Plaintiff v First Defendant

Plaintiff v First Defendant - [2009] VSC 145 - VSC 2009 case summary — Zoe

[32]

22 The starting point of Mr Wheelahan's submission was the decision of the Full Court of the Supreme Court in Barclay v Cox[25], in which the Court[26] held that where the issue before the jury was whether the words of the alleged libel, in their ordinary and natural meaning, were defamatory of the plaintiff, the sole question for the jury to determine is whether the words in their ordinary and natural meaning are defamatory of the plaintiff. The court held that ordinarily it is inappropriate for a judge, in such a case, to leave to the jury the question whether the words, in the ordinary and natural meaning, bore the imputations contended for by the plaintiff, and whether those imputations are defamatory of the plaintiff. Mr Wheelahan submitted that that principle is still good law in Victoria. He submitted that, properly understood, the decision of the High Court in Chakravarti does not alter that position. Further, he submitted that the subsequent decision of the High Court in Manock does not set aside the principles stated by the Full Court in Barclay v Cox. Further, insofar as that decision might disturb the authority of Barclay v Cox for the purpose of the common law, he submitted that the provisions of the Act have "resurrected" those principles. In particular, he referred to s 8 of the Act, which states the common law position that the cause of action in defamation resides in the defamatory material, and not in the court's acceptance of one or more of the imputations relied on by the plaintiff. Mr Wheelahan submitted that that position is reinforced by s 22(2) of the Act, which provides that where defamation proceedings are tried by a jury, the jury is to determine "whether the defendant has published defamatory matter about the plaintiff", and, if so, whether any defence raised by the defendant has been established. Mr Wheelahan submitted that it is significant that s 22(2) requires a jury to determine whether the "matter" published by the plaintiff is defamatory, and not (as was previously the case in New South Wales under the 1974 Defamation Act) whether the imputations pleaded by the plaintiff are made out, and if so, whether they are defamatory of the plaintiff.

[34]

24 The issue raised by the plaintiff's application, in respect of the defence of honest opinion pleaded in this case, involves the question of the extent to which a defendant, by pleading justification or honest opinion (or fair comment), may seek to defend an imputation, which is not identical to the imputation relied upon by the plaintiff. In turn, that question is necessarily interrelated with the issue as to the extent, if any, to which a jury may find a publication to be defamatory of a plaintiff in a sense which is different to the imputation pleaded and relied upon by the plaintiff. For, fairness dictates that, insofar as a jury (or judge sitting alone) at trial may depart from the meanings relied on by the plaintiff in finding a publication to be defamatory, the defendant must be given the opportunity to rely on such defences as it sees fit to the "alternative" meaning so found by the jury (or judge). It is clear that the principles stated by the authorities in relation to both those questions, since the decision of the Full Court in Barclay v Cox in 1968, have evolved and changed. However, a review of the authorities reveals that two principal considerations have underscored the decisions of courts in recent cases, and in particular the High Court, in circumscribing the extent to which a jury, or a plaintiff or defendant, may depart from the defamatory imputations relied on by the plaintiff. First, the courts have been concerned to ensure that, insofar as a judge or jury might find a publication, complained of, to be defamatory in a sense which differs from the meaning pleaded by the plaintiff, such departure does not operate unfairly to the disadvantage of the defendant. Secondly, the courts have been concerned to ensure that a defendant, by seeking to defend an imputation which differs from the imputation relied on by the plaintiff, does not thereby hijack the trial of the case, by pleading and relying on "false issues", which do not meet the sting of the imputations relied on by the plaintiff.

[71]

54 In response, Mr Wheelahan submitted that the particulars provided under paragraph 6 are sufficient to justify an imputation of unethical purchase of the shares by the plaintiff. Mr Wheelahan focussed on four of the twelve particulars provided under paragraph 6. He referred: first, to the lengthy particulars as to the various dates upon which the plaintiff, directly or indirectly, acquired interests in shares in Solagran; secondly, to the particulars alleging the receipt by the directors of Solagran, including the plaintiff, of a preliminary report of the results of the Russian Ropren Trial by October 2006; thirdly, to the particular alleging the receipt by Solagran (and thus the plaintiff) of the final report of the Russian Ropren Trial by 27 November 2006; and, fourthly, to the particular as to the announcement, on 14 February 2008, by the directors of Solagran, of the results of the Russian Ropren trial. Mr Wheelahan submitted that, in order to establish unethical conduct by the plaintiff, it was not necessary for the defendants to prove, nor did they seek to prove, that in deciding to purchase shares in Solagran, the plaintiff had relied on information which was sensitive to the price of the shares, and which had not been released to the market. In other words, Mr Wheelahan submitted that the gravamen of the imputation, pleaded by the defendants, is not that the plaintiff had unethically taken advantage of information, available to him, but not the market, in purchasing the shares at a favourable price. Rather, he submitted that the imputation alleged by the defendants, and supported by the particulars, of unethical conduct, concerned the purchase of shares by a director of a public company, before that company had released details of the trial results of its product to the market. Mr Wheelahan likened the conduct, attributed by the contextual imputation to the plaintiff, to conduct of a judicial officer which is alleged to constitute ostensible, but not actual, bias. He submitted that the gist of the imputation pleaded by the defendants was that the plaintiff's conduct was unethical because of his act of purchasing shares during the period of non-disclosure.

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