17 To these cases may be added Joynt v Cycle Trade Publishing Co, Hunt v Star Newspaper Company Ltd and Australian Broadcasting v Comalco Ltd [6]
Were the facts true?
18 The defendant has, in its defence, identified the facts upon which it says the Gaming Minister's spokesman commented as being part of the words attributed to him in the article in The Australian. They were that "the firm was not a licensed bookmaker and had not received approval to offer its form of gambling".
19 The defendant submitted that this statement is literally true. The plaintiffs were indeed not licensed bookmakers and had not received any approval from the State of New South Wales to offer their form of gambling. But to argue that the statement is a statement (or two statements) of fact without qualification does violence to what the speaker is actually conveying by the words which he used. The argument that there is no implied qualification inherent in the statement is misleading. The words used carry a necessary implication that both a bookmaker's licence and approval from the State of New South Wales were prerequisites to the engaging in and the advertising of spread betting services in that State. In fact, neither precondition is necessary, provided the person who engages in and/or advertises spread betting is the holder of a relevant licence issued by ASIC under the Corporations Act 2001 (Cth). The statement must be understood as if the words ". . . both of which were required by law" or some similar phrase was appended to it. It cannot be understood otherwise.
20 Read in the only sensible way possible the statement of facts relied upon by the defendant is untrue in both its elements. That the Minister's spokesman may have thought it true is irrelevant. It cannot support a defence of fair comment at common law. Accordingly, insofar as the defendant's defence pleads fair comment in answer to the plaintiffs' claim in those jurisdictions in which this aspect of defamation is governed by the common law, that plea and the particulars supporting it must be struck out as not affording an arguable answer to the plaintiffs' claim.
21 It remains to examine the question as to whether the plea and the particulars have any efficacy with respect to those parts of the plaintiffs' claim which relies upon the law of jurisdictions in which the common law has been modified by statute.
New South Wales
22 Mr McClintock QC argued that the defence of comment preserved by the Defamation Act 1974 (NSW) requires only that the comment be based on "proper material for comment" or be based "to some extent on proper material for comment".
23 Section 30 of the New South Wales Act provides a definition of "proper material for comment". In the context of this case it means material which, at common law, would, because it consists of statements of fact, be material on which comment might be based for the purposes of the defence of fair comment on a matter of public interest. The section goes on to make various modifications to the common law position but not, it would appear, in any way material to the present case. Unless the material upon which the comment sought to be defended constitutes a good basis for fair comment at common law the defence cannot succeed.
24 If the statement of facts relied upon by the defendant is untrue it could not constitute proper material for comment as required by s 30. Even if Mr McClintock's submission that partial accuracy is enough to raise the defence under the New South Wales statute, as the particulars are untrue in both their aspects, that argument too must be rejected. Nor does his reference to Hill v Comben[7] avail him anything in this context. The reference to truth in the judgment of Davies and Pincus JJA in that case was made in the course of considering whether the "rolled up plea" was an appropriate plea of fair comment under the relevant provisions of the Criminal Code of Queensland.
25 The falsity of the facts upon which the comments sought to be defended are based renders the defence inapplicable as far as publication in New South Wales is concerned. It must be struck out.
Queensland, Tasmania, Western Australia and Northern Territory
26 The legislative provisions in Queensland, Tasmania, Western Australia and the Northern Territory are in virtually identical terms. Whilst they set out a number of matters be taken into account in determining whether the public interest aspect of fair comment (which does not concern us here) can be established they do not alter the common law with respect to the foundational requirement that the basis of the comment sought to be defended must be appropriate. Accordingly, the defence of comment relied upon by the defendant with respect to publication in each of these jurisdictions cannot succeed. Those defences must be struck out.
Conclusion
27 Mr McClintock contended that this application should not be entertained at all at this stage because the validity of the defences of fair comment or comment may depend upon facts which have not yet been ascertained. But the defendant has provided precise particulars in its defence of the facts upon which it seeks to defend the Minister's spokesman's statement as a legitimate expression of opinion. By doing so it has, in effect, adopted the report in The Australian as being an accurate recounting of what the Minister's spokesman said, at least to the extent that it has quoted that report in those particulars. Had it wished to suggest otherwise it should have done so in its pleading so as to raise an issue appropriate for determination at trial. It has not done so. There is no reason why the defences pleaded which are ineffectual should not be removed from the record at this stage to permit the trial to proceed on the real issues between the parties.
28 Each plea of fair comment or comment in the defendant's current defence together with the particulars said to support those pleas should be struck out. Accordingly, paragraphs 10(b), 11(b), 12 (d) and (e), 13(b) and (c), 14(b) and 15(b) and paragraph D of the particulars set out after paragraph 15 of the Further Amended Defence of the defendant dated 4 May 2006 are struck out. The defendant is ordered to pay the plaintiffs' costs of this application to be taxed.