Plaintiff v Defendants

Supreme Court of Victoria|2006-11-06|Before: Williams J

Defamation - Libel - Practice and procedure - Defence of fair comment - "Rolled up" plea - Application to strike out defence - Whether compliance with order to specify substance of alleged comment -Whether alleged comment or statement of fact - Whether comment could meet the libel - Whether comment expressed on matter of public interest - Whether public interest in question of entitlement to rely on a defence of provocation to charge of murder and role of legal practitioners - Whether plaintiff entitled to particulars of comment or facts upon which comment based.

2 In the statement of claim in the writ, the plaintiff alleged that the book, in its ordinary and natural meaning or, alternatively, by way of innuendo, conveyed the defamatory meanings that:

"(a) the plaintiff had manufactured a defence of provocation for James Ramage thereby perverting the course of justice;

(b) the plaintiff had, in combination with James Ramage and/or Stephen Pica, agreed to manufacture a defence of provocation for James Ramage thereby perverting the course of justice."

3 The true innuendo was alleged to arise for readers of the book with a knowledge of Victorian law relating both to provocation as a defence to a charge of wilful murder and to the crime of perverting the course of justice.

4 In their defence filed on 6 December 2005, the defendants denied that the book conveyed the alleged meanings or was capable of doing so. In the alternative, they raised a defence of fair comment in the following terms:-

"11. They say further that, if the book was defamatory of the Plaintiff (which is denied), then in so far as it consisted of statements of fact, those statements are true in substance and in fact and, in so far as it consisted of expressions of opinion, those expressions are fair comment on a matter of public interest, namely whether James Ramage should have been entitled to rely on a defence of provocation to the charge of wilful murder brought against him."

5 The plaintiff issued a summons dated 28 July 2006, seeking an order that the "rolled up" plea in para 11 of the defence be struck out. Alternatively, he sought particulars of the substance of the comment referred to in the plea. In addition, he sought leave to amend para 7 of the statement of claim, to add two further allegations as to the meaning of the book. He also sought leave to amend the particulars of the extrinsic facts known to readers of the book for whom the alleged innuendo would arise.

6 The application was made to Kellam J on 6 September 2006. His Honour gave judgment in the application on 20 September 2006. Kellam J gave the plaintiffs leave to file an amended statement of claim. He did not strike out the rolled up plea. However, he ordered the defendants to file and serve an amended defence containing "particulars specifying the fair comment pleaded in para 11 of the defence."

7 It is convenient now to set out the relevant parts of the amended statement of claim and the amended defence which were subsequently filed.

8 The amended statement of claim was filed on 22 September 2006 and, relevantly, now reads:

"7 In its ordinary and natural meaning, the book meant and was understood to mean that:

(a) The Plaintiff had manufactured a defence of provocation for James Ramage thereby perverting the course of justice;

(b) The Plaintiff had, in combination with James Ramage and/or Stephen Pica, agreed to manufacture a defence of provocation for James Ramage thereby perverting the course of justice;

(c) The Plaintiff had committed a serious breach of barristers' ethics;

(d) The Plaintiff had committed an act of professional misconduct.

Further or alternatively, by way of innuendo arising for readers of the book with knowledge of the facts set out below, namely the class of persons comprising practising lawyers, judges, members of the Victoria Police Force, legal academics, members of law reform bodies, members and officers of professional legal associations, and persons engaged in law enforcement and the application of the criminal law, the book conveyed the defamatory meanings set out in paragraph 7 above.

PARTICULARS OF THE EXTRINSIC FACTS

The law of the State of Victoria relating to:

(a) provocation as a defence to a charge of wilful murder; and

(b) the crime of perverting the course of justice;

(c) the Rules of Conduct of the Victorian Bar, more specifically Rules 4, 16, 19, 20, 29, 46 and 149;

(d) s 147 of the Legal Practice Act 1996."

9 On 4 October 2006, the defendants filed an amended defence. They repeated the denials in the original defence of the allegations that they had defamed the plaintiff in the book and went on to allege a defence of fair comment, in an amended para 11, in the following form:

"11. They say further that, if the book was defamatory of the plaintiff (which is denied), then in so far as it consisted of statements of fact, those statements are true in substance and in fact and, in so far as it consisted of expressions of opinion, those expressions are fair comment on a matter of public interest, namely whether James Ramage should have been entitled to rely on a defence of provocation to the charge of wilful murder brought against him and the role played by the legal practitioners who communicated with Ramage shortly before he turned himself into the Police. The substance of the comment was that:

(i) there is a serious question to be investigated as to whether the Plaintiff played any role in manufacturing the defence of provocation on which James Ramage relied at his trial for wilful murder of his wife Julie;

(ii) there is a serious question to be investigated as to whether the Plaintiff had committed a serious breach of barristers' ethics or an act of professional misconduct."

10 Kellam J adopted the course taken by Ashley J in Anderson v Nationwide News Pty Ltd[1] in ordering that the defendant provide particulars of the substance of the alleged comment. In the course of his reasoning, Kellam J noted that Gillard J had taken the view in Li v Herald and Weekly Times Limited[2] that, whilst, ordinarily, the comment relied upon in a fair comment defence would be self- evident, there might be cases where facts and opinion were so intermingled that, in order to clarify the issues, it would be necessary to require a defendant to identify the substance of a fair comment not revealed by the pleadings[3]. In Kellam J's view, the order for specification of the substance of the comment was warranted in this case[4].

11 The plaintiff put forward a number of reasons which, in his submission, warranted an order now sought that the pleading in para 11 be struck out.

Initial failure to properly plead fair comment defence

12 I note, at the outset, that I am not persuaded by his argument that the pleading should be struck out because the original pleading of the comment, upon which the fair comment defence is based, failed to meet his pleaded imputations.

13 It would appear that Kellam J accepted the defendants' submission that the challenged part of para 11 of the original statement of claim described the alleged matter of public interest to which the comment related, rather than the substance of the comment[5]. There is nothing in the form of the amended para 11 to suggest otherwise.

Initial refusal to particularise the substance of the comment

14 Nor am I satisfied that the allegations should be struck out because the defendants refused to supply particulars of the substance of the comment, before they were ordered to do so. Even if such a course were otherwise appropriate, it is clear from the authorities that there was no certainty as to the circumstances in which this Court might order any identification of the substance of an alleged fair comment. Gillard J in Li had recently stated his view that there is no general rule that such specification is required[6]. Indeed, Kellam J agreed with his Honour's view that, usually, the comment would be self-evident[7]. As a result, and in light of the historical approach of the courts which have declined to order particularisation of the comment founding a fair comment defence, I consider that the defendants were justified in the stance they took; see: Aga Khan v Times Publishing Co[8] ; Watt v The Herald & Weekly Times Ltd[9].

Have the defendants complied with Kellam J's order?

15 The plaintiff further contends that the defendants have not complied with his Honour's order and that the substance of the defence has not been sufficiently identified. Counsel for the plaintiff contend that the particulars give the meanings of the alleged comment, as opposed to its substance. They say that the particulars provided do not inform them of the case they have to meet.

16 Counsel for the plaintiff go on to argue that Kellam J's order required the defendants to provide particulars of the alleged comment : both as to where it was to be found in the book and as to the facts upon which it was said to be based.

The distinction between "meaning" and" substance"

17 The plaintiff complains that the defendants have given particulars of meanings of the book, as opposed to the substance of the comment.

18 In response, counsel for the defendants rely upon what was said by Ashley J in Anderson on the point :

"How should the substance of alleged comment be specified? Bearing in mind the fact that the object of pleading and particulars is to enlighten the reader, and not to confuse or obscure, I think that no particular form should be required, but simply that the substance of what is said to be comment should be made clear. It will not be enough to specify the matter of public interest to which the alleged comment is said to relate.

In my opinion, further, it is inappropriate for a plaintiff to seek ... particulars of the meaning(s) in which the defendant alleges the [publication] was fair comment. In a practical sense, the substance of comment will presumably coincide with or relate closely to the meaning(s) assigned to the publication by the defendant. But what needs to be specified is simply the substance of the alleged comment. Once that is done, the connection or disconnection between the comment and the meaning(s) assigned to the article by the plaintiff ... should be very clear"[10].

19 If I have understood the plaintiff correctly in this regard, I see no basis for striking out the defence in para 11 on the ground that the description given of the substance of the comment may coincide with the statement of the meanings ultimately ascribed to the book, before the jury, by the defendants.

Do the particulars under paragraph 11 disclose the case the plaintiff must meet ?

20 The plaintiff argues that the defendants have failed to comply with Kellam J's order because they have failed to indicate, in their description of the substance of the comment, such matters as the identity of the person who is to ask the question and that of the person who should investigate the question. He claims not to know what case he must meet at trial.

21 The defendants respond by referring to the plaintiff's allegations as to the defamatory meanings conveyed by the book, in para 7 of the amended statement of claim. They argue that their description of the substance of the alleged comment closely follows the form of those meanings. They say that the particulars describe the substance of comments whose subjects are imputations which are less serious than those alleged by the plaintiff, but not substantially different from them.

22 Counsel for the defendants cite the levels of imputation of crime set out in a note to the text of Gatley on Libel and Slander (10th ed, 2004) where the learned authors observe that:

"It may be that there are no less than four successive, descending layers of possible defamatory imputation: guilt, reasonable suspicion of guilt, grounds for investigation and the fact of investigation."[11]

23 Paragraph 7 of the amended statement of claim alleges, in effect, that the book conveys the meanings that the plaintiff has committed a criminal or ethical offence or offences. I am not persuaded that the particulars in para 11 of the amended defence which, in effect, allege that there are serious questions to be investigated as to whether he has done so, fail to disclose the case which the plaintiff will have to meet.

24 Further, in my view, that substance is sufficiently specified without the identification of any individual or body who should carry out any investigation. The submission as to the identification of the person who should ask any question would seem to refer to the same issue, in so far as I understand it.

25 The attack on the particulars given of the substance of the comment amounts to an allegation that the amended para 11 should be struck out because the defendants have failed to give particulars of the comment or of the facts upon which it is based. I will return to that argument and its alternative, namely, that even if the pleading is not to be struck out, further particulars should be ordered.

26 I will now consider the plaintiff's alternative objection that, even if its substance has been sufficiently specified, the comment could not be characterised as a comment, as opposed to an allegation of fact

Could the alleged meanings be comment rather than allegations of fact?

27 Senior counsel for the plaintiff submits that the particulars provided indicate that the meanings for which the defendants contend are statements of fact which could not be properly found to be comment by the jury. He argues that the pleading in para 11 should be struck out, as a result.

28 The plaintiff's written submissions refer, in this regard, to the summary, in English cases, of the principles relating to a defence of justification which depends upon establishing "reasonable grounds to suspect" criminal conduct[12]. The statement of the relevant law relates to the evidence which may be adduced in such cases and includes both the so-called "repetition" and "conduct" rules.

29 Counsel for the plaintiff cite, in particular, the discussion of the relevant principles by Eady J in Hamilton & Anor v Clifford[13] where the defendant had contended that alleged defamatory words meant that there were "reasonable grounds to suspect" the plaintiffs of criminal behaviour.

30 The plaintiff argues that, in this case, the defendants have pleaded the "substance" of comments which could not be left to the jury as possible comments. Counsel for the plaintiff submit that the particulars in para 11 of the amended defence indicate that the defendants contend that the book means that "there are reasonable grounds to investigate" whether the plaintiff has engaged in the forms of conduct in question. They maintain that, like the allegation in Hamilton & Anor v Clifford, these are allegations of fact, capable of objective verification, and could not properly be characterised as comment. Counsel for the plaintiff submit that the statement that there is a serious question to be investigated by a responsible body implies that there are applicable objective criteria by reference to which the statement can be verified.

31 Counsel for the plaintiff refer to the passage in Gatley quoted above[14] which sets out the descending levels of imputations of crime which might be regarded as permissible defamatory meanings to be established by the plaintiff under the English decisions. They submit, generally, that if the first, second and fourth meanings described are, as they contend, allegations of fact, the third should not be able to be regarded as comment.

32 Counsel for the defendants respond, generally, that they have particularised the substance of a comment which falls within the description of one which may be relied upon in a fair comment defence: as a "deduction, inference, conclusion, criticism, judgment, remark, [or] observation"[15]. They submit that the "repetition rule" is irrelevant in this case.

33 The defendants do not contest the plaintiff's propositions in relation to an allegation as to the existence of "reasonable grounds to suspect". Nevertheless, they respond that the relevant principles do not apply to the meanings of the book which, they would argue, are the subject of the comments referred to in the particulars. They are not of a type which are objectively verifiable.

34 In relation to the cases cited by the plaintiff, they observe that any authority has to be considered in light of its own facts. The facts of Hamilton & Anor v Clifford, in their submission, involve very serious allegations, found to be factual, and are distinguishable from those, the substance of which has been particularised in para 11.

35 The distinctions between what are described in the cases as "levels" of defamatory imputations of criminal conduct, upon which a plaintiff could succeed, have been considered in the English decisions relied upon by the plaintiff : in the context of the issue as to the character of the evidence required to make out a justification defence in a particular case.

36 It would appear that the Court of Appeal has recognised a relevant distinction between the levels which are, in effect, the equivalents of the second and third layers of imputations of crime described by Gatley; see: Musa King v Telegraph Group Ltd[16]; and the discussion in the supplement to the 10th edition of Gatley[17]. That distinction relates to the use of evidence relevant to subjective views and judgments (permissible in relation to a level 3 meaning), as opposed to that relevant to the objectively ascertainable reasonableness of conduct the subject of the alleged comment (required for a level 2, "reasonable grounds to suspect" type of meaning).

37 In my view, the substance of the alleged comment in the particulars in para 11 appears able to be equated with the third level of meaning described by Gatley, rather than the objectively verifiable second level.

38 I note that I am not dissuaded from this view by the decision of the Court in Gutnick v Dow Jones & Co Inc (No 4)[18], to which I was referred by counsel for the plaintiff after I had reserved my decision in relation to this application.

39 In Gutnick, Bongiorno J characterised imputations, expressed in the different terms of there being a "reason to investigate" whether a particular state of affairs existed or whether certain conduct had taken place, as imputations of "reasonable suspicion"[19]. His Honour held that they were, accordingly, able to be verified objectively and, on the basis of the Court of Appeal's decision in David Syme Co Ltd v Hore-Lacy[20], not permissible variations of the imputations of guilt capable of arising on the plaintiff's pleading.

40 Further, at this stage of the proceeding, the defendants have provided the particulars in compliance with an order that they specify the substance of the comments, as opposed to provide particulars of the meanings of the book which they might seek to put to the jury as the subject of fair comment based on true facts stated in the book. Notwithstanding that, as Ashley J observed in Anderson[21], it may be presumed that there will be a coincidence or close relationship between the substance of a comment and the meaning of a publication ultimately put to the jury by a defendant as the subject of fair comment, it remains the case that the full statement of the meanings alleged by the defendants is not presently before the Court. The precise terms in which the defendants will seek to put the alleged comment to the jury are yet to be revealed.

41 As the pleadings stand, I am not persuaded that the meanings which the defendants might, ultimately, seek to put before the jury as the subject of comment, considered in the context of the evidence as to the facts upon which they are said to be based, could not be expressed as comment, rather than fact, in light of the authorities to which I have been referred.

Does the comment meet the sting of the alleged libel ?

42 For the defence to succeed the comment would have to meet the sting of a defamatory meaning, found by the jury, upon which the plaintiff could rely in the context of his pleaded case[22].

43 The plaintiff urges me to adopt the course taken by Bongiorno J in Anderson v Nationwide News (No 2)[23] and strike out the pleading in para 11, on the basis that the particulars provided of the substance of the comment make it clear that the comment could not meet the sting of the alleged libel or any variant of the pleaded libel upon which the plaintiff could succeed.

44 The defendants do not dispute the plaintiff's assertions with regard to the relevant legal principles. However, they contest the plaintiff's contention that the substance of the comment specified in the particulars in para 11 is substantially different from the pleaded defamatory imputations in para 7 of the amended statement of claim. They submit that the particulars do not indicate that they will seek to persuade the jury to conclude that the book conveyed a meaning upon which the plaintiff could not properly rely.

45 In David Syme & Co Ltd v Hore-Lacy[24], Charles JA considered the issue as to whether or not a plaintiff who had pleaded a specific false innuendo would be able to succeed at trial on another meaning not substantially different or more injurious. Having referred to passages from the judgments of the members of the High Court in Chakravarti v Advertiser Newspapers Ltd[25] his Honour relevantly stated :

"From these passages it would seem that all members of the court in Chakravarti would take the view that a plaintiff could, after pleading specific meanings by way of false innuendo, succeed at trial on a meaning other than the meanings pleaded, provided that the meaning was not substantially different from or more injurious than the meanings pleaded, and that the defendant was not in all the circumstances unfairly prejudiced by allowing that meaning to go to the jury. Whether the meaning was substantially different would presumably be tested by asking whether the defendant would have been entitled to plead a different issue, adduce different evidence or conduct the case on a different basis (Brennan and McHugh JJ in Chakravarti(at [19]) or possibly whether the justification would be substantially different (Gaudron and Gummow JJ (at [52])."[26]

46 I am not persuaded by the plaintiff's argument to the effect that, on its face, an allegation that a person engaged in certain conduct is substantially different, in the requisite sense, from an allegation that there is a serious question to be investigated as to whether that conduct took place. Indeed, the statement of the substance of the alleged comment might be described as the equivalent of the statement of the third layer of imputation of crime described by Gatley[27].

47 In Nationwide News Pty Ltd v Moodie[28] the Western Australian Court of Appeal held that pleaded imputations that the plaintiff acted "as a mafioso", used "mafia tactics" and was a "dishonest, ruthless, mafioso style executive" comprehended less serious allegations that he was "dictatorial and secretive in his management style". The defendants cite this as an example of the flexible approach the Court should adopt in relation to the characterisation of a meaning as less serious and not substantially different from another. They urge the Court to consider the present allegations as significantly more similar, by comparison.

48 Senior counsel for the plaintiff refers the Court to the High Court's decision in Mirror Newspapers Ltd v Harrison[29]. He relies upon the court's finding that a report of arrest and charging did not contain an imputation of guilt or probable guilt. I am not assisted by the reference. The question before me is different and concerns the imputations comprehended by the statement that an offence has been committed.

49 Clearly, each case will turn on its own facts. I am not persuaded that, if the defendants were seeking to justify a less serious imputation, expressed in the terms of their particulars, they would be entitled to plead a different issue, rely on different evidence or conduct the case differently. I am not satisfied that it could be said that the justification would be substantially different. It seems to me likely that the defendants would seek to rely upon the same evidence, whether they were seeking to justify the meanings pleaded by the plaintiff or meanings the substance of which is described in the particulars in para 11.

50 It follows that the statement of the substance of the comment in the defendants' pleading does not satisfy me that the comment which they will seek to put before the jury could not meet the sting of a defamatory imputation upon which the plaintiff could rely.

51 The plaintiff argues that, even if the defendants have persuaded the Court to reject his contentions in relation to other elements of the defendants' fair comment defence, their pleading should be struck out because the alleged comment is not on a matter of public interest.

52 Citing the Western Australian decision in Anderson v Ah Kit[30] he submits that the fact that a matter has attracted media attention does not, without more, make it a matter of public interest.

53 The plaintiff argues for a restricted interpretation of the requirement in accordance with the approach of the High Court in Bellino v ABC[31]. Senior counsel cited a passage from the judgment of the court in Bellino where Dawson, McHugh and Gummow JJ state that a fair comment defence relates to an attack on the work of an individual, rather than a personal attack.[32]

54 The plaintiff refers to passages from the judgments of Brennan CJ[33] and Gaudron J[34] as well as the majority[35]. Brennan and Gaudron JJ appear to support a wide definition of the public interest for the purposes of the fair comment defence, in the passages cited. The plaintiff contends that the majority should be taken to limit matters of public interest in a way that excludes the defence in relation to the matters upon which comment is made concerning him.

55 However, the majority had earlier recognised that :

"... under the common law any member of the public could comment on the conduct of the lawyers participating in a criminal or civil trial (Woodgate v Ridout [1865] EngR 89; (1865) 4 F & F 202 ...), the conduct of a judge or magistrate in dismissing or upholding a claim (Hibbins v Lee [1864] EngR 16; (1864) 4 F & F 243 ...) or the evidence of witnesses (_Hedley v Barlow (1865)_4 F & F 224 ...)."[36]

56 In my view, the majority judgment supports the opinion that the description of the substance of the comment indicates that it may relate to the matter of public interest of the administration of justice in respect of the trial of James Ramage. The plaintiff is a member of the ranks of senior counsel in the State of Victoria who practises in the criminal jurisdiction. His conduct in relation to Mr Ramage's use of the defence of provocation and the issue as to whether the course of justice was perverted as a result of his conduct, as well as its ethical ramifications, are properly described as matters of public interest.

Should the defendants provide particulars of the location of the comment in the book or of the facts upon which the comment is based?

57 I am not persuaded by the argument that the order required the defendants to provide particulars as to the places in the book at which the alleged comment is made or of the facts upon which the alleged comment was said to be based.

58 Kellam J followed the course adopted by Ashley J in Anderson when ordering that the substance of the comment be specified.

59 In Anderson, Ashley J expressed the view that the identification of the particulars of the substance of the comment did not involve the identification of the particular words of the publication said to constitute the comment[37].

60 Citing Hedigan J's refusal of an application for particulars of the facts constituting the basis of a fair comment defence in Watt v The Herald & Weekly Times Ltd[38], Ashley J also stated his view that a requirement to particularise the facts contained in the publication upon which the comment was based would involve the particularisation of the substance of the evidence and the argument to be relied upon[39].

61 Counsel for the plaintiff urge me not to follow the Victorian cases but, rather to adopt the course taken by Higgins J in McLachlan v Rural Press Ltd (No 2)[40] and order the particulars sought. I note, however, that Hedigan J in Watt considered the decision in McLachlan, but declined to follow it. Hedigan J reviewed the relevant authorities and noted the practice of superior courts not to order particulars in the circumstances. His Honour refused to make a requested order for particulars, referring to precedent, the absence of alteration to the rules and his own experience in the law. I also note Ashley J's view that it was significant to Hedigan J's decision that Watt (like this case) involved a rolled-up plea, where the defendant is confined to the facts in the publication.

62 In my view, support for the refusal of the particulars sought is also to be found in Gillard J's reasoning in Li[41], where his Honour declined to order particulars even of the substance of comment, once again in the case of a rolled-up plea. It also remains the case in Victoria that the rules of civil procedure have not been amended to provide for such particularisation[42].

63 In light of the authorities and the established practice of the Court, I am satisfied that I should refuse to order the defendants to supply particulars either of the location in the book of the alleged comments or of the true facts upon which the alleged comments are said to be based. It follows that I do not consider the defendants to have failed to comply with the order of Kellam J by failing to provide any such particulars to date.

64 The plaintiff's applications for orders striking out para 11 of the amended defence and for the provision of further particulars should be refused.

[3] See: Li v Herald and Weekly Times Limited [2005] VSC 304, [60].

[5] See: [2006] VSC 341R, [36].

[6] See: Li v Herald and Weekly Times Limited [2005] VSC 304, [59].

[12] See: Musa King v Telegraph Group (2004) EWCA Civ 613, [22] per Brooke LJ ; Miller v Associated Newspapers Ltd (2005) EWHC 21, [33] per Eady J.

[15] Gatley on Libel and Slander (10th ed, 2004), [12.1].

[16] [2004] EWCA Civ 613, [31]- [33] per Brooke LJ.

[17] (First Supplement to the Tenth Edition) para [11.6] para [27.7] and note 60 to para [27.10].

[22] Li v Herald & Weekly Times [2005] VSC 304, [52] per Gillard J; see in relation to meanings upon which the plaintiff might rely David Syme & Co Ltd and Anor v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667. [17] per Ormiston JA, [52] per Charles JA and [69] per Callaway JA.

[41] [2005] VSC 304, [43]-[59].

[42] See: Williams_, Civil Procedure Victoria_ commentary at [1 13.11.160].

At a glance

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Judgment (122 paragraphs)

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Cases Cited (10)