that a reference was made in the course of the Standing Committee [of] Inquiry in New South Wales to the plaintiff running the Greater Murray Health Service a bit like the mafia is reputed to be running Southern Italy. However, I am not persuaded that this isolated reference can be said to constitute a fair and accurate report or that the proposed qualified privilege plea can be sustained in regard to the articles complained of."

35 As to pars 7.1, 7.2, 13.1 and 13.2 of the defence, the primary Judge, after reviewing some of the authorities, came to the conclusion (in [28]):

"... that the Polly Peck defence in the present case must be confined to imputations and meanings similar to the imputations contended for by the plaintiff, bearing in mind, that the plaintiff is entitled to single out and complain only of certain passages or aspects of the publication in question, provided that he does not thereby deprive the defendant of reliance upon the common sting in the allegation."

36 His Honour found ([29] and [33]) that the imputations pleaded by the respondent in pars 4(c) and (d) and 6(g) and (h) were essentially confined to imputations concerning criminal conduct and impropriety. He said (at [29]), in this respect, that:

"An assertion that a person is acting in the manner of the mafia would surely convey to an ordinary reader that the person is acting in breach of the law or, at least, conforms to the practices of a group that stands outside or ignores the law. To my mind, this is significantly different from an assertion that a person is acting in an overbearing or secretive manner. In the present case, the tenor of the words complained of are far stronger than the meanings sought to be relied upon by the defendant."

37 His Honour consequently concluded that the paragraphs to which I have referred disclosed no reasonable defence or might prejudice, embarrass or delay the fair trial of the action, if those amendments should be allowed.

38 There are five grounds of appeal. Grounds 1 and 2 address the "Polly Peck" defences and grounds 3, 4 and 5 address the qualified privilege defences. By grounds 1 and 2 the appellant contends that the primary Judge erred in law in holding that the Polly Peck defences should be disallowed. In grounds 3 and 4 the appellant takes issue with the trial Judge's exercise of discretion in permitting the respondent to challenge the qualified privilege defences in pars 5 and 11, notwithstanding his delay in challenging them. Ground 5 attacks the principal Judge's finding that the defences of qualified privilege were not arguable.

39 As Brooke LJ pointed out in Cruise v Express Newspapers PLC [1998] EWCA Civ 1269; [1999] QB 931 at 947 - 948, prior to the decisions of the Court of Appeal in Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 and Polly Peck (Holdings) plc v Trelford [1986] QB 1000 there remained two continuing uncertainties as regards pleading practice in the law of defamation. The first was the question whether defendants were required to plead the meanings on which they relied for their pleas of justification and fair comment, if they differed from those relied on by the plaintiff. The second was whether, if a publication contained two or more separate and distinct stings and the plaintiff only complained of one of them, the defendant could rely on the other or others and plead justification and/or fair comment.

40 The first uncertainty was resolved, in England, in Lucas-Box where the Court required a defendant who pleaded justification to plead the meaning which he sought to justify, if it differed from that pleaded by the plaintiff. The second was resolved in Polly Peck, where the Court held that, where a publication contains two or more separate and distinct defamatory statements, a plaintiff is entitled to select one of them for complaint and the defendant is not entitled to assert the truth of the other or others by way of justification.

41 Each of those cases has been approved in this State, most notably in the case of Gumina v Williams (No 2) (1990) 3 WAR 351 at 354 - 355, per Malcolm CJ, and, in effect, at 361, 364 - 367, per Seaman J, with whom Pidgeon J was in agreement. Malcolm CJ said, at 354, that the weight of authority justified acceptance of the proposition that, where justification is pleaded, a defendant is required to plead the meaning of the words which, if it is the true meaning, he will seek to justify. His Honour also said (ibid) that, where the words complained of made a distinct charge against a plaintiff, a defendant is not entitled to say that they make another and distinct charge and seek to justify that. His Honour went on, at page 355, to say:

"I agree with Seaman J that the adoption of the rule does not alter the position that the trial judge must decide what meanings are fairly open from the words complained of and leave to the jury only such meanings as are fairly open. Neither the judge nor the jury are confined to the meanings alleged by the parties. As a practical matter, however, the judge may not regard it as necessary to put to the jury any meaning not pleaded by either party, although he is entitled to do so: National Mutual Life Association of Australasia Ltd v General Television Corporation Pty Ltd [1989] VicRp 66; [1989] VR 747 at 768."

42 Seaman J, at 367, expressed the opinion that in all but those cases in which the defamatory materials are so explicit that a party has no need to plead any imputation:

"... the rule of practice should be that the plaintiff should set out in his statement of claim the meanings which he contends arise from the words complained of in their natural and ordinary meaning, and a defendant who justifies should set out at the start of his plea of justification the meanings which he contends arise from them which he seeks to justify."

43 This was the position in Western Australia until the decision of the High Court in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519. To what extent it is still so depends upon how the reasoning of the various Judges in that case is to be understood.

44 There, Brennan CJ and McHugh J criticised Polly Peck, saying (at 528) that "the Polly Peck defence or practice contravenes the fundamental principles of common law pleadings" and that, in general, "it raises a false issue which can only embarrass the fair trial of the actions". They expressed the opinion (ibid) that a plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence and that it is "immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication".

45 Their Honours considered the apparently conflicting views of Diplock LJ and Salmon LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157. At page 532 they mentioned that Salmon LJ had said that a plaintiff is bound by his or her pleading because "otherwise it may prove to be nothing but a snare for the defendant", but that Diplock LJ had said that a plaintiff could rely on any meaning which was less injurious than the pleaded meaning. They went on to say (at 533):

"The proposition advanced by Salmon LJ in Slim is too rigorous: it appears to sacrifice form to substance and to elevate minute differences from the meaning pleaded to the status of a substantial defence. On the other hand, a less injurious meaning than the meaning pleaded is not always without significance as Diplock LJ seems to imply. A defendant who could not justify or otherwise defend a publication having the meaning pleaded by the plaintiff might have been able to justify or otherwise defend a defamatory publication having a less injurious meaning. But a different nuance of meaning from the meaning pleaded may go to, and be found by, the jury provided it is not unfair to the defendant to allow the plaintiff so to depart from the meaning pleaded."

46 Their Honours also referred, with apparent approval, to what had been said by King CJ, with whom Millhouse and Prior JJ agreed, in Prichard v Krantz (1984) 37 SASR 379 at 386 as follows:

"A plaintiff would not, of course, be confined to a precise nuance and shade of meaning pleaded or particularised. Modern judges, in any class of case, have a considerable discretion as to the rigour with which they will confine a case presented by a party to the precise language of the pleadings. In many cases, moreover, the more serious allegation can be regarded as including the less serious. In that sense, the court is free to attribute to the words a less injurious meaning than that attributed to them in the pleading ... It seems to me, however, that it would be contrary to the purpose of pleadings and particulars if a plaintiff could obtain a judgment upon the basis of a meaning of the words used which was not merely a less serious form of the imputation pleaded, but amounted to an imputation of a substantially different kind."

47 In the penultimate paragraph of their judgment, on page 534, their Honours said:

"If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure - whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict - the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury - as where the plaintiff seeks to rely on a different nuance of meaning or, oftentimes, merely a less serious defamation - the different defamatory meaning may be found by the jury."

48 In their judgment, Gaudron and Gummow JJ referred (at 542 - 543) to the preceding practice in the following way:

"Although there is no requirement in that regard, it is now common practice for a plaintiff to specify in his or her statement of claim the meaning or meanings which, as a matter of ordinary language, are said to be conveyed by the material upon which he or she sues ... . Whilst the pleading of different shades of meaning is not to be encouraged, distinct or specific meanings should be pleaded and one indication of distinctness or specificity 'would be whether the justification would be substantially different' ... . And since the decision in Lucas-Box v News Group Newspapers Ltd ..., a defendant who seeks to justify a different meaning has generally been required to plead or give particulars of that other meaning ... ."

49 Their Honours went on to consider a number of the cases before saying, at 544 - 545:

"In the authorities concerned above, there has been a tendency to translate into rules what are best seen as considerations going to fair and efficient practice. More cogently, it has been said that, if a defendant seeks to justify a meaning which is different from that asserted by the plaintiff, it should plead that alternative meaning because '[l]ibel law ought not to be an exception to the modern rules of pleading which are directed to precisely defining the issues between the parties, providing the benchmarks against which the relevance of evidence is to be assessed and deciding those issues on their merits' ... . The alternative meaning pleaded by the defendant may make plain the ground upon which the defendant denies the imputation pleaded by the plaintiff. But the view quoted may be accepted without supporting a general conclusion that, in a defamation action, the parties always should be held to the meanings they have pleaded."

"As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning or, even, a meaning which focuses on some different factual basis. Particularly is that so if the defendant has pleaded justification or, as in this case, justification of an alternative meaning. However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings."

51 The fifth member of the Court, Kirby J, said, at 580 - 581:

"In an attempt to reconcile the desirable encouragement of particularisation of claims, the avoidance of 'trial by ambush' ... and the consideration of the entirety of the publication in question ..., courts will uphold the discretion of the trial judge, including a discretion to confine parties to the imputations pleaded where that is required by considerations of fairness ... . However, a more serious allegation will generally be taken to include a less serious one unless the latter is of a substantially different kind ... . It is true that dicta appear in decisions of this Court ... other Australian courts ... and courts overseas ... which favour a strict approach: binding a plaintiff at the trial to the precise imputation pleaded. However, I do not consider that these dicta represent the law. The better view is that the rules of pleading must, in those jurisdictions governed by the common law, adapt to the fair evaluation by the tribunal of fact of the matter complained of. If the publisher claims surprise, prejudice or other disadvantage, the trial judge may protect it. No complaint can arise where additional imputations found represent nothing more than nuances or shades of meaning of those pleaded."

52 Chakravarti was considered by the Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667. There, Ormiston JA, after reviewing what had been said in Chakravarti in the light of some of the authorities which had preceded that case said (at 675):

"It would therefore 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 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."

53 Charles JA, in that case, after saying (at 688) that a plaintiff would, if there were no unfairness to the defendant, be allowed to rely upon a meaning not substantially different from, nor more injurious than, the meanings pleaded by him, went on to say (ibid):

But so also the raising by the defendant of such a meaning for the first time at trial, for the purposes of justification, may be unfair to the plaintiff, who might also claim 'surprise, prejudice or other disadvantage' (Kirby J in Chakravarti ...) or that he might have adduced different evidence, or might have conducted the case on a different basis (Brennan CJ and McHugh J). ... In this respect it seems to me that if the defendant by its pleading indicates an intention to justify a meaning different from those relied on by the plaintiff, the defendant should be required to state what that meaning is, with the necessary particulars of the facts on which the justification is based."

54 The third Judge, Callaway JA, expressed the opinion (at 690), in the course of his dissenting judgment, that the plaintiff should not be allowed to raise a meaning "more injurious" than, or "substantially different" from, those pleaded.

55 A rather different approach has been taken in Queensland. In Robinson v Laws [2003] 1 Qd R 81 the Court of Appeal held that it was not open to a defendant to a defamation proceeding in Queensland to plead a "Polly Peck" defence. The decision of the Court appears to have relied substantially on the provisions of s 4 and s 7 of the Defamation Act 1889 (Qld) and of the Uniform Civil Procedure Rules 1999 (Qld), although de Jersey CJ, in particular, was generally critical of this kind of pleading, saying (at 95) that the "conduct of civil litigation cannot be allowed to elasticise to the point where it resembles the workings of a roving commission of inquiry".

56 In Whelan v John Fairfax Publications Pty Ltd [2002] NSWSC 1028; (2002) 56 NSWLR 89 at 100, Levine J of the Supreme Court of New South Wales has said that he proposed to conform with what he perceived to be "the more generally held view that a defendant in an appropriate State or Territory is entitled to plead a Polly Peck defence".

57 The view of the majority in Hore-Lacy, and particularly that of Ormiston JA, has been adopted and applied in this jurisdiction in Reynolds v Nationwide News Pty Ltd [2001] WASC 90 at [41] and [42], Jackson & Ors v ACP Publishing Pty Ltd [2001] WASC 121 at [31] and [32] to [34] and Wallis & Ors v Wallis [2001] WASC 134 at [13] to [17]. However, in Vitale & Ors v Bednall & Anor [2001] WASC 278 and again in Moir v Flint & Anor [2002] WASC 48, McLure J has said that it is arguable that the statement in the extract from the reasons of Ormiston JA in Hore-Lacy, concerning the majority view in Chakravarti as to the extent to which a plaintiff can depart from pleaded imputations, is too narrowly formulated (see, respectively, [41] and [28]).

58 Having once again considered what was said in Chakravarti, it seems to me that what can be drawn from that case, relevantly, is that Brennan CJ and McHugh J would not allow the defendant to plead a defence of justification in respect of an imputation not pleaded by the plaintiff, but that the other members of the Court said nothing which was critical of the pre-existing practice (Gaudron and Gummow JJ having been content to assume that it is still available and Kirby J not having considered the point) and that all members of the Court would restrict the extent to which a plaintiff is able to rely, at the trial, upon imputations other than those pleaded by him or her, albeit they differed in this last respect. As will already be apparent, Brennan CJ and McHugh J would permit a different nuance of meaning from the meaning pleaded by the plaintiff, or one which is less serious, to go to the jury, provided that this is not unfair to the defendant. Gaudron and Gummow JJ appeared to use as their touchstone the notion of "disadvantage" to the defendant. It will already be apparent that they considered that, as a general rule, there would be no disadvantage in allowing a plaintiff to rely upon meanings comprehended in, or less injurious than, those pleaded by him or her or meanings which are "simply a variant" of the meaning pleaded, but that there may be disadvantage if a plaintiff is allowed to rely on meanings which are substantially different or which focus on some different factual basis. Kirby J, like Brennan CJ and McHugh J, adopted the criterion of "fairness", and this, his Honour said, would generally permit imputations to go to the jury which are less serious than, but not substantially different from, those pleaded or which are merely nuances or shades of meaning of those pleaded.

59 There being no clear majority in Chakravarti against the continuance of the pre-existing practice, in this State, of pleading so-called "Polly Peck" defences, that practice should be permitted to continue, in my opinion, at least until there has been further guidance from the High Court. However, the extent to which a defendant will be permitted to plead defamatory meanings different from those pleaded by the plaintiff will be constrained by the extent to which the plaintiff might himself or herself be permitted to rely, at the trial, upon imputations other than those pleaded by him or her.

60 No purpose can be achieved by allowing a defendant to plead, and seek to justify, a meaning different from that or those which might be found by a jury in favour of the plaintiff. If the plaintiff cannot succeed on a particular imputation which is different to that pleaded by him or her, then, to allow a defendant to plead that imputation, and seek to justify it, can only result in the creation of a false issue and prejudice to the proper trial process. On the other hand, if the defendant is able to justify a defamatory meaning which differs from that pleaded by the plaintiff but which might be found by a jury on the strength of the plaintiff's own pleading, then there is a basis for saying that the defendant can, and should, plead that alternative meaning and also the matters upon which it relies in contending that it is able to justify it. In this way the issues might be defined more precisely and there would be clear benchmarks against which the relevance of evidence might be assessed. I should add, as regards the concept of "fairness" or "disadvantage", that it can never be fair or advantageous to a plaintiff, or to the trial process itself, to permit a defendant to plead, and seek to justify, a meaning which could plainly not be found by a jury on the plaintiff's pleading.

61 An approach of this kind would, if I may adopt the language of Ormiston JA in Hore-Lacy (at [24]), "reduce the potential injustices to a minimum by providing both parties with an efficient but not excessive degree of flexibility".

62 Where does this leave the parties in this case? The imputations pleaded by the respondent are very broad. As will be apparent, they are to the effect that the respondent had acted "as a mafioso" in performing his duties (pars 4(c) and (d) and 6(g) of the statement of claim), that he had used "mafia tactics" to enforce his policy (par 4(d)) and that he was a "dishonest, ruthless mafioso style executive" (par 6(h)). I would have thought that those imputations are so broad as to fail to distil the sting of the defamation complained of. What does it mean to act "as a mafioso" in performing duties, or to use "mafia tactics" in enforcing policy or to be a "mafioso style" executive? Ordinary people hearing or reading those words might very well understand them in different ways. While counsel for the respondent contended that those words mean only that the respondent acted in breach of the law or in a lawless fashion or was guilty of "serious impropriety", none of that has been pleaded and the notion of "serious impropriety" is itself very broad. However, the appellant has chosen not to challenge the efficacy of the respondent's pleading and, having made that choice, it was obliged to consider to what extent it could justify the pleaded meanings, so far as it understood them, or meanings different from those pleaded by the respondent but which might, on the respondent's pleading, be found by a jury in favour of the respondent and, if it could justify any such meaning or meanings, to plead accordingly.

63 Counsel for the appellant contends that this is precisely what the appellant has done and that the imputations pleaded by it are imputations which might be found by a jury on the respondent's own pleading. As will be apparent, the primary Judge came to a different conclusion. That was, at least in part, because his Honour considered (at [29]) that the imputations pleaded in paragraphs 4(c) and (d) are essentially confined to criminal conduct and impropriety. I have said that his Honour found that an assertion that a person is acting in the manner of the Mafia would surely convey to an ordinary reader that that person is acting in breach of the law or, at least, conforms to the practices of a group that stands outside or ignores the law. With due respect to his Honour, I cannot agree. The respondent did not suggest that the publication imputed that he is a member of the Mafia, but, as I have said, only that he "acted as a mafioso in performing his duties as chief of Greater Murray Health Service", "acts as a mafioso in performing his duties as chief executive of the King Edward Memorial and Princess Margaret Hospitals", using "mafia tactics" to enforce his policy and that he was a "dishonest, ruthless mafioso style executive". It is quite plain, from the two articles, and indeed from the pleaded imputations themselves, that the references to "mafioso" and "mafia tactics" refer exclusively to the respondent's management style. In those circumstances, and given that ordinary people might understand the pleaded imputations in different ways, it seems to me that it is open to the appellant to plead, and to seek to justify, imputations to the effect that the respondent, in performing his duties, was dictatorial and secretive in his management style.

64 Those meanings are, in my opinion, comprehended within the meanings pleaded by the plaintiff, particularly given the context in which the references to mafia style conduct are made in the two articles. The first of the two articles records, as I have said, that the respondent's management style has been criticised as "secretive and abrasive". It also records that the respondent ran the Greater Murray Health Service "from behind a wall of silence". I have said that both articles mention that the respondent's operation or control of that service had been likened to the Mafia "stranglehold" over Southern Italy. The meanings pleaded by the appellant are also less injurious than those pleaded by the respondent (which, being much broader, are capable of being understood in a more injurious way - for example, they might reasonably be thought to comprehend intimidatory behaviour and ruthlessness, as well as secretive and dictatorial behaviour) and the meanings pleaded by the appellant cannot be said to be substantially different from those pleaded by the respondent or to focus on some different factual basis. It consequently seems to me that the meanings pleaded by the appellant are meanings which might be found by a jury in favour of the respondent on the strength of the respondent's own pleadings and that there is no unfairness or disadvantage to the respondent, or to the trial process, in allowing the appellant to plead them and to seek to justify them. I should add that the situation might well have been different had the respondent chosen to plead its imputations with more precision, at least if the pleaded imputations were to the effect contended for in oral argument, being imputations, only, of unlawful or criminal conduct.

65 I would consequently uphold ground 2 of the grounds of appeal and give to the appellant leave to amend its defence in the terms of pars 7.1, 7.2, 13.1 and 13.2 of the defence.

Fair and accurate report - Is the respondent too late?

66 That brings me to grounds 3 and 4 of the grounds of appeal, by which the appellant contends that the primary Judge erred in the exercise of his discretion in permitting the respondent to challenge the defence of qualified privilege pleaded in pars 5 and 11 of the defence in circumstances in which the respondent had not previously objected to these aspects of the pleading. I have said that the primary Judge rejected this argument upon the basis that it was "the first occasion on which objections to the ... defence" had come before the Court.

67 The statement of claim in these proceedings was filed on 8 November 2001. The defence followed some 21 days later. Paragraph 5 of that defence was substantially the same as it now is. On 31 January 2002 there was a case management hearing and orders were there made to the effect that the appellant should have leave to file and serve an amended defence by 7 February 2002, without prejudice to the respondent's right to apply to strike it out. An amended defence was filed on 7 February 2002, again containing par 5. Fourteen days later, the respondent issued a chamber summons to strike out various of the paragraphs of the then amended defence, including par 5. However, on 28 March 2002 the respondent's solicitors informed the appellant that they were not proceeding with any objection to par 5. On 13 May 2002 the special appointment to hear the strike-out application was adjourned by consent and the appellant was given leave to file and serve a minute of proposed substituted defence by 17 May 2002. Once again the respondent reserved the right to apply to strike out the substituted defence. The minute of proposed substituted defence was filed on 17 May 2002, again containing par 5, although on this occasion the appellant also pleaded the defence of fair and accurate report in relation to the second article (par 11). No complaint was made about that defence at that time. Counsel for the appellant contended that it was not until the receipt of an electronic message from the respondent's solicitors on 18 September 2002 (by which time the current minute had been filed) that the appellant was made aware that the two paragraphs would be objected to. The respondent filed an amended chamber summons on 4 October 2002 seeking to strike out, inter alia, these two paragraphs.

68 The appellant contends that the trial Judge erred in entertaining the application, insofar as it affected pars 5 and 11, because it was brought in contravention of the 21-day time limit imposed pursuant to O 20 r 19(3) of the Rules of the Supreme Court. The respondent, on the other hand, argues that the application before the primary Judge was not the chamber summons to strike out the appellant's defence, but, rather, the appellant's application for leave to amend its defence. Hence, it submits, O 20 r 19(3) does not apply, although counsel for the respondent also submitted that, if it did apply, there was no error in the primary Judge's exercise of discretion in circumstances in which the pleadings are not yet closed and in which, if the application should not be permitted, a false issue might be left with the jury.

69 Applications to strike out pleadings should be brought promptly. I have previously said, in Gardiner v Ray [1999] WASC 140 at [33] and again in Roberman v Australian Broadcasting Corporation [2002] WASC 301 at [56], that parties who wish to bring a strike-out application should consider, within the 21-day period allowed by the Rules, what benefit will be derived by bringing the application and then weigh against that the inevitable consequences of delay and expense and that, if, having considered those questions, the applicant concludes that the application is justified, the application should be brought promptly so that it can be disposed of and the action continued without further interruption. Failure to act promptly will often result in the application being dismissed.

70 In this case the application to strike out par 5 of the statement of claim does appear to have been brought promptly, pursuant to leave given or reserved at the case management conference held on 31 January 2002, albeit the respondent seems to have undergone two changes of mind since then. While the primary Judge gave no extensive reasons on this issue, it seems plain that, in the exercise of his discretion, his Honour considered that the history of the matter was such that he should consider it open to the respondent to bring his application in this respect, given that this was the first substantive hearing of an application to strike out the defence and given the other circumstances to which I have referred. I am not persuaded that anything has been said which should result in our interfering with that exercise of discretion.

Fair and accurate report - the substantive issue

71 That leaves ground 5 of the grounds of appeal, which challenges the finding of the primary Judge as regards the merit of what is pleaded in pars 5 and 11 of the defence.

72 The common law confers a qualified privilege upon those who publish fair and accurate reports of certain types of proceedings where it is considered that the public's right to know is more important than the individual's right to maintain his or her reputation. Furthermore, s 354 of the Criminal Code (WA) provides that it is lawful to publish in good faith, for the information of the public, a fair report of any inquiry held under the authority of a statute or ordinance of the Commonwealth or a State.

73 In order to establish the defence at common law, the appellant must prove that the proceedings reported were of the requisite type and that the publication complained of forms part of a fair and accurate report of those proceedings. It was not in dispute that the proceedings of a Parliamentary inquiry are proceedings of the requisite type, with the consequence that the primary Judge was concerned only with the question whether what was written amounted to a fair and accurate report of those proceedings.

74 I have earlier said that, in the course of his judgment on this aspect, the primary Judge said that he was not satisfied that it was open to the appellant to rely upon what his Honour described as a passing and obviously incomplete reference to the contents of the inquiry in New South Wales in circumstances in which the two articles were concerned with a different set of circumstances in another State. I have also mentioned that he said that the references in the articles to what was said in New South Wales struck him as being in the nature of "gratuitous asides" which were not intended to report on or to illuminate matters under discussion in New South Wales, but were instead used for the different purpose of underpinning criticisms of the respondent's management style in Western Australia.

75 While there are some older cases which support the proposition that the publication, outside Parliament, of a single speech made in Parliament for the purpose or with the effect of injuring an individual is unlawful (see R v Lord Abingdon (1793) 1 Esp 226; 170 ER 337; R v Creevey [1813] EngR 254; (1813) 1 M & S 273 and Wason v Walter (1868) LR 4 QB 73 at 94 - 95; although it has also been held that such a publication might be privileged if bona fide published by a member for the information of his constituents: Wason, (ibid), and Davison v Duncan [1857] EngR 160; (1857) 7 E & B 229 at 233) it is now well accepted that there is no requirement for the whole of any relevant proceedings to be reported and an abridged or condensed report, or even a report of only part of the proceedings, may be privileged (see MacDougall v Knight (1890) 25 QBD 1 at 7; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 65; Thom v Associated Newspapers (1964) 64 SR (NSW) 376; and Chakravarti, above, at 526, 540). The real question is whether the report is fair and accurate.

76 Thus, in MacDougall, at 7, Lord Esher MR said (in the context of a report of judicial proceedings):

"I take the law to be deduced from the holding of the Court in Lewis v Levy ..., with regard to the publication of legal proceedings in a Court of law, to be that the publication without malice of an accurate report of what has been said or done in a judicial proceeding in a court of justice is a privileged publication, although what was said or done would, but for the privilege, be libellous against an individual and actionable at his suit, and that this is true although what is published purports to be, and is, a report not of the whole judicial proceeding, but only of a separate part of it, if the report of that part is an accurate report thereof and published without malice."

77 (See also Thom, at 380; Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313 at 318; Bainton v John Fairfax & Sons Ltd (1991) A Tort Rep 81-143 at 69,373 and Tsikata v Newspaper Publishing plc [1996] EWCA Civ 618; [1997] 1 All ER 655 at 669 - 670).

78 To similar effect is the statement of Lord Denning MR in Cook v Alexander [1974] QB 279 at 288, to the effect that a reporter may select a part of a debate which appears to him or her to be of special interest to the public and then describe it, although Lord Buckley (who agreed with Lord Denning MR) added, at 290, that the report must not be "so tendentious or otherwise so slanted as to make it a distorted report of that part of the proceedings to which it relates".

79 In this case, of course, the newspaper articles refer only to one very small aspect of what was said in the course of the Parliamentary inquiry held in New South Wales, namely one comment, by one person, to the effect that the respondent's control of the Greater Murray Health Service might be likened to the Mafia stranglehold of southern Italy. That can hardly be described as an abridged or condensed report of the proceedings, but it might be a report of part of the proceedings. If a report of only one part of relevant proceedings may attract the privilege (and the cases to which I have referred establish that it may) then, it seems to me, it does not matter for this purpose how small a part of the proceedings is reported so long, of course, as the report is fair and accurate (and, perhaps, so long as the report remains a "report" in the sense described by Kirby J in Chakravarti at [53]). A one-sided report, or one with material omissions such as to give a misleading impression of what was said, will not constitute a fair and accurate report: McGrath v Wellington Publishing Co Ltd [1932] GLR 181 at 182; Bunker v James & Downland Publications Ltd (1980) 26 SASR 286 and Chakravarti at 587. So, for example, if a comment, critical of the plaintiff, was to be made in the course of Parliamentary or judicial proceedings, or the like, and that comment was to be published without any reference to some later qualification, retraction or rebuttal made in the same proceedings, the report could hardly be described as fair as it would not be "a substantially accurate summary of the proceedings" (Anderson v Nationwide News Pty Ltd, at 323, per Mason JA) or of the material part of those proceedings. However, where only the one comment is regarded as being of public interest for the purposes of the report, and there is no later qualification, retraction or rebuttal of it and the report is accurate and, objectively, fair (the fairness of the report being an objective question: Anderson, above, at 324), there would seem to me to be no reason for denying to the reporter of that comment the benefit of the defence.

80 Because the common law defence is one of qualified privilege, the defence can be defeated if the plaintiff is able to prove that the defendant was actuated by malice. Similarly, the defence provided by s 354 of the Code (which has not been pleaded by the appellant) might be defeated if the publication is not found to have been made "in good faith". Consequently, notwithstanding that the purpose of the publisher of the report was that of informing the public, if it can be shown that the publication was motivated by ill-will towards the plaintiff and that the publisher wished to injure him or her by the publication, then the publication will not be in good faith. It is important, in this respect, to bear in mind the distinction between purpose and motive: cf Waterhouse, above, at 64, per Hunt J.

81 When the articles in this case are considered in the light of these principles, it seems to me that the question whether what was said in respect of the contents of the inquiry in New South Wales amounted to a fair and accurate report is one which should have been held over for trial. The answer to that question might depend upon an examination of the whole of what took place in the inquiry, no evidence of that having been before us or, so far as I understand the position, before the primary Judge. Moreover, so far as the motive of the publisher is concerned, this seems to me to be material only to the question whether there was malice or, if the inquiry was one contemplated by s 354 of the Code (and if that section was to be relied upon), to the question whether the publication was made in good faith. In either case, the answer to that question would depend upon the evidence led at trial.

82 I would consequently uphold ground 5 of the grounds of appeal.

83 It follows, from the aforegoing, that grounds 2 and 5 of the grounds of appeal should be upheld and that the appellant should have leave to amend its defence in the terms of pars 5, 7.1, 7.2, 11, 13.1 and 13.2 thereof.

84 MCLURE J: I have had the advantage of reading in draft the reasons for judgment of Steytler J. I agree with orders proposed by his Honour and his reasons for judgment save with respect to the matters to which I now refer.

85 It was accepted by the parties that the Polly Peck defence is available in this jurisdiction. It was also accepted by the parties that the

scope of the defence is delineated by the extent to which a plaintiff can depart from his or her pleaded imputations. Further, there was no suggestion that the appellant in this case was attempting to justify a separate and distinct statement in the matter complained of (as to which see Polly Peck (Holdings) plc v Trelford [1986] QB 1000 at 1032 per O'Connor LJ).

86 The appellant advanced a novel contention as to the test to be applied on an interlocutory application to strike out Polly Peck imputations for going beyond the plaintiff's pleaded imputations. It was submitted that the strike out application must fail if the Polly Peck imputation is arguably one for which the plaintiff might contend at the conclusion of the trial. In the appellant's submission that would include, but not be confined to, a "nuance or variant, not substantially different or more serious from that proposed by the plaintiff" (the test formulated by Ormiston JA in David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667 at 675) and a less injurious meaning of the same kind (the test formulated by Diplock LJ (as he then was) in Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 175).

87 The appellant's formulation is the broadest of the three alternative approaches. That of Ormiston JA in David Syme v Hore-Lacy (supra) is in my view, the narrowest. It has been applied in this jurisdiction: Wallis & Ors v Wallis [2001] WASC 134 per Steytler J; Reynolds v Nationwide News Pty Ltd [2001] WASC 90 per Hasluck J; Jackson & Ors v ACP Publishing Pty Ltd [2001] WASC 121; Moir v Flint & Anor [2001] WASC 183 per McLure J.

88 Subsequently, I came to the view that it was arguable that Ormiston JA's formulation was unduly narrow having regard to the reasons of the majority in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 and the decision of the Full Court in Gumina v Williams (No 2) (1990) 3 WAR 351: Vitale & Ors v Bednall & Anor [2001] WASC 278.

89 I reached the view that a majority of the High Court in Chakravarti (supra) (with one proviso) and the Full Court in Gumina (supra) accepted the correctness of Lord Diplock's statement in Slim v Daily Telegraph Ltd (supra) as to the extent to which a plaintiff can depart from his or her pleaded imputations. Lord Diplock said (at 175):

"The plaintiffs, as they were entitled to do, chose to set out in their statement of claim the particular defamatory meaning which they contended was the natural and ordinary meaning of the words. Where this manner of pleading is adopted, the defamatory meaning so averred is treated at the trial as the most injurious meaning which the words are capable of bearing, and the plaintiff is, in effect, estopped from contending that the words do bear a more injurious meaning and claiming damages on that basis. But the averment does not of itself prevent the plaintiff from contending at the trial that even if the words do not bear the defamatory meaning alleged in the statement of claim to be the natural and ordinary meaning of the words, they nevertheless bear some other meaning less injurious to the plaintiff's reputation but still defamatory of him ..." (emphasis added)

90 The High Court in Chakravarti (supra) focussed on procedural fairness. Gaudron and Gummow JJ noted that the consequences of a plaintiff pleading a specific meaning are far from settled. After considering the English and Australian authorities (including Lord Diplock's statement in Slim v Daily Telegraph (supra)) they concluded (at 546):

"As a general rule, there will be no disadvantage in allowing a plaintiff to rely on meanings which are comprehended in, or are less injurious than the meaning pleaded in his or her statement of claim. So, too, there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. ... However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings."

91 However, as a practical matter, procedural fairness will depend upon whether the Polly Peck defence is available and if so its scope. Brennan CJ and McHugh J in a joint judgment expressed the opinion that a Polly Peck plea is not a good defence. The extent to which a plaintiff is bound by his pleadings will be affected by that view. They state (at 532) that the guiding principle is that a plaintiff who pleads a false innuendo cannot seek a verdict on a different meaning "which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis". On that basis, in the absence of a relevant Polly Peck imputation a plaintiff who pleads an imputation of guilt could not rely on a lesser imputation of a reasonable suspicion of guilt. On the other hand, if the defendant had pleaded a Polly Peck imputation of a reasonable suspicion of guilt there can be no suggestion of disadvantage.

92 Although their Honours refer with apparent approval to the reasons of King CJ in Prichard v Krantz (1984) 37 SASR 379 at 386, the approach in that case is difficult to reconcile with the approach, also cited with approval, of Fox J in Hadzel v De Waldorf (1970) 16 FLR 174 at 182 and Mahoney ACJ in Crampton v Nugawela [1996] NSWSC 651; (1996) 41 NSWLR 176 at 183.

93 The appellant's formulation of the interlocutory test for the strike out of a Polly Peck imputation seeks to take advantage of the High Court's focus on procedural fairness. The extent to which a plaintiff could depart at trial from his or her pleaded imputations would be dictated in large measure by the formulation of the defendant's Polly Peck imputations.

94 On my reading of the reasons in Chakravarti (supra), disadvantage to the defendant is an additional limiting factor on the extent to which a plaintiff can depart from his pleaded imputations not a factor that is intended to widen the plaintiff's (and in turn the defendant's) opportunities to depart from them. However, it is unnecessary on the facts of this case to make a determination on this issue or on the correct test to apply. On the facts of this case, for the reasons given by Steytler J the defendant's Polly Peck imputations satisfy the Hore-Lacy test. That is, they are not substantially different or more serious from the imputations pleaded by the plaintiff.

Civil Procedure Rules 1999

Nationwide News Pty Ltd v Moodie [2003] WASCA 273

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (148 paragraphs)

Nationwide News Pty Ltd v Moodie [2003] WASCA 273 (14 November 2003)

Parties

Legislation Cited (1)

Cases Cited (15)