Parnell v Harbour Radio Pty Ltd

The defence that is pleaded and the relevant statutory provisions

1. In paragraph 8(b) of its Defence in this case the defendant has pleaded "(b) Honest Opinion (i) Each of the matters complained of was an expression of opinion rather than a statement of fact. (ii) The opinion related to a matter of public interest; and (iii) The opinion was: A. Based on proper material, being material that is true or substantially true; or B. Alternatively, based on material which included proper material and represented an opinion which might reasonably be based on such of that material as was proper material."
2. Section 31 Defamation Act 2005 (NSW) provides "31 Defences of honest opinion (1) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (2) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of an employee or agent of the defendant rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (3) It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter was an expression of opinion of a person (the "commentator"), other than the defendant or an employee or agent of the defendant, rather than a statement of fact, and (b) the opinion related to a matter of public interest, and (c) the opinion is based on proper material. (4) A defence established under this section is defeated if, and only if, the plaintiff proves that: (a) in the case of a defence under subsection (1)--the opinion was not honestly held by the defendant at the time the defamatory matter was published, or (b) in the case of a defence under subsection (2)--the defendant did not believe that the opinion was honestly held by the employee or agent at the time the defamatory matter was published, or (c) in the case of a defence under subsection (3)--the defendant had reasonable grounds to believe that the opinion was not honestly held by the commentator at the time the defamatory matter was published. (5) For the purposes of this section, an opinion is based on "proper material" if it is based on material that: (a) is substantially true, or (b) was published on an occasion of absolute or qualified privilege (whether under this Act or at general law), or (c) was published on an occasion that attracted the protection of a defence under this section or section 28 or 29. (6) An opinion does not cease to be based on proper material only because some of the material on which it is based is not proper material if the opinion might reasonably be based on such of the material as is proper material."
3. The defendant is effectively pleading that each of the two matters complained of is an expression of opinion, rather than statements of fact, and what the plaintiff has done, according to paragraph 5 of the written submissions provided by Mr Evatt, is to request the defendant to "identify the opinion or the expression of the opinion" on the basis that "the plaintiff does not know what the opinion is on which the defendant relies or whether it was or could be a statement of fact".
4. I should first set out the relationship of the defence of opinion to the imputations. Mr Evatt draws to my attention the following extract from Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245: "Hence the defendant's contention that in this case the meaning pleaded by the plaintiff is irrelevant to the defence of fair comment at common law is wrong. It is wrong because by the time the trial judge comes to consider the fair comment defence the question of meaning will have been decided adversely to the defendant. The meaning found is the comment to be scrutinised for its fairness. An initial question will be whether the ordinary reasonable viewer would have understood that the meaning found to have been conveyed was conveyed as comment." (Footnotes omitted)
5. Mr Evatt also refers me to McCallum J's statement at [45] in O'Brien v Australian Broadcasting Corporation [2016] NSWSC 1289: "[45] A further matter may be noted in respect of questions in the form of those posed for the jury in Ahmed. Question 4 is directed, in terms, to the imputations specified by the plaintiff (that feature of the questions, in turn, appears to have informed the view of the Court in Ahmed that the form of the questions may not have assisted the jury). Both the defence of fair comment at common law and the defence of honest opinion under s 31 of the Defamation Act are directed to the matter complained of (rather than to the imputations specified by the plaintiff, as in the case of the defences under ss 25 and 26 of the Defamation Act). However, as explained by the High Court in Channel Seven Adelaide Ltd v Manock, the meaning pleaded by the plaintiff is relevant to the defence, not least because it is the meaning found by the court that is to be scrutinised for its fairness. On that basis I accept that, as occurred in Ahmed, a question to be posed for the tribunal of fact is whether the ordinary reasonable viewer would have understood the meaning found to have been conveyed as comment as opposed to fact." (Footnotes omitted)
6. The New South Wales Court of Appeal overturned (by majority) her Honour's finding in relation to one of the two imputations and held that the comment defence succeeded only in relation to the second imputation, an imputation of irresponsible journalism. Interestingly, however, the defence of comment nevertheless succeed, despite the overturning of McCallum J's finding as to the imputation of trickery.
7. More recently, in Tabbaa v Nine Network Pty Ltd (No 10) [2018] NSWSC 468 at [38]-[84], Fagan J set out an analysis of the defence of honest opinion, although in the context of there having been an agreed form of questions from which the plaintiff later sought to resile. For that reason, it is not necessary for me to consider or adopt the reasoning set out in that judgment. I do not, however, interpret his Honour's statements as endorsing in any way a requirement for the defendant to provide particulars of the opinion.
8. The statements of the law by the High Court, Fagan J and McCallum J in the decisions referred to above are standard statements as to the nature of the defence of comment and its relationship to the imputations, a position which is substantially the same under both the repealed and the current legislation. Nothing in these statements identifies a requirement for there to be particulars of the opinion relied upon.
9. There are in fact statements to the contrary set out in R. E. Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (formerly The Law of Defamation in Canada) (2nd ed., Thomson Reuters, Canada) at [20.36]. Professor Brown notes the entitlement of the plaintiff to the facts which go to the substance of the matter and the facts and matters upon which the defendant relies to establish the material is proper basis for comment, but does not suggest that there should be particulars of opinion as well. To the contrary, he states: "… He is entitled to know in clear and unmistakable terms what are the facts which are alleged to be true, and what are expression of opinion; he can only know these if the facts are particularized. However, it has been said that the plaintiffs are as competent to distinguish fact from comment as are defendants, and if they need particulars in that regard they must specifically ask for them. The plaintiff is also entitled to the facts and matters upon which the defendant relies to establish that the material is a proper basis for comment, and that it is related to a matter of public interest. If a plea of both the defences of truth and fair comment are entered, defendants "are required to give particulars of both defences but they are not required to say whether the words complained of are fact or comment."" (Footnotes omitted)
10. In Sims v Wran, Hunt J has set out the particulars of the defence of comment in detail. These are: 1. the material upon which the comment was based, 2. the extent upon which the comment was based is alleged to be proper material for comment, 3. the facts and matters relied upon to establish comment, 4. public interest and 5. the identity of servants or agents.
11. All of those applied in relation to the codified defence of comment under the repealed legislation and would also apply here.
12. Hunt J went on to state, at 324B: "It should also be noted that nowhere do the rules require the defendant to identify those statements in the matter complained of which he will contend at the trial to be expressions of opinion rather than statements of fact. No doubt in a special case such particulars may be ordered; such a case may perhaps arise where the issue of the capacity of the matter complained of to be understood as being comment or as other than comment is to be determined as a separate issue before trial, pursuant to Pt 31, r 2. But that would be a somewhat rare situation. It is not an issue which requires the plaintiff to prepare evidence (rather than argument) to meet the defendant's case at the trial. There is, therefore, absent the same justification for requiring particulars identifying the comment in the matter complained of as there exists for requiring particulars identifying the basis for that comment. It is important to emphasize the point that the jury's determination of what is fact and what is comment is not related to what the author of the matter complained of actually intended to be fact or comment; rather, it is related to what the reader would have understood from the matter complained of itself to have been intended by the author: see Bickel's case (at 492). The two may produce very different results; cf Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 at 667. If the defendant were to be ordered to give particulars identifying those statements which he will contend at the trial to be expressions of opinion rather than statements of fact, all that he would be doing would be to forecast the jury's finding on this issue; it could be of no assistance to the plaintiff in his preparation for trial. Generally speaking, the defendant will not be obliged to give such particulars." [Emphasis added]
13. This passage of Sims v Wran was cited most recently in Prowse v Harbour Radio Pty Ltd [2016] NSWSC 57 at [6]. However, it was not cited on this point, which Mr Richardson informs me has not, to his knowledge, been the subject of consideration by any other judge.
14. Mr Richardson submits, and I agree, that the observations of Hunt J in Sims v Wran at 324B have the same if not more force in relation to the uniform legislation, in that the defence of honest opinion clearly applies to the matter complained of and not to the imputations: Harbour Radio Pty Ltd v Ahmed (2015) 90 NSWLR 695 at [40]-[44].
15. Mr Evatt seized upon Hunt J's reference to "special circumstances" and suggested that the length of the matter complained of could be a relevant factor. That might be understandable if the matter complained of were a lengthy novel or a complex financial report, but this is a short radio broadcast where the language is simple and the substance repetitive. As Mr Evatt was unable to point to other "special circumstances" of the rare kind postulated by Hunt J, I do not propose to speculate further upon what these might be.

Conclusions

1. I am satisfied that the defendant is not required to identify the part or parts of the matter complained of alleged to be opinion or comment, for the reasons explained by Hunt J in Sims v Wran and Professor Brown and set out above. The potential for a defendant to assert that "opinion" which is not pleaded as an imputation can somehow also be relevant to the meaning can only be contrary to the legislative requirement for imputations to be pleaded which encapsulate the defamatory sting. The sole exception for defendants pleading imputations arises in relation to s 26.
2. I acknowledge that problems arise where one or more of the imputations are held by the court not to be protected by the defence. Interesting questions may arise as to the basis of such a finding and the roles are displaced. I note the consideration of the defence in O'Brien v Australian Broadcasting Corporation [2017] NSWCA 338 (where the defence succeeded at first instance in relation to a publication giving rise to two imputations), but the defendant succeeded on other grounds and the consequences of a defence of honest opinion failing in relation to one of the two imputations for which it had succeeded at first instance is not considered. However, at no time, in the course of the judgment at first instance or on appeal, is there any reference to a requirement for the defendant to give particulars of the kind sought here, so these learned decisions are not determinative of any issue relevant to this application.
3. There was discussion, in the course of argument, as to whether these asserted problems with the defence of honest opinion meant that, at trial, the questions to the jury on the defence of comment should precede or follow the questions concerning justification. This is an issue which I propose to leave to the trial judge. I note, however, that Mr Richardson's observation that the defence of justification is considered before the defence of comment is generally the approach taken, possibly because it is an easier defence for the jury to deal with.

Orders and costs

1. Accordingly, the plaintiff's application for the defendant to "identify the expression of opinion relied upon in each broadcast" is dismissed.
2. Owing to the imminence of the trial, I shall reserve the issue of costs to the trial judge, as this issue may arise in terms of trial case management and the trial judge will be better placed to deal with this issue.

Orders 1. Grant leave to the defendant to file a Further Amended Defence in court to include a defence under s 26 Defamation Act 2005 (NSW), subject to the following provisos: 1. The plaintiff is entitled to "plead back" the contextual imputations set out in paragraph 8(e) of the Defence; 2. The defendant's present intention to reclaim the proposed new imputations, if proved true, may be argued at the trial (as to which see Fairfax Digital Australia and New Zealand Pty Ltd v Kazal [2018] NSWCA 77) but is not the subject of any expressed ruling or exception by the court. 1. The plaintiff's Further Amended Statement of Claim pleading back the said imputations is to be filed by 4:00pm Wednesday 16 May 2018. 2. Note the parties agreed that the defence of honest opinion pursuant to s 31 Defamation Act 2005 (NSW) must be pleaded to the publications and not the imputations. 3. Plaintiff's application for the defendant to "identify the expression of opinion relied upon in each broadcast" is dismissed. 4. Costs of the application reserved to the trial judge. 5. Matter stood over to the Defamation List on Thursday 17 May 2018.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 May 2018