Plaintiffs v Defendants

Plaintiffs v Defendants - [2005] VSC 304 - VSC 2005 case summary — Zoe

[15]

21 As stated, the particulars subjoined to paragraph 30 set out the facts concerning the making of the appointment, the attendance, the provision of sexual services and the false receipt.

22 Counsel for the defendants stated that it was proposed to call that person as a witness. On any view he is indeed a very important witness to the plea of justification. In addition, the defendants' solicitors have provided a copy of the statutory declaration declared by the witness on 14 May 2003 with his name and address and signature blotted out. The question is whether the plaintiffs are entitled to the name of the person prior to trial. In addition, the plaintiffs have discovered documents which indicate that Dr Li knows the date upon which the person attended her premises and has discovered an entry in her appointment book for that date at which that person attended upon her and she has discovered the receipt. However it would appear that she does not know who that person is.

23 It is clear that at trial the person will be a witness and is anticipated will give evidence in accordance with his statutory declaration. It is obvious that the plaintiffs will not be caught by surprise; they have the assertion in the article which is said to be true in substance and in fact and they have a copy of the statutory declaration. They have every opportunity to prepare their case to meet the expected evidence if they can.

24 This is a common law proceeding. In the past, parties prepared their cases in anticipation of the likely witnesses to be called by the other party but nevertheless there was always the risk of a surprise witness. Advocates had to be extremely nimble on their feet to deal with the surprise witnesses and of course their ability depended very much upon their preparation. It was appreciated that in certain circumstances this was unfair to a litigant and accordingly rules were enacted in respect to certain witnesses such as experts. A party seeking to call an expert was required to give copies of reports and the like to other parties.[4] More recently a practice has been established in this Court of ordering that in certain cases, especially commercial cases, evidence-in-chief will be given by witness statements that must be filed and delivered prior to trial. In addition, the Listing Master, when setting down other cases, sometimes requires the parties to exchange summaries of evidence to be given by witnesses. That is not the procedure in the Major Torts List. I do not criticise for one moment the practice in the Major Torts List. If that practice is followed in the present proceeding, then the plaintiffs will not be informed of the name of this proposed witness.

25 I must say that I do not understand why the defendants are so coy in naming the prospective witness. There may be an argument, consistent with the modern practice of litigants putting their cards on the table face up, that the Court should order that the name of the witness be disclosed. However, that is a matter that in my view is best left to the Judge in charge of the Major Torts List. Further, I say nothing about the adequacy of the discovery. In addition to their submission that the name of the person is not a material fact and hence does not have to be pleaded, the defendants rely upon the newspaper rule of confidentiality. The parties have referred to a number of cases.

26 Before considering the cases it is appropriate to consider the request in accordance with the principles of pleading. Order 13 of the Rules of Court lays down the requirements of pleadings. Rule 13.02 deals with the content of a pleading. Rule 13.02(1)(a) states the general rule as follows -

[19]

28 It is clear from the rules that the defendants were obliged to plead all material facts on which they rely, and must state any fact which might take the opposite party by surprise. The facts in issue must be particularised if necessary, to enable the opposite party to plead, to define the issues and to avoid surprise at trial.

29 The defendants have pleaded justification. They carry the burden. The defence must meet the sting of a libel. The particulars subjoined to paragraph 30 of the amended defence, being particulars (c), (d) and (e) deal with a specific incident involving a person who attended at Dr Li's premises, received a massage, sexual services and was given an allegedly false receipt. These facts are relied upon to meet the sting of the libel that Dr Li operated an illegal brothel, was a prostitute, performed sexual services on a person and provided false medical receipts. The defence is pleaded to a number of articles. By way of example, the particulars are pleaded to meet paragraph 7 of the amended statement of claim concerning the first article being the first four imputations pleaded on behalf of the plaintiff, Dr Li.

30 In order to prove the defence of justification it is necessary to prove that the defamatory sting is true in substance and in fact. Taking the first article and on the assumption that it conveys the first four pleaded imputations the defendants would have to prove Dr Li operated an illegal brothel, she was a prostitute, performed sexual services for reward on a person arranged by the Herald-Sun to visit her suite and provided a false medical receipt. Dr Li has not pleaded in the alleged defamatory imputation that the person was a member of the legal brothel industry. The defendants have in their defence pleaded he was and the article so states. I doubt if it is a material fact which must be proven in order for the plea of justification to succeed.[5] It is not, in my opinion, necessary for the defendant to prove the name of the person or, indeed, whether the person is male or female. I doubt whether the defendants have to prove he was a member of the legal brothel industry. In my opinion, based upon the well established principles concerning pleadings, it is unnecessary for the defendants to prove the name of the person in question. The name is not a material fact essential to the justification defence. It was submitted on behalf of the plaintiffs that the words complained of referred to "a member of the legal brothel industry" who visited Dr Li's premises. If that has to be proven the person's name is not a material fact. It is a fact that an appointment was made, the person sought a massage, was allegedly given a sexual service and given a fraudulent receipt, which are the essential matters to prove to meet the sting of a libel. Of course in giving his evidence his name will be revealed.

31 The plaintiffs relied upon two cases. In the first, Marriott v Chamberlain,[6] the Court of Appeal was dealing with an application for further answers to interrogatories. It is important to note that there is a difference between discovering facts by discovery of documents or interrogatories and particulars. The point was made by the learned authors of Odgers on Libel and Slander[7] when they said -

[37]

39 As his Lordship made plain, the particulars were necessary to enable the plaintiff to meet the case upon that point.

40 In my opinion that is not the position here. The plaintiffs have chapter and verse of the allegation, and the only thing they do not have is the actual name of the person. The name of the person is not essential to the defendants' proof or the plaintiffs' case in meeting the defence. The plaintiffs are not entitled to the name of the representative of the legal brothel industry.

41 The defendants also rely upon the newspaper rule, namely, the rule of practice whereby courts will not order the disclosure of the identity of a media defendant's confidential source unless it is necessary in the interest of justice. See McGuiness v Attorney-General (Victoria)[16] and John Fairfax & Sons Ltd v Cojuangco[17]. In light of my conclusion, it is unnecessary to consider the application of this rule. In the latter case the High Court made it clear that the mere fact that disclosure of a source would be relevant to an issue in the case is not sufficient on its own to require disclosure, and secondly that the prima facie rule at the interlocutory stage is that disclosure will not be compelled unless it is necessary to do justice between the parties. If I was otherwise of the opinion that it was essential and necessary for the plaintiffs' case refuting the plea of justification to know the name of the person, I would not have refused an order requiring disclosure under the newspaper rule. However, it is unnecessary for me to say anything more on this point.

42 This is a common law proceeding. It is not a criminal proceeding. In the latter, the rule is that the accused person must be apprised of the evidence of all witnesses who are going to be called by the Crown. That is not the position in a civil proceeding. On the other hand procedures have changed over the last 20 or 30 years, aimed at avoiding surprise at trial and encouraging settlements. I have referred to some of the changes. No doubt the complaint made by the plaintiffs in the present proceeding is that, although they know what the witness is to say they do not know who the witness is and, accordingly, will be deprived of any opportunity pre-trial of gathering any information concerning the credibility of the witness. Consistent with the position today which is aimed at ensuring the parties have full knowledge of the case against them and the avoidance of surprise, I see no reason why application should not be made in the present proceeding at the time when the trial is set down for hearing for a direction that a the parties exchange a list of witnesses and their addresses. Whether such a direction is appropriate is a question for the Judge in charge of the Major Torts List.

Particulars of Comment

43 As stated, the defendants have pleaded the rolled-up plea of fair comment. The plaintiffs made a request for particulars stating "the substance of the comment conveyed by the ... articles". The defendants refuse to supply any particulars and rely upon the decision of the Court of Appeal in Aga Khan v Times Publishing Co[18] which established a practice which was followed in this State up to the decision of Ashley J in 2001.

44 The defence of fair comment is a defence commonly pleaded by newspapers. The earliest case in which such a defence is reported was Dibdin v Swan and Bostock[19]. The defence was formally raised by simply pleading the general issue but after the Common Law Procedure Act 1852 was passed it became common to plead a special plea in addition to the plea of "not guilty". There is no doubt that by the turn of the nineteenth century, fair comment had to be specially pleaded. See generally Odgers supra[20].

45 The rolled-up plea was sanctioned by the Divisional Court in Lord Penrhyn v Licensed Victuallers Mirror[21]. A plea in that form requires the defendant to justify the statements of fact contained in the libel or prove they are privileged. It does not require justification of the comment. See Odgers supra[22]. It is not two defences. It is one, namely, a defence of fair comment.[23]

46 In the case of the Aga Khan v Times Publishing Co[24] the Court was dealing with an action in libel. The defendant pleaded a rolled-up plea of fair comment. The plaintiff took out a summons seeking further particulars. He sought particulars of what the defendants were saying were allegations of fact and what were expressions of opinion. Bankes LJ[25] stated the rule concerning the entitlement to particulars was "only for the purpose of ascertaining the nature of his opponent's case that he has to meet, and not for the purpose of ascertaining the evidence by which his opponent proposes to prove it".

47 His Lordship then went on to observe that by the rolled-up plea the publisher ties himself down to the admission that it is the statements of fact contained in the libel and no others on which he intends to rely. He then stated -

[39]

48 He observed that in some cases a judge might tell a jury that a particular statement is not an expression of opinion but then noted that there are statements in which different minds may take different views. His Lordship then made the obvious statement that if required to specify which were facts and which were comment, a defendant would be justified in saying in respect to the doubtful ones that it was a question for the jury. The Court of Appeal was of the view that no useful purpose would be achieved by requiring the defendant publisher to provide the particulars.

49 The statement of principle in the Aga Khan case was applied in England until the Rules of Court were amended in 1949. The rules required a defendant who pleaded a rolled-up plea to give particulars stating which of the words were statements of fact and the facts and matters which were relied upon in support of the allegation that they were true.[26] In Cunningham-Howie v F W Dimbleby & Sons Ltd[27], Denning LJ, speaking for the Court of Appeal[28], noted that several judges including Atkin and Scrutton LJJ had expressed their strong disapproval of the Aga Khan case and noted that in 1949 the Rules of Court were altered. His Lordship then observed, "That new rule does away with an anomaly of the law." The Victorian rules have not been so amended.

50 I interpolate to observe that the rolled-up plea is no longer pleaded in England. The Aga Khan case was followed in this State in Watt v The Herald & Weekly Times Ltd.[29]

51 In considering the request by the plaintiffs in this proceeding, it is important at the outset to determine what is requested. What is requested is an identification of what constitutes the comment which was said to be fair. In other words, what is the comment said to be conveyed by the article which is said to be fair in the circumstances?

52 In my opinion the answer to that question must be considered in the context of each of the imputations of each article. If an imputation is proven to be defamatory of the plaintiff, it is that defamatory sting which the fair comment defence is pleaded to meet. The defamatory sting once proven identifies the subject matter of the comment. Of course if it is not comment but a statement of fact, the defence fails. I do not see how the plaintiffs can say they need identification of the comment by the publisher on the ground of surprise, because it must follow that the defence seeks to meet the plaintiffs' case based on the imputations pleaded and found by the jury to be defamatory. In those circumstances, the request for further particulars is unnecessary. The plaintiffs' statement of claim identifies the subject of a comment, if it is a comment.

53 In my opinion the course of the litigation will identify what the defence of fair comment is pleaded to meet, and the plaintiff would have no difficulty prior to trial appreciating what the defence is seeking to meet. The plaintiff at the date of issue of the writ identifies the words complained of which contain the defamatory imputations. In accordance with the modern practice, the plaintiff is bound to plead the defamatory imputations. By doing so the plaintiff establishes the parameters of the defamatory sting or stings which he or she relies on in the words complained of. In most cases the publisher does not admit that the words were defamatory or that the imputations pleaded were conveyed by the words complained of. The publisher does not give particulars of what he says the words mean. At trial a publisher is entitled to submit to the tribunal of fact that the words do not mean what the plaintiff says they mean and that they do not convey the defamatory imputations pleaded or any similar meaning which may be defamatory. What the words mean and whether they are defamatory and if so, in what meaning, are questions for the jury. It is not until the tribunal of fact decides what is or is not defamatory that the defence of fair comment is to be considered. The defence of fair comment is a defence to the defamatory sting or stings found by the tribunal of fact. Once the defamatory sting or stings are found, the issue becomes whether the defendant has proven each element of the defence. Whether or not the defamatory stings constitute a statement of fact or of opinion does not depend upon evidence but depends upon a consideration of the words complained of. The trial judge does have a part to play prior to the tribunal of fact determining whether or not the defence is made out. If the trial is by judge and jury, it is necessary for the court to rule whether a particular conclusion would be open to a jury. Hence, the court will determine whether or not the possible defamatory stings are to be regarded as statements of fact or capable of being regarded as comments.[30]

54 In the course of preparation for trial the plaintiff should have no difficulty determining what is the subject of the defence of fair comment. The subject matter is identified by the pleaded defamatory stings. Whether or not the defamatory stings in the context of the words complained of are comment or fact is a question which has to be considered by the trial judge. There is no doubt that different minds may reach different conclusions. But that is part and parcel of defamation litigation. The plaintiffs' advisers in this case could be under no illusion as to what the defence of fair comment seeks to meet and that is the alleged defamatory stings pleaded by the plaintiffs. The defence seeks to meet the libel complained of. It is the established defamatory imputations which identify the subject matter of the fair comment defence. By way of example in the present case, in the first article it is contended that the sting of the libel is that Dr Li operated an illegal brothel, she was a prostitute who performed sexual services for reward to a person whom the Herald Sun had arranged to visit her, that she provided false medical receipts to her patients so they could recover the cost from their health insurer, and finally, that she held herself out as a legitimate medical practitioner when in fact she was a prostitute. If the first article imputes those matters or any of them, and assuming they or some of them are defamatory, it is those matters which the fair comment defence seeks to meet. It is the imputations found as defamatory which in fact identify the subject matter of the fair comment defence.

55 In Control Risks Ltd v New Library Ltd[31] the Court of Appeal held that a defendant relying on the defence of fair comment had to plead with some precision the comment relied upon as constituting the defence so that the plaintiff knew the case he had to meet. Nicholls LJ[32] after noting that a plaintiff is entitled to know what case he has to meet under a defence of fair comment observed that when justification was pleaded the defendant was required to spell out in his pleading the meanings of the words he would seek to justify. His Lordship then said:

At a glance

Court

Decision date

Before

Source

Judgment (48 paragraphs)

Parties

Cases Cited (6)