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[2003] SASC 346
procedural. Paragraph 8 of the amended defence was disallowed. The application to disallow paragraph 9 was refused, so paragraph 9 remained. The judgment did not determine the defamation claim.
This was an early procedural decision in a defamation case, not a final ruling on whether the broadcast defamed Peek or whether either defence would ultimately succeed. The court removed the fair-comment defence because the detailed facts pleaded had only a tenuous connection to Peek. It allowed the qualified-privilege defence to remain because it was arguable that the rule applied in Rogers v Allen did not dispose of a Lange-form defence at this pleading stage.
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2,230 words · generated 29/09/2026
Peek brought a defamation action against Channel Seven Adelaide Pty Ltd over a segment broadcast on the current affairs programme Today Tonight on 10 June 2002. The segment concerned the disposal of property by Peter Liddy, whom Peek had represented as senior counsel in criminal proceedings in the Supreme Court of South Australia ([1]). The judgment does not set out the broadcast transcript itself. It records that a transcript was annexed to the statement of claim and that the plaintiff alleged the segment was defamatory of him.
No linked legislation citations have been extracted yet.
The broadcaster first filed a defence on 16 September 2002. It denied that the segment was capable of being defamatory and pleaded qualified privilege, including a defence based on political discussion and the decision in Lange v Australian Broadcasting Corporation ([4]). The amended defence added two provisions material to the application: paragraph 8 pleaded fair comment, and paragraph 9 pleaded qualified privilege on the basis that the broadcast discussed government and political matters and that publication was reasonable in the circumstances ([5], [19]).
The plaintiff sought orders concerning the amended defence. During argument, the focus became whether paragraphs 8 and 9 should be disallowed so that the earlier defence would stand ([2]). The judge treated the two pleaded defences separately because they involved different considerations ([11]-[12]).
The plaintiff's central contention was that the detailed facts pleaded to support the defences concerned Mr Liddy and other people, not Peek. The argument included that the broadcast was intended to refer to other lawyers and defamed Peek accidentally ([6]-[10]). The parties' argument proceeded on the assumption that, if the broadcast defamed Peek, it did so accidentally ([21]).
Judge Burley reached different procedural outcomes for the two paragraphs. Paragraph 8, the fair-comment defence, was disallowed. Paragraph 9, the qualified-privilege defence, was allowed to remain ([18], [22]). This was not a final determination of the defamation claim, nor a finding that either defence would succeed at trial.
The judge began with the threshold for striking out or disallowing a pleading. The parties did not dispute the applicable approach. The defence had to be shown to be devoid of merit, the power had to be exercised sparingly and only in clear cases, and the court had to assess the pleading rather than conduct a trial of the defence ([3]). If a defence had an arguable basis, it should not be disallowed. The plaintiff therefore had to show that the defence could not succeed on any view of the facts or law ([9]).
For fair comment, the judge accepted the broadcaster's submission that the issue concerned the words complained of and whether the relevant imputations were conveyed as comment. The defendant was not bound by the imputations asserted by the plaintiff; the court also had to consider the defendant's pleaded imputations in paragraphs 8.1 to 8.3 ([13]-[14]). The pleaded subject was said to be a matter of public interest, and that aspect had not been attacked. The contested issue was whether the particulars in paragraphs 8.6 to 8.89 could properly be facts on which the pleaded comment was based ([14]-[16]).
Those particulars occupied 36 pages. The judgment describes them as a detailed series of assertions about civil proceedings brought by victims of Mr Liddy's crimes to preserve his assets so that judgments for damages might be satisfied. The pleading did not suggest that Peek had been involved in those civil proceedings. The only identified connection was that some of his fees for representing Mr Liddy had been paid from a superannuation payout ([15]).
The judge treated the connection as insufficient. Applying an approach analogous to the reasoning in Rogers v Allen, the question was whether it was arguable that the pleaded imputations and particulars related to Peek. The judge concluded that the superannuation-fund reference was too tenuous to sustain the proposed fair-comment defence ([16]-[18]). That conclusion was confined to the pleading before the court. The judgment did not decide any broader question about fair comment in circumstances different from those pleaded.
The qualified-privilege paragraph required a separate analysis. Paragraph 9 relied on the same particulars, as well as other pleaded matters, to support two propositions: that the broadcast discussed government and political matters, and that publication was reasonable in the circumstances ([19]-[20]). The judge noted that Rogers v Allen had not considered the Lange form of qualified privilege ([21]). The broadcaster's argument was, in substance, that the different form of defence meant Rogers did not prevent reliance on the particulars for those purposes.
The judge did not finally resolve that legal question. Instead, the application's procedural threshold controlled. It was at least arguable that Rogers v Allen did not apply where a Lange-form defence was relied on. Because the particulars were pleaded as supporting the political or governmental character of the discussion and reasonableness, the judge considered it inappropriate to disallow paragraph 9 ([21]-[22]). The result preserved the issue for further proceedings; it did not establish that the defence was factually or legally made out.
The judgment describes the procedural principles it applied by reference to four authorities. Chapman and Chapman v Australian Broadcasting Corporation is cited for the proposition that a defence challenged in this way must be devoid of merit ([3]). Egan v The Commonwealth Minister for Transport and General Steel Industries Inc v Commissioner for Railways are cited for the rule that striking out is a sparing power, appropriate only in clear cases. Brimson v Rocla Concrete Pipes Ltd is cited for the proposition that the court's assessment is based on the pleading and does not involve trying the defence's merits ([3]).
The judgment's treatment of Rogers v Allen supplies the important distinction in this case. In Rogers, according to Judge Burley's account, the defamatory material had been intended to refer to one person named Rogers but was held to apply to another person with the same surname. The facts supporting qualified privilege related to the intended target, not the plaintiff. The Full Court held that the defendants could not rely on those facts to support qualified privilege for the accidental defamation of the plaintiff ([7]-[8]).
Peek did not treat Rogers as irrelevant. For fair comment, the judge considered its approach applicable by analogy and found the pleaded connection to Peek too tenuous ([16]-[18]). For the Lange-form qualified-privilege defence, however, the judge observed that Rogers had not considered that form of defence. The judge held only that it was at least arguable that Rogers did not apply in the same way, and that this arguable distinction justified leaving paragraph 9 in place ([21]-[22]).
The judgment therefore records a procedural difference in the treatment of the two defences, not a final change to the substantive law. It does not hold that every fact about a public matter can support a defence when a plaintiff is accidentally identified. Nor does it decide that the particulars in paragraph 9 ultimately establish a political or governmental discussion or reasonable publication. Its immediate effect was to remove one pleaded defence and preserve another for later determination.
The judgment itself provides no account of subsequent cases or later treatment of Peek. It is therefore not possible, from this source alone, to describe whether later courts followed, limited, distinguished, or rejected its reasoning.
At [3], the judge states that the power to strike out “must be exercised sparingly and only in clear cases.” In plain English, a pleading dispute is not a mini-trial. A court should not remove a defence simply because its factual basis is contested or appears weak; the relevant question is whether it is plainly without merit on the pleading.
At [9], the judge says that an arguable defence should not be disallowed. The plaintiff had to show that the defence could not succeed “on any view of the facts or law.” This is a demanding threshold. It explains why the court could reach different outcomes for paragraphs 8 and 9 without deciding the final merits of the case.
At [15], the judge identifies the practical problem with the fair-comment pleading. The particulars related to civil proceedings intended to preserve Mr Liddy's assets, and the pleading did not allege Peek had anything to do with those proceedings. The only link identified was the payment of some of his fees from a superannuation payout. This account matters because the court assessed the connection as pleaded, rather than deciding what evidence might later emerge.
At [18], the judge describes that link as “too tenuous” and disallows paragraph 8. The plain-English point is that the pleaded facts did not sufficiently connect the subject matter said to support the comment with Peek for this defence to remain in the amended defence.
At [22], the judge says it was “at least arguable” that Rogers v Allen did not apply where the Lange defence was relied upon. This does not mean the court decided Rogers was inapplicable. It means that the possibility of a distinction was sufficient to prevent paragraph 9 from being struck out at this stage.
The decision is most directly relevant to a pleading-stage challenge in a defamation action where a defendant relies on facts about an intended subject of a broadcast, while the plaintiff says the publication also defamed them accidentally. The judgment expressly records that the application proceeded on the assumption that any defamation of Peek was accidental ([21]).
It is also relevant where a plaintiff challenges whether pleaded particulars have a sufficient connection to them to support fair comment. In Peek, the particulars concerned civil proceedings about the intended subject's assets, while the plaintiff's only pleaded connection was that some fees had been paid from a superannuation payout. The court considered that connection too tenuous ([15]-[18]). The decision does not establish that any indirect connection is necessarily inadequate; it evaluates the specific pleading before it.
A further relevant situation is where the defendant pleads a Lange-form qualified-privilege defence and relies on facts both to characterise a broadcast as discussion of government or political matters and to support reasonableness. The court held that the possible distinction from Rogers v Allen was arguable, not conclusively established ([19]-[22]). This decision may therefore be useful where the question is whether such a defence should be removed at the pleading stage, rather than whether it will succeed after evidence and full argument.
The case is less directly informative where the court is asked to determine the final merits of a fair-comment or qualified-privilege defence. Judge Burley expressly confined the application to the pleading and did not conduct a trial of the defences ([3], [9]). It also does not provide a detailed account of the broadcast itself, the full pleaded imputations, or the evidence. Those limits matter when assessing how closely another case matches this one.
The supplied judgment contains no discussion of cases decided after 2 October 2003 and no account of later judicial treatment of Peek. It would therefore be unsupported to say that later courts have followed, applied, distinguished, or rejected it.
The authorities the judgment does discuss are earlier authorities. Rogers v Allen is considered in relation to the connection between the facts supporting a defence and the person defamed. Judge Burley applied its approach by analogy when assessing fair comment, but treated its relevance to the Lange-form qualified-privilege plea as unresolved and potentially distinguishable ([16]-[18], [21]-[22]). Lange is mentioned as the source associated with the political-discussion form of qualified privilege, but the judgment does not analyse the High Court's reasoning in detail ([4], [21]).
For a full account of later treatment, a separate case-law search would be required. That information is not contained in this judgment and is not supplied here.
The judgment leaves the ultimate merits of paragraph 9 unresolved. It says only that the distinction from Rogers v Allen was arguable and that the pleading should remain. It does not decide whether the broadcast in fact concerned government or political matters, whether publication was reasonable, or whether the pleaded particulars would establish those propositions ([19]-[22]).
It also does not finally determine the precise legal relationship between Rogers v Allen and a Lange-form defence. The judge expressly stops at the pleading-stage conclusion that Rogers might not apply in the same way ([21]-[22]). The reasoning therefore should not be read as a final substantive ruling on that issue.
For fair comment, the decision identifies the tenuous connection in this particular pleading but does not elaborate a general test for how closely the facts on which comment is based must relate to a plaintiff who was allegedly defamed accidentally. The court's conclusion rests on the particular imputations and particulars pleaded, including the absence of any alleged involvement by Peek in the civil proceedings about Mr Liddy's assets ([14]-[18]).
Finally, the judgment does not determine whether the broadcast was defamatory of Peek, whether the plaintiff's asserted meaning was conveyed, or what consequences followed from the publication. Those issues remained outside this interlocutory application. The disposition was limited to the amended defence: paragraph 8 was removed, and paragraph 9 remained available for later consideration.
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1 JUDGE BURLEY. This is a defamation action brought by the plaintiff against the defendant in respect of a television broadcast on 10 June 2002. A transcript of the broadcast is annexed to the statement of claim. The broadcast formed part of a current affairs programme called "Today Tonight" and the segment of that programme said by the plaintiff to be defamatory of him concerned the disposal of property by a Peter Liddy, who had been represented by the plaintiff as senior counsel in criminal proceedings brought against Mr Liddy in the Supreme Court. The defendant has filed an amended defence in these proceedings. The amendment was made without the leave of the Court as permitted by the Rules, but such amendments are subject to disallowance if the plaintiff can establish that the amended pleading is bad for one reason or another.
2 By an application dated 3 June 2003 the plaintiff has applied for various orders in respect of the amended defence. It became clear during the hearing of the application that the plaintiff sought a disallowance of the amended pleading or striking out of the amendments with the effect that the original defence which was filed on 16 September 2002, would stand as the defence of the defendant. During the course of argument, I indicated that I thought that the arguments advanced by the parties were such that the decision to be made was whether or not the whole of the amended defence should be disallowed so that the original defence stood as the defence of the defendant. Having considered the arguments of counsel since then, I think the proper approach to be taken is to decide whether either or both of paragraphs 8 or 9 should be permitted to stand.
3 There was no dispute between the parties as to the basis upon which the Court acts on an application such as this. It must be shown that the defences referred to in the amended defence must be devoid of merit: Chapman and Chapman v Australian Broadcasting Corporation [2000] SASC 146; (2000) 77 SASR 181 at 185. The power to strike out must be exercised sparingly and only in clear cases: Egan v The Commonwealth Minister for Transport (1976) 14 SASR 445; General Steel Industries Inc v Commissioner for Railways (NSW) and Others [1964] HCA 69; (1964) 112 CLR 125. The decision is to be made by reference to the pleading. The Court may not embark upon a trial of the merits of the particular defence: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937.
4 In both defences the defendant denies that the segment of the programme referred to is capable of being defamatory of the plaintiff. In the original defence of the defendant, it relied on the defence of qualified privilege and the defence of qualified privilege in that the broadcast constituted political discussion: cf Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. In these reasons, I shall refer to that defence as the defence of qualified privilege.
5 In the amended defence the defendant has introduced for the first time, by paragraph 8, the defence of fair comment. Particulars of the facts upon which the comment is based are set out in the following 36 pages of the pleading. In paragraph 9 of the amended defence, the defendant relies upon qualified privilege on the basis that the broadcast constituted a discussion of government and political matters. The particulars set out in paragraph 8 are relied upon, in addition to other matters set out in paragraph 9, to support the defence of qualified privilege.
6 Mr Whitington QC, counsel for the plaintiff, contended that the amendments should be disallowed because the factual basis to the defences of qualified privilege and fair comment has nothing to do with the plaintiff. Mr Whitington submitted that the broadcast by the defendant was intended to apply to legal representatives of Mr Liddy other than the plaintiff and that the broadcast defamed the plaintiff by accident.
7 It appears to be common ground that there are other proceedings by other legal practitioners against the defendant which have been brought as a result of the broadcast the subject of these proceedings. The defendant in those proceedings has relied upon the defences of fair comment and qualified privilege, in support of which the defendant has pleaded the same facts as those upon which the defendant relies in the amended defence. It was submitted by Mr Whitington that those facts do not relate to the conduct of the plaintiff and as such cannot be relied upon to support the defences of qualified privilege and fair comment as pleaded in the amended defence. I was referred to the decision of the Full Court in Rogers v Allen and Others (1989) 154 LSJS 95. In that case, the plaintiff was one of two persons with the surname Rogers who was defamed by the publication of some election material during the course of a local government election. The defamatory material was not intended to refer to the plaintiff. The trial Judge held that the defamatory material nevertheless applied to the plaintiff. This decision was not challenged on appeal. The trial Judge went on to consider the question of whether or not the defence of qualified privilege raised by the defendants had been made out. He held that the defence had been made out and this conclusion was the subject of the appeal to the Full Court.
8 The factual basis relied upon by the defendant in that case to support the defence of qualified privilege was related to the other person called Rogers, who was the intended target of the defamatory material. The Full Court held that the defendant could not rely upon the defence of qualified privilege when such a defence was based on facts which only went to the question of whether or not qualified privilege could be relied upon in relation to the defamation of the intended target of the publication.
9 I bear in mind that Rogers v Allen and Others was an appeal from a decision of a Judge who presided at the trial of the defamation action. This is to be contrasted with the application before me, which is one based on pleadings. It is not my function on an application such as this finally to decide the areas of dispute between the parties. If there is an arguable basis to the defendant's defence it should not be disallowed. It follows that, if the plaintiff is to succeed in respect of the first argument, he must demonstrate that, on any view of the facts or law, the defences which the defendant wishes to pursue as pleaded by way of amendment in the defence cannot succeed.
10 As I understand the plaintiff's argument, it is that the facts relied upon by the defendant in its amended defence do not relate to the plaintiff, and, therefore, as a matter of law, the defences of fair comment and qualified privilege are untenable.
11 Mr S Doyle, counsel for the defendant, argued that the defences of fair comment and qualified privilege raised respectively in paragraphs 8 and 9 of the amended defence, properly understood, were adequately pleaded. He submitted that because different considerations applied to each of the two defences, the adequacy of each of the two defences had to be separately considered. I agree with that submission.
12 In dealing separately with each of the two defences, I bear in mind that Rogers v Allen was a case involving qualified privilege and, to that extent, it may only apply to the question of whether or not the pleading in paragraph 9 of the amended defence, qualified privilege, should be permitted to stand.
13 As to the defence of fair comment, Mr Doyle contended that such a defence is aimed at the words complained of rather than the imputation said by the plaintiff to arise from the words complained of. At paragraph 23.1 of his written submission he stated:
"The issue is whether the imputations for which the plaintiff contends (or ones substantially similar) were conveyed as comment."
14 I agree with that submission. I also agree with his submission that the defendant is not bound by the imputations contended for by the plaintiff. Consequently, the imputations contended for by the defendant as set out in paragraphs 8.1 to 8.3 of the amended defence have to be considered. It is in respect of these imputations that the defendant contends that the broadcast constituted fair comment on the matter of public interest. Particulars of the public interest are set out at paragraph 8.5 and these have not been the subject of attack. The amended defence then sets out in paragraphs 8.6 to 8.89 particulars of facts upon which the comment is based. These are the 36 pages of particulars which the plaintiff says should be disallowed because they do not relate to the plaintiff.
15 The only basis upon which Mr Doyle sought to link those particulars to the plaintiff was that the plaintiff was one of the lawyers of Mr Liddy who received legal fees in preference to the victims. However, apart from reference to legal fees being paid from a superannuation payout (part of which, it is common ground, was paid to the plaintiff in respect of his fees for having acted for Mr Liddy in respect of the criminal proceedings), there is no reference to the plaintiff. The particulars relied upon are otherwise given over to a detailed series of assertions relating to civil proceedings brought by the victims of Mr Liddy's crimes in order to preserve Mr Liddy's assets so that any judgment obtained for damages by any of the victims might be satisfied. It is not suggested that the plaintiff had anything to do with the civil proceedings.
16 From this analysis of the pleadings, the question to be decided on this application is whether or not the particulars contained in paragraphs 8.6 to 8.89 of the amended defence may be properly relied upon as particulars in respect of which the comment is based. In my view the decision of the Full Court of this court in Rogers v Allen is not directly applicable because that decision dealt with the defence of qualified privilege. At best, the plaintiff's contention, where reliance is placed upon Rogers v Allen, is that the same approach as taken in relation to the defence of qualified privilege should be taken in relation to a pleading of particulars upon which fair comment is said to be based.
17 In my view, the approach to be taken on this application is essentially the same as the approach taken by the Full Court in Rogers v Allen. I must examine the pleading to see whether or not it is arguable that the imputations set out at paragraphs 8.1 to 8.4 of the amended pleading and the particulars given at paragraphs 8.6 to 8.89 may properly be said to relate to the plaintiff.
18 The only connection raised in those paragraphs between the imputations and particulars on the one hand and the plaintiff on the other hand, is the reference to a superannuation fund out of which some of the plaintiff's fees were paid. In my view, that constitutes too tenuous a connection to the extent that the proposed defence may be said to be devoid of merit. For these reasons I propose to disallow paragraph 8 of the amended defence.
19 I now turn to a consideration of paragraph 9 of the amended defence which raises the defence of qualified privilege. The relevant parts of paragraph 9 are as follows:
"Further or in the alternative, the broadcast was published on an occasion of qualified privilege in that the broadcast constituted the discussion of government and political matters and the Defendant's conduct in publishing the broadcast was reasonable in the circumstances.
Particulars of the Discussion of Government and Political Matters
9.1 the Defendant repeats paragraphs 8.6-8.89 inclusive above;
9.14 The Defendant had reason for believing the facts contained in the broadcast and pleaded in paragraphs 8.6-8.89 inclusive of this Defence to be true."
20 I shall refer to the particulars in paragraphs 8.6-8.89 as "the particulars". It is apparent that the defendant relies upon the particulars, in addition to the matters pleaded in paragraphs 9.2 to 9.13, to establish that the broadcast constituted the discussion of government and political matters, and, secondly, in addition to paragraphs 9.15 to 9.18 to establish that the broadcast was reasonable in the circumstances.
21 In Rogers v Allen, the Full Court did not have under consideration the Lange form of the defence of qualified privilege. As I understand Mr Doyle's argument, the Lange defence was different from the ordinary defence of qualified privilege such that it was permissible for the defendant to rely upon the facts as pleaded in paragraphs 8.6 to 8.89 to support the contention that the broadcast consisted of the discussion of government and political matters and to support the contention that the broadcast was reasonable. Although Mr Doyle did not specifically submit that the decision in Rogers v Allen should be distinguished, I understand that to be the essence of his submission. Such a submission requires me to consider whether or not there must be a material link between the particulars relied upon and the conduct of the plaintiff. This is in the context where the application before me was argued on the assumption that if the broadcast or any part of it defamed the plaintiff, such defamation occurred accidentally.
22 In my view, it is at least arguable that the decision in Rogers v Allen does not apply where the Lange defence is relied upon. Because the particulars are said to support the contention that the broadcast consisted of discussions of governmental and political matters and that it was reasonable, it would be inappropriate to disallow paragraph 9 of the amended defence. For these reasons the application by the plaintiff to disallow paragraph 9 should be refused.
PEEK
CHANNEL SEVEN ADELAIDE PTY LTD No. SCCIV-02-1127 [2003] SASC 346
(2000) 77 SASR 181
(1976) 14 SASR 445
(1964) 112 CLR 125
(1997) 189 CLR 520
Paragraph 8 of the amended defence was disallowed. The application to disallow paragraph 9 was refused, so paragraph 9 remained. The judgment did not determine the defamation claim.