PERKINS v HARRIS

ON APPEAL - his Honour's conclusion inconsistent with his premises - if defendant's imputations different in substance from plaintiff's, then in justifying those imputations the defendant would necessarily be proving more than he would prove in justifying the imputations relied on by the plaintiff; further, in answer to plaintiffs submission on appeal that a defendant could not, under s16 plead plaintiff's imputations 2, 3, etc against plaintiffs imputation 1, held, defendant may plead a s16 defence to each cause of action relying on whatever contextual imputations the defendant undertakes to justify except only the imputation comprising the cause of action to which the defence is being pleaded; further, if it becomes clear at a pre-trial stage that a s16 defence without any real prospect of success has been pleaded simply to put before the jury evidence intended to mitigate damages which the defendant would not otherwise be entitled to lead, then the court should accede to a plaintiff's pre-trial application that such defence be struck out.

3. Plaintiff to pay defendant's costs in the interlocutory proceedings so far as they relate to striking out para5.

4. Respondent/plaintiff to pay defendant's costs of the appeal.

Mahoney JA This is one of the matters argued in multiple proceedings brought against Mr Perkins by reason of his publication of a book entitled The Gambling Man.

l agree with the judgment of Priestley JA and the orders he proposes in relation to this aspect of the litigation.

This opinion deals with the second of two appeals which had some common features and were heard consecutively. Each was brought against interlocutory orders in defamation proceedings complaining of material in a book entitled The Gambling Man written by Mr K Perkins. Each concerned s16 of the (NSW) Defamation Act 1974 (the Act). However, the arguments in the two appeals did not follow the same course and did not raise identical questions. Because of that

it has seemed simplest to treat each appeal as self contained, although this will mean that my opinion in each appeal will contain some material that appears in the same terms in the other.

This second appeal arises in proceedings commenced by Mr A Harris as plaintiff against Mr Perkins as the first defendant, and other defendants. Amongst the defences relied on by Mr Perkins was one set out in paraS of his defence, based on s16.

Mr Harris applied for various orders concerning the first defendant's pleading documents, including an order that the first defendants' s16 defence be struck out. Ireland J, who heard the application, made some of the orders sought by Mr Harris, one being that the s16 defence be struck out. The first defendant appealed against this last mentioned order.

The appeal raises questions concerning s16 which, the court was told, have not previously been dealt with at appellate level, although at first instance they have been considered in detail on a number of occasions.

S16 is headed TRUTH: CONTEXTUAL IMPUTATIONS. It is in the form recommended by the Report of the Law Reform Commission on Defamation (LRC 11 (1971)) pursuant to which the Defamation Act was enacted in 1974. Para73 and para74 of the Report outlined the object of s16:

"73. Suppose that the defendant has published an imputation that the plaintiff has been convicted of simple larceny and an imputation that the plaintiff has been convicted of fraudulently converting trust property to his own use. Suppose that the first imputation is false but the second is true. If the plaintiff sues for damages for defamation in respect of both imputations a defence of truth will fail because the truth of both charges cannot be proved. In England the effect of the Defamation Act 1952, s5, is that in such a case a defence of truth will succeed if the first imputation did not materially injure the plaintiff's reputation having regard to the truth of the second imputation. We agree with the object of this section, as far as it goes.

74. But if on facts such as these the plaintiff sues only in respect of the first imputation he will still succeed notwithstanding a provision along the lines of s5 of the English Act of 1952: Plato Films Ltd v Speidel [1972] AC 1090). A Bill (the Freedom of Publication Protection Bill) was introduced in Parliament at Westminster in 1966 with a view, amongst other things, to substitute a new section for s5 of the 1952 Act. The new section would have embraced the case where the plaintiff sues on such imputations only as cannot be proved to be true. We agree also with the object of this proposed substitution. S16 is intended to carry this object into effect. Its expression has to be more elaborate than that of the English proposals because place must be given to questions of public interest and qualified privilege. The Freedom of Publication Protection Bill was not passed: this was, we believe, because of the controversial nature of other provisions of the Bill."

Thus, the s16 proposed by the Law Reform Commission was directed to cases which, in England, were of the following kind. A publication made a number of defamatory imputations about a person (the plaintiff). The plaintiff sued. The plaintiff, being of opinion that the publisher (the defendant) would be able to justify (that is, in England, prove the truth of) one or more of the imputations, but not all, sued on one or more imputations which the plaintiff thought the defendant could not justify. The imputations which the plaintiff thought the defendant could justify (and on which the plaintiff had not sued) might be of such weight (if

justified) that the plaintiff's reputation could not really have been affected by the imputation or imputations on which the plaintiff had sued, and to which the defendant had no defence. Nevertheless the plaintiff might still get judgment. S16 was intended to prevent this by allowing the defendant in such a case to rely in defence on all or some of the imputations not sued on.

However, although in England a defendant established a plea of justification by establishing the truth of the defamatory imputation or imputations sued on, in New South Wales a plea of justification had required since 1847 that the defamatory publication be both true and for the public benefit. The Law Reform Commission decided to recommend the retention of such a requirement, although in slightly different language (see para61-para66 of their Report). Qualified privilege had always been a defence, whether truth were established or not. It was therefore necessary for the Law Reform Commission in preparing its draft law for New South Wales to provide for these matters also when dealing with the basic situation described in para73 and para74.

"16.(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.

(2) It is a defence to any imputation complained of that:

(a) the imputation relates to a matter of public interest or is published under qualified privilege;

(b) one or more imputations contextual to the imputation complained of:

(i) relate to a matter of public interest or are published under qualified privilege; and

(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff."

So, the Act, which retained the previously existing defence of justification to imputations sued on (in s15), added by s16 a further defence by reference to defamatory imputations not sued on.

Mr Harris filed his statement of claim in 1991. The version on foot when Ireland J considered the application to strike out was the Second Further Amended Statement of Claim filed in 1992. In para3 twelve imputations were pleaded. In a number of annexures to the Statement of Claim parts of The Gambling Man were set out as being the matter complained of which conveyed the allegedly defamatory imputations.

In the first defendant's Further Amended Defence, also filed in 1992, various defences were asserted, that in para4 based on s15 and that in paraS based on s16. The imputations pleaded by the first defendant in paraS were nineteen in number, twelve being in the same terms as the plaintiff's imputations. The first defendant also filed Particulars of Truth.

In 1993 the plaintiff filed a notice of motion asking that para4 and paraS of the first defendant's Defence and that all or alternatively some of the Particulars of Truth be struck out. Ireland J, on 2 June 1994, published his reasons and made orders allowing some of the particulars, striking out others, granting leave to reparticularise others and striking out paraS of the Defence.

The first defendant's appeal is against only the order Ireland J made striking out para5.

"(a) That the Plaintiff conspired with various persons including a known criminal, George Freeman, and Freeman's associates to procure the unjust charging and conviction of Robert William Waterhouse and William Stanley Waterhouse on criminal charges relating to the Fine Cotton ring in;

(b) That the Plaintiff conspired with George Freeman and Freeman's criminal associates in an effort to damage the First Defendant;

(c) That the Plaintiff conspired to pervert the course of justice;

(d) That the plaintiff in 1974 at Warwick Farm engaged in an attempt to dishonestly obtain for himself financial rewards from the doping of racehorses by a person known as the 'Fence Jumper';

(e) that the Plaintiff so conducted himself that he ought to have been warned off race tracks;

(f) that the Plaintiff supplied the Australian Jockey Club, or its employees, with false information harmful to the Waterhouses, knowing the information to be false;

(g) That the Plaintiff published false information harmful to the First Defendant knowing the information to be false;

(i) That the Plaintiff was a welcher and defaulter on his gambling debts;

(k) That the Plaintiff failed to honour his contractual obligations to Robert Waterhouse;

(1) That the Plaintiff conspired with Haitana to falsely allege that the First Defendant had offered Haitana large sums of money so that Haitana would give false evidence in proceedings relating to the Fine Cotton Affair."

The first twelve of the first defendant's nineteen s16 imputations were the same as the plaintiff's imputations (a) to (1). The first defendant's remaining seven imputations were:

"(xiii) That the Plaintiff is financially dishonest;

(xvii) That the Plaintiff is a slanderer and scandal monger;

(xviii) That the Plaintiff is a self-confessed liar;

(xix) That the Plaintiff has broken the rules of racing."

Having set out the nineteen imputations relied on, para5 continued:

"(c) Each of the contextual imputations relates to a matter of public interest. (d) Each of the contextual imputations is a matter of substantial truth.

(e) By reason that all or each of the contextual imputations are or is a matter of substantial truth, none of the imputations complained of by the Plaintiff further injures the reputation of the Plaintiff."

Before Ireland J the plaintiff, Mr Harris, objected to the first defendant's further seven imputations on the ground that they were defective in form, were not capable of conveying a defamatory meaning, and were not all different in substance among themselves or different in substance from the plaintiff's imputations. Ireland J came to the conclusion that there was no defect in form or capacity. As to the alleged lack of difference in substance between imputations, he referred to and relied on what had been said by David Hunt J in Hepburn v TCN Channel 9 Pty Ltd (1984) 1 NSWLR 386 to the effect that (1) neither the

Defamation Act 1974 nor the Rules of Court require a defendant's contextual imputations to differ in substance one from the other but (2) nevertheless the provisions of Ptl5 R26(1)(b) were still applicable, and empowered the court to strike out pleadings having a tendency to cause prejudice, embarrassment or delay. Ireland J therefore accepted that even if the plaintiffs complaints about lack of substantial difference between imputations were correct, he could not strike them out on that formal basis alone but only on the basis of transgression against the provisions of Ptl5 R26(1)(b). He added that the first defendant's imputations (xiii), (xiv) and (xv) did sufficiently differ in substance in any event.

Ireland J nevertheless struck out the first defendant's s16 defence, giving the following reasons:

"When one looks at the contextual imputations and assumes, for the moment, proper particularisation of them projected upon the improper particulars hitherto supplied, one can but come to the conclusion that what the first defendant is seeking to do by pleading and justifying his additional contextual imputations is really no more than justify the imputations pleaded by the plaintiff... the essence of the justification of the additional imputations severally and in combination is to prove no more than what the first defendant would prove in relation to the plaintiffs pleaded imputations....

... In my view, this is a case where there would be no rational basis for the jury to consider issues under s16. The plaintiff's imputations which the defendant has chosen to justify clearly cover that field which the defendant seeks to embrace by adding his own seven additional meanings.... This, to my mind, is clearly a case where the disallowance of these contextual imputations would bring about the exclusion of a large number of unnecessary issues from the trial with enormous consequential saving of time and cost.

He then directed that para5 be struck out under Ptl5 R26(1)(b).

"as, in its form, and as particularised (so insufficiently) it can be characterised as only having a tendency to cause prejudice, embarrassment or delay."

The first defendant made a number of submissions on appeal. The principal one began by pointing out that Ireland J explicitly struck out the whole s16 defence on the basis that the first defendant's imputations were not defective in form and on the assumption that proper particulars of them could be furnished (although he was of opinion that many of the already furnished particulars should not be allowed and he struck them out). The submission was then made that the reasons given by Ireland J for his conclusion appeared to be in conflict with his earlier statement that imputations (xiii), (xiv) and (xv), at least, were different in substance from the plaintiff's twelve imputations on which he approached the s16 defence, and, it was said, his conclusions simply did not follow from his premises.

Reading his Honour's reasons literally this seems to me to be a sound argument. Dealing with the matter in his Honour's terms, if some of the first defendant's imputations were different in substance from the plaintiff's twelve, then in justifying those imputations the first defendant would necessarily be proving more than he would prove in justifying the imputations relied on by the plaintiff and covering a wider field than that which would be relevant in support of his s15 defence.

The respondent plaintiff sought to support Ireland J's decision in two related ways. First, it was submitted, that contrary to the understanding of his Honour's reasons that I have indicated above, a proper reading shows that his Honour took two steps: (a) the first defendant was not allowed, on the true interpretation of

s16, to "plead back" against the plaintiff the twelve imputations relied on by the plaintiff; (b) once the twelve imputations relied on by the plaintiff were put to one side, and assuming the first defendant succeeded in justifying his remaining seven imputations, the jury, acting rationally, could not conclude that those of the plaintiff's imputations found by them to be defamatory did not further injure the reputation of the plaintiff. Second, if this reading of his Honour's reasons were not available, he should in any event have held that step (a) was correct, and step (b) should then have followed.

Both submissions involve the proposition which counsel put in this form: "S16 necessarily requires that the imputations pleaded as contextual must differ in substance from those pleaded by the plaintiff'. Counsel made it clear that by this he meant that the difference he spoke of must be between all of the imputations relied on by the plaintiff on the one hand, and all of those pleaded by the defendant under s16 on the other.

This proposition contradicts what David Hunt J has said on a number of occasions, as for example in Allen v John Fairfax and Sons Ltd (unreported, 2 December 1988):

"A defendant is always entitled to adopt any of the plaintiff's imputations as a contextual imputation and to plead a defence of contextual truth based upon that imputation to the cause of action based upon another of the plaintiff's imputations.

Similarly, the defendant is always entitled to adopt any of the plaintiff's imputations as one or more of its group of contextual imputations where it relies upon the combined effect of the truth of that group of imputations as so affecting the plaintiffs reputation that the plaintiffs imputation to which that group of contextual imputations is pleaded did not further injure that reputation."

See also Hepburn v TCN Channel 9 Pty Ltd (1984) 1 NSWLR 386, esp at 396-398 and 404-405.

In view of the terms of s9 of the Act and this court's interpretation of them in Petritsis v Hellenic Herald Pty Ltd (1978) 2 NSWLR 174, the observations of David Hunt J concerning the "pleading back" by a defendant of contextual imputations against an imputation relied on by the plaintiff of other imputations relied on by the plaintiff are in my opinion clearly right.

"(2) Where a person published any matter to any recipient and by means of that publication makes an imputation defamatory of another person, the person defamed has, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient:

(a) in addition to any cause of action which the person defamed may have against the published for the publication of that matter to that recipient in respect of any other defamatory imputation made by means of that publication; and

(b) in addition to any cause of action which the person defamed may have against that publisher for any publication of that matter to any other recipient.

(3) Where a person has brought proceedings (whether in New South Wales or elsewhere) for defamation against any person in respect of the publication of any matter, that person shall not bring further proceedings for defamation against the same defendant in respect of the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought.

(5) Notwithstanding subs(2), where proceedings for defamation in respect of the publication of any matter are tried before a jury, the jury shall, unless the court otherwise directs:

(a) give a single verdict in respect of all the causes of action on which the plaintiff relied; and

(b) if they find for the plaintiff as to more than one cause of action, assess damages in a single sum."

These subsections reflect the solution recommended by the Law Reform Commission (and adopted in the Act) to the problem of multiplicity of proceedings discussed in the Law Reform Commission Report (para36-para56). In para50 the Law Reform Commission said:

"We think that the solution most likely to promote an analysis which will lead to just results, is to provide that a person defamed has a separate cause of action for each defamatory imputation published of him and for each person to whom the publication is made."

In paraS1 the Law Reform Commission recognised the approach recommended in para50 might cause problems but dealt with these and related problems by preventing a plaintiff bringing a second action on the same defamatory matter except with the leave of the court (para52 and para53) and recommending subs(5). As to this last provision it was said, in paraS5 and paraS6:

"55. Another problem posed by a multiplicity of causes of action is that, theoretically at least, a verdict should be taken separately on each cause of action on which the plaintiff relies. This has not been carried to its ultimate conclusion by requiring, for example, a separate verdict in respect of each person to whom a libel is published, but it has been said that separate verdicts ought to be taken where a plaintiff complains of the natural and ordinary meaning of the matter published and also of a true innuendo (Lewis v Daily Telegraph Ltd [1964] 1 WLR 988, at 992), however, Denning MR said that when it comes to summing up to the jury the judge could put the technicalities on one side. The judge was not bound to ask the jury to find separate verdicts in respect of separate causes of action, and make separate awards of damages. He could, if he thought fit, ask them to find one verdict and make one award of damages.

56. We would go a step further: we think that the general rule ought to be that there should be a single verdict and single award of damages in respect of all publications by the one defendant of, and imputations made by, the same report, article, speech or other matter. The trial judge should, however, have power to take separate verdicts and separate awards of damages: cases for exercise of the power would include cases where a true innuendo would be inferred by some only of the recipients and cases where there is a defence of privilege as to some only of the recipients."

The last sentence in para56 seems to go on the footing that the judge in an appropriate case could take separate verdicts in regard to each imputation alleged by the plaintiff. This is consistent only with the idea that each such imputation is a separate cause of action in the usual sense of that term. The necessary power appears to be contained in s16(5) by the qualification to the general direction in para(a) of that subsection to the effect that the court by a direction "otherwise" may depart from the ordinary requirement that a single verdict be given in respect of all the causes of action (which in the context means imputations) on which the plaintiff relies.

In my opinion the position therefore is that in the present case where the plaintiff relies on twelve imputations, and thus twelve causes of action, the defendant may plead a s16 defence to each cause of action relying on whatever contextual imputations the defendant undertakes to justify. The only restriction of substance on imputations available from the material complained of (the publication) will be that an imputation relied on by a plaintiff as a cause of action can not be relied on by the defendant in a s16 defence to that cause of action. It would follow as a matter of logic from this approach that separate defences should be pleaded to each imputation (cause of action). However, it will often be more convenient for all the contextual imputations to be included in the one paragraph, as here, so long as it is understood that the paragraph must be read distributively in regard to each imputation relied on by the plaintiff as a cause of action, and that the defendant cannot plead back the plaintiff's imputation in a s16 defence to THAT imputation.

This conclusion means that I can not accept either version of the respondent/plaintiff's principal argument.

Two other submissions were put for the respondent/plaintiff which I should mention.

One was that to permit the first defendant to rely on nineteen contextual imputations in answer to twelve imputations (more strictly, eighteen contextual imputations in answer to each of twelve imputations, each set of eighteen being different from every other set of eighteen) would create such intolerable complexity for a jury that it could not be permitted to happen. It was said that this would be a reason for striking out the defence under Pt15 R26(1)(b), that is, in the words of para(b), because of the defence's "tendency to cause prejudice, embarrassment or delay" at the trial.

However, I do not think R26(1)(b) can be used to strike out a pleading which raises a defence in proper form and, on the facts, arguably available to a defendant. To the extent that there is anything in the complaint of the respondent/plaintiff that the first defendant's s16 defence will cause complication and take up considerable time at a trial of Mr Harris's case, that will be the result, not of improper pleading, which R26(1)(b) is directed at, but of the combination in the present case of a very lengthy publication containing much arguably defamatory material, the operation of s9, and the availability to a defendant of defences under s16.

Nor would I think that defences under s16 are likely to be lightly undertaken by a defendant. For a defendant to justify a number of contextual imputations may be a difficult matter, and failure may be costly. Further, although it has for a long time been accepted that it would be a rare case in which the comparative exercise required by a s16 defence would be taken away from a jury (see Jackson v John Fairfax and Sons Ltd [1981] 1 NWLR 36), if it becomes clear at a pre-trial stage that a s16 defence without any real prospect of success has been pleaded, apparently for no reason other than to put before the jury evidence intended to mitigate damages which the defendant would not otherwise be entitled to lead, then the court should accede to a plaintiff's re-trial application that such defence be removed from the issues for trial: see NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd (David Hunt J, unreported, 14 July 1989). (In my opinion the present is not this type of case.)

A practical step that may be taken in appropriate cases towards reducing the sort of complexity referred to by the respondent/plaintiff in the present case, is an adaptation of the procedure mentioned by Clarke JA in Radio 2UE Sydney Pty

Ltd v Parker [1992] 29 NWLR 448 at 473. Pursuant to this the first stage of the trial would be to get from the jury their findings on the questions which of the imputations relied on by the plaintiff were conveyed by the material complained of and were defamatory of the plaintiff and on the same two questions in regard to the contextual imputations relied on by the defendant. The next stage of the trial could then proceed in the light of the only imputations then relevant for the purposes of the trial. Incidentally, the mere statement of this consideration emphasises the difficulty faced by a court at a pre-trial stage in deciding whether or not a s16 defence should be allowed to go to a jury. In a case where the contextual imputations relied on by the defendant are proper in form and where it is being assumed that it is possible for them to be properly particularised (which were the bases upon which Ireland J proceeded, a matter of critical importance to this appeal) I find it very difficult to see how a s16 defence could ever not be left to the jury.

Notwithstanding the various controls which would limit the placing by defendants of complicated s16 defences before juries, it seems clear, and this case may well show, that a s16 defence involving the consideration by a jury of twelve imputations relied on by a plaintiff and nineteen contextual imputations by a defendant may be one of very considerable complication. However, in my view, such cases as actually come about of this type will do so because of the terms of s16 itself and of the purposes which it was intended to serve.

Another submission put by the respondent/plaintiff in various ways was that Ireland J's decision to strike out the s16 defence should be looked at in light of his Honour's orders, concerning particulars, which were not the subject of appeal by the first defendant. It was submitted that his Honour was really directing his attention when dealing with the s16 defence to the situation as it was in light of his having struck out a good many of the particulars relied upon by the first defendant in regard to the s15 defence which had necessary consequential effects on the practical situation concerning the s16 defence.

However, in light of his Honour's very explicit statement that he was approaching the s16 defence on the assumption of proper particularisation of the contextual imputations, I do not think that this line of argument can be accepted.

My conclusion is therefore that the first defendant has made good his appeal against the striking out of his s16 defence. The only particular order sought in the notice of appeal was an order that the appellant be entitled to plead all of the imputations in paraS of his defence. In argument, there was discussion of matters going more widely than to the order sought, but the principal issue was whether the basis on which his Honour struck out the s16 defence could be supported, and as part of this, the question whether a defendant could "plead back" contextual imputations in the way discussed in this opinion. On those matters the first defendant is, in my opinion, entitled to succeed. In my opinion Ireland J's order that paraS of the first defendant's defence be struck out should be set aside and that paragraph should be restored to the first defendant's Defence. I would wish to make it clear however, that these orders are without prejudice to the respondent/plaintiff's right to make further application, if he be so advised, concerning the form of the first defendant's para5 and particulars. On the s16 point, some questions concerning these matters were assumed by Ireland J in the first defendant's favour, without their actually being decided. The respondent/plaintiff should not be precluded from having decided at first instance such of those questions as he may be advised to pursue. Such decision however

should be made conformably with the matters decided in this court concerning the proper construction and operation of s16.

2. O.2 of Ireland J's orders of 2 June 1994 set aside; para5 of the further amended defence restored.

3. O.3 varied, by adding to it 'except as to so much of the application before Ireland J as related to the striking out of paraS of the further amended defence, in regard to which the plaintiff is to pay the first defendant's costs; these costs to be set off

4. Respondent/plaintiff to pay the first defendant's costs of the appeal.

3. Plaintiff to pay defendant's costs in the interlocutory proceedings so far as they relate to striking out para5.

4. Respondent/plaintiff to pay defendant's costs of the appeal.

Counsel for the respondent: M EINFELD QC / DR CAMPBELL Solicitors for the respondent: VEREKERS