Supreme Court of WA|2001-04-06|Before: Steytler J, Hasluck J

Reynolds v Nationwide News Pty Ltd & Ors [2001] WASC 90 (6 April 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : REYNOLDS -v- NATIONWIDE NEWS PTY LTD & ORS [2001] WASC 90

Defamation - Application to strike out - Whether words bear defamatory meaning - Whether test on interlocutory application corresponds to test applied at trial - Availability of Polly Peck defence - Right to defendant to plead alternative meanings - Qualified privilege plea

Rules of the Supreme Court 1971, O 20 r 19(1)(a)

First Defendant : Mr C J L Pullin QC & Mr S R Edwards

Second Defendant : Mr C J L Pullin QC & Mr S R Edwards

Negoescu v Griffiths, unreported; SCt of WA (Steytler J); Library No 970565; 30 October 1997

1 HASLUCK J: This is an application by the plaintiff in a defamation claim to strike out certain paragraphs of the amended defence of the first and second defendants and certain paragraphs of the statement of defence of the third defendant. There was no appearance for the third defendant at the hearing of the application. Accordingly, upon the application of counsel for the plaintiff, that part of the application concerning the third defendant was adjourned sine die.

2 The plaintiff pleads in his statement of claim that he was at all material times the secretary of the Construction Forestry Mining and Engineering Union ("the Union"). The first defendant is the publisher of the Sunday Times newspaper. The second defendant is a journalist employed by the newspaper and the author of the article complained of. The third defendant, Terry McParland, was at all material times a member of the Union.

3 The plaintiff pleads that in an article published under the heading "Bribe Offer", the defendants were responsible for publishing various defamatory imputations of and concerning the plaintiff. The article commenced by saying that a bribe had been offered to kill off a challenge to Labor power broker Kevin Reynolds in next month's Union election. Dissident campaigner, Terry McParland, was told he could have what he wanted if he withdrew his candidature in the Union ballot. The article said that the offer was put to Mr McParland by the plaintiff's deputy, Joe McDonald, at a secret meeting in King's Park. The article noted that the plaintiff had not previously been opposed in elections "during his 25-year reign at the helm of the State's main construction union."

4 Some pages later, under the heading "Building union rebel is offered big bribe", the article went on to refer to the alleged meeting in King's Park in more detail. Reference was made to the plaintiff, Mr Reynolds, being allegedly in charge of the Labor Party's centre faction in WA and to clashes with the parliamentary leadership of the Party. Mr McParland is alleged to have told the newspaper that the bribe was indicative of corruption within the Union. Reference was also made to the role of Joe McDonald as the assistant secretary and the most visible face of the Union on construction sites.

5 The article said that: "Where his boss Kevin Reynolds is the brains of the organisation, Mr McDonald is the chief protagonist." The article also said that former Union senior vice-president, Ron Kinney, was due to face trial later in the year on a charge of receiving a secret commission. It was said also that the Union was embroiled in extortion allegations concerning a dispute at Murrin Murrin.

6 The headings and the words comprising the article are described in par 5 of the statement of claim as the words complained of.

7 Various imputations said to be inherent in the words complained of were set out in par 6.1 to par 6.6 of the statement of claim. For example, by par 6.1 it is said that the words meant and were understood to mean in their ordinary and natural meaning that the plaintiff had, through his agent, offered to a candidate opposing him in Union elections, a substantial bribe not to run against him. The following subparagraphs complain of alleged defamatory meanings in respect of the plaintiff offering a bribe to advance his personal interest, committing the offence of extortion in respect of the Murrin Murrin dispute, conducting himself so as to give rise to a suspicion on reasonable grounds that he was guilty of extortion, causing the summary dismissal of the third defendant out of spite and ill will and falsely representing that the third defendant had been sacked as a Union organiser for incompetency.

8 The statement of claim goes on to assert that the plaintiff has been injured in his character, credit and reputation as a Union official and sets out various facts and matters which are said to justify claims for compensatory and exemplary damages against all three defendants.

9 It seems that the first and second defendants applied to strike out each of the six imputations pleaded in par 6 of the statement of claim on the grounds that the pleading failed to disclose a reasonable cause of action in terms of O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 and/or would prejudice, embarrass or delay the fair trial of the action in terms of O 20 r 19(1)(c). The application came before Anderson J in chambers on 5 December 2000. On that occasion, Anderson J declined to strike out any paragraph of the statement of claim save for par 6.6 concerning the allegation that the plaintiff had falsely represented that the third defendant had been sacked as a Union organiser. It is apparent from the transcript of the hearing before Anderson J that the learned Judge was satisfied that the first five of the pleaded imputations were arguable, but that par 6.6 had to be struck out because it was not arguable.

10 It was against that background that the first and second defendants proceeded to file a statement of defence with the operative document now being the amended defence of first and second defendants filed 22 February 2001. The defendants by their defence deny that the words complained of meant or were understood to mean or were capable of meaning any of the meanings pleaded in par 6 of the claim. The defendants say further in par 7 of the defence that the various meanings were true in substance and in fact. Particulars of justification as to par 6.1 are that the plaintiff had encouraged McDonald to approach McParland, a candidate opposing the plaintiff in the Union elections, and offer McParland a benefit to withdraw from the election. That particular is repeated in respect of par 6.2 of the claim. The particular of justification in respect of par 6.5 of the claim is that the plaintiff had summarily dismissed the third defendant from the Union's employment because of animosity.

11 In par 8 of the defence, under the heading "Polly Peck Imputations", the defendants plead, in the alternative, that the words complained of conveyed meanings different from those contended for by the plaintiff. The different meaning pleaded in par 8.1.1 of the defence is that the plaintiff condones unlawful conduct by officials of the trade union of which he is secretary. Lengthy particulars are then provided in par 8.1.1.1 to par 8.1.1.8 in which reference is made to the respective roles of the plaintiff and McDonald in the affairs of the Union, with it being said that the plaintiff did not censure McDonald for the attempted bribe (8.1.1.6); during the times the plaintiff has been secretary of the Union it and its agents have consistently acted unlawfully (8.1.1.7); and the plaintiff has publicly supported the intimidation of persons and corporations by the Union and its officials and members (8.1.1.8).

12 The different meanings contended for in par 8.1.2 are that the plaintiff had so conducted himself as to give rise to a suspicion on reasonable grounds that the plaintiff has failed to take action to eliminate unlawful conduct by officials of the Union when the plaintiff had power to do so. The particulars of justification provided in respect of that plea consist of a repetition of the earlier particulars.

13 The defendants set up a plea of fair comment in par 9 of the defence. I note in passing that counsel for the defendants at the hearing before me conceded that the fair comment plea in its present form was insufficient and should be struck out. Accordingly, I will not devote any further space to that issue.

14 The defendants set up a plea of qualified privilege in par 10 of the defence to the effect that the words complained of were published on an occasion of qualified privilege arising from an occasion of governmental and political discussion. Lengthy particulars of governmental and political discussion are set out in par 10.1, including reference to the alleged influence of the plaintiff in the affairs and policies of the Labor Party and the implications for politics in Western Australia of the plaintiff winning the Union election. Particulars of reasonableness of the first and second defendants' conduct are set out in par 10.2 and include reference to the first and second defendants believing the imputations were true (10.2.1); the defendants taking proper steps so far as they were reasonably open to verify the accuracy of such imputations and the accuracy of the words complained of (10.2.2). It is then said in par 10.2.3 that since the words complained of were not published of and concerning the plaintiff, the steps taken by the first and second defendants to verify the words complained of were, in all the circumstances, reasonable.

15 The plaintiff's application to strike out pursuant to O 20 r 19 was directed to certain specified paragraphs of the defence. That is to say, par 2 (the alleged failure of the words to convey a defamatory meaning), par 7 (the plea of justification directed to the meanings contended for by the plaintiff), par 8.1.1 and par 8.1.2 (the Polly Peck line of defence), par 9 (the fair comment defence) and par 10 (the qualified privilege defence). I will deal with each of these matters in turn, save for the fair comment defence which has already been disposed of.

16 The plaintiff submitted that it was not open to the defendant in par 2 of its statement of defence to contend that the imputations pleaded in par 6 of the statement of claim were incapable (as a matter of law) of arising from the words complained of because the issue raised by such a plea had already been disposed of by Anderson J in response to the defendants' earlier application to strike out that portion of the plaintiff's statement of claim.

17 The stance adopted by the defendants was that in resolving the interlocutory application brought before him, Anderson J, in the usual way, had simply made a determination that the imputations contended for by the plaintiff were arguable, with the result that the imputation should not be struck out, but as the test of whether the words complained of were capable of conveying a defamatory meaning to be applied by the Judge at the trial of the action was of a different and less stringent kind, one could not regard the ruling made by Anderson J as having a binding effect in respect of the present application. In other words, if the effect of the ruling made by Anderson J was that the imputations contended for by the plaintiff were arguable and should proceed to trial, the tenor of the decided cases was that any further question of whether the words were capable of bearing a defamatory meaning could only be dealt with effectively by the presiding Judge at the trial of the action because the Judge at trial would be applying a less stringent test. It was therefore appropriate that par 2 of the defence, which brought this matter into issue, should not be struck out at this stage.

18 It will be useful to look at some of the principles and decided cases bearing upon this issue.

19 An imputation will be defamatory if it tends to lower the plaintiff in the estimation of right-thinking members of the community. The first question to be addressed upon a striking-out application will often be whether the pleaded imputations can be said to arise from the words complained of. If so, the next question will be whether the words complained of are capable of conveying a meaning defamatory of the plaintiff.

20 It is well-accepted that imputations will be struck out in response to an interlocutory application before trial if they are untenable or manifestly groundless. This is consistent with the general power of the court to control its proceedings by providing summary remedies.

21 In General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 questions arose concerning the jurisdiction of the court to terminate an action summarily for want of a cause of action in the context of a claim to restrain an alleged infringement of letters patent. Barwick CJ noted at 128 that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. This follows from the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action is clearly demonstrated. The test to be applied has been variously expressed as manifestly groundless or so obviously untenable that it cannot possibly succeed. He emphasised, however, that great care must be exercised to ensure that under the guise of achieving expeditious finality, a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.

22 This general approach has been refined in regard to defamation claims. In Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 the plaintiff complained of a newspaper report suggesting he had designed a crane in a faulty manner. The Court of Appeal in New South Wales upheld the conclusion of a Judge in chambers that the words complained of were incapable of a defamatory meaning. The ground of appeal was that the order was in error in ordering the claim to be struck out in summary proceedings, the proper course being to allow the action to proceed to trial in that the issue was one ultimately for the decision of the Judge and jury at the trial. The Court of Appeal held that the considerations of extreme caution which the law commends to a Judge sitting alone to avoid "driving the plaintiff from the judgment seat" do not apply with the same force when the matter has reached the same tribunal which is charged with the responsibility of deciding issues of law upon demurrer.

23 The same issue was subsequently examined at some length by Hunt J in Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663. In that case, the plaintiff complained of words suggesting he had been involved in industrial espionage. Hunt J held that the words complained of were not capable of conveying an imputation defamatory of the plaintiff. Hunt J proceeded upon the basis that he was obliged to apply the reasoning reflected in the General Steel Industries case and the Bik case to hold that the tests referred to by Barwick CJ in the General Steel Industries case remain applicable to the exercise of the summary jurisdiction in defamation cases. This meant that a claim could be disposed of in the exercise of a summary jurisdiction if it was clearly untenable. However, if the characterisation was not of that order, and as nothing he could say could bind the trial Judge, his impression in the instant case that the words were incapable of conveying a defamatory meaning should not be imposed at an interlocutory stage of the proceedings, with the result that the plaintiff's statement of claim should not be summarily struck out.

24 Monte v Mirror Newspapers Ltd therefore appears to be authority for the proposition that the test to be applied upon a striking-out application as to the capacity of the words complained of to bear an imputation defamatory of the plaintiff is not the same as the test to be applied at trial.

25 Hunt J noted that the Judge exercising the court's summary jurisdiction would appear to be in just as good a position as the trial Judge to determine the capacity of the matter complained of to defame the plaintiff because, in most cases, the question of law has to be determined upon the same materials, namely, the words which were published without reference to any extrinsic facts, whether this question is argued before or at the trial. Nonetheless, as I have already indicated, Hunt J felt obliged to follow the previously decided cases, especially Bik, and hold that the trial Judge was not bound by an earlier ruling bearing upon the question of law as to whether the words were capable of bearing a defamatory meaning.

26 Before leaving Monte v Mirror Newspapers, I note that Hunt J expressed certain views about the pleading of imputations. He referred to those provisions of the Supreme Court Rules in New South Wales which require the statement of claim to specify each imputation on which the plaintiff relies. In his view, the effect of s 9(2) the Defamation Act 1974 and the Supreme Court Rules was that each imputation defamatory of the plaintiff conveyed by the matter complained of creates a separate cause of action. He said that there should be no limit on the number of imputations pleaded, provided only that they each differ in substance one from the other or others. What the plaintiff must plead is the imputation upon which he relies is the precise act or condition asserted of, or attributed to, him, or with which he is charged. It is the meaning alleged to have been conveyed by the words, rather than the words themselves which it is important to have precisely defined in the imputations complained of by the plaintiff. In very few cases would it be sufficient merely to repeat the wording of the matter complained of itself.

27 He noted also at 676 that the purpose of the pleading requirements was not to confine the plaintiff so that unless the precise imputations pleaded are found he will fail. The imputations specified in the statement of claim "must be taken to include all imputations which do not differ in substance."

28 The absence of a satisfactory rationale for the conclusion that a ruling before trial as to whether imputations are defamatory is not necessarily binding upon the trial Judge came under notice in Gumina v Williams (No 1) (1990) 3 WAR 342. Commissioner Pullin QC said at 346 that for his part he could not see any real difference between the test to be applied by the trial Judge and the Judge hearing an application for summary dismissal of pleadings. In other words, if he concluded that the words are not capable of bearing any defamatory meaning, then in his view the words should be struck out, having regard to the test enunciated in the General Steel Industries case.

29 On the other hand, as a member of the Full Court in Gumina v Williams (No 2) (1990) 3 WAR 351, Seaman J observed at 370 that in Monte v Mirror Newspapers a difference is drawn between the principles to be applied in interlocutory applications to strike out imputations and those to be applied by the trial Judge. Seaman J seemed to accept that such a difference existed, but he did not seek to explore the rationale underlying any such difference. Malcolm CJ in that case noted that the words complained of are material facts and must be pleaded. In Lewis v Daily Telegraph Ltd [1964] AC 234, it was held that it was desirable for a plaintiff to plead what he says is the natural and ordinary meaning of those words. In his opinion, the pleading of the meaning or meanings of the words complained of is a pleading of material fact or facts.

30 It follows from this review of the decided cases that there is a degree of ambiguity as to whether a ruling made before trial on the legal issue as to whether the words complained of are capable of bearing a defamatory meaning should be treated as decisive thereafter.

31 Counsel for the plaintiff in the present case acknowledged that the ruling of Hunt J in Monte v Mirror Newspapers weighed against his contention that the ruling of Anderson J should be treated as a decisive ruling that the words were capable of bearing a defamatory meaning, with the result that it was not open to the first and second defendants to revive the issue in par 2 of the statement of defence. Counsel submitted, however, that Monte v Mirror Newspapers should not be treated as a persuasive authority. The effect of the special pleading provisions in New South Wales was that each imputation creates a separate cause of action. In Western Australia, however, the question of whether a cause of action can be made out is determined not by the pleaded imputation, but by the words complained of. In the absence of any clear rationale for drawing a difference between the principles to be applied in interlocutory applications and those to be applied by the trial Judge, one should accept, in the circumstances of the present case, that Anderson J had made a binding determination that the words were capable of bearing a defamatory meaning.

32 To my mind, the rationale for the existence of two different tests of the kind assumed to exist by Hunt J in Monte v Mirror Newspapers is to be found in the reasoning of Barwick CJ in the General Steel Industries case. A court has power to control its affairs, with the result that provision is made for causes of action to be struck out in the exercise of a summary jurisdiction if they are untenable or manifestly groundless. This means that in the context of a defamation claim if, as a matter of law, the words complained of are thought to be incapable of bearing a defamatory meaning, then it is open to the court to strike out the claim at an interlocutory stage in the exercise of what must be regarded as a stringent preliminary test. Nonetheless, it is clear that a summary jurisdiction of that kind must be exercised sparingly so as not to deprive the plaintiff of access to the court.

33 It seems to follow from the balance of these competing considerations that if a ruling is made in response to a striking-out application that a claim is not manifestly groundless and is arguable, this is not necessarily the end of the matter. It would still be open to the trial Judge, as Hunt J appears to recognise in Monte v Mirror Newspapers, to conclude that although the cause of action cannot be described as manifestly groundless, the words complained of, upon close analysis, do not bear a defamatory meaning. I cannot see that there is any persuasive point of distinction between the rules of pleading under notice in Monte v Mirror Newspapers and the rules in the present case. It follows from the reasoning of Malcolm CJ in Gumina v Williams (No 2) (supra), that the rules of pleading in this State require that the meaning said to be inherent in the words complained of must be pleaded as a material fact and this requires, in effect, that the words complained of must be cast in the form of a specific imputation.

34 This view of the matter leads me to the conclusion that the plaintiff's application to strike out par 2 of the statement of defence on the ground that, having regard to the ruling of Anderson J, it is not open to the defendants to contend at trial that the words do not convey a defamatory meaning should be disallowed. The ruling made by Anderson J required consideration of the question of whether the meanings contended for by the plaintiff in his statement of claim could arguably be regarded as conveying a defamatory meaning. Anderson J held that there was an arguable case, that is to say, that the claim was not manifestly groundless. I consider, however, having regard to the reasoning of Hunt J in Monte v Mirror Newspapers and the matters I have just touched up, that the ruling of Anderson J leaves open for determination at trial the further question of whether the words are not just arguably but actually capable of conveying a defamatory meaning. Accordingly, I will not strike out par 2 of the first and second defendants' statement of defence.

35 I consider that par 7 of the defence should be struck out as embarrassing on the grounds contended for by the plaintiff but with leave to replead. The defendant pleads truth to imputation 6.5 but the particulars provided are not sufficient to substantiate such a plea. In effect, the particulars merely repeat the imputation and do not plead any material facts in relation to the issue.

36 I must now turn to the application to strike out par 8.1.1 and par 8.1.2 of the defence, that is to say, the Polly Peck plea in which the plaintiff seeks to assert meanings different from the meanings contended for by the plaintiff and to justify the different meanings in which respect various particulars of justification are provided. In regard to this issue also, it will be useful to begin by looking at the relevant legal principles and previously decided cases.

37 The basic rule is that it is up to the plaintiff, where a number of distinct allegations are made against him, to decide in respect of which allegation he will sue. But the plaintiff is not entitled to take a blue pencil to the article so as to change its meaning and then prevent the defendant from justifying the words in their unexpurgated form. For this purpose, the defendant is entitled to use the whole of the published article as the basis for the plea of justification. This approach does not apply, however, where the charges are severable and distinct. The question of whether they are so is one of fact and degree, and if there is a "common sting" in the allegations, that may prevent the plaintiff asserting that they are distinct. If the defendant wishes to establish that the statement has a defamatory meaning different from that contended for by the plaintiff, and that the statement is true in that different sense, then he must frame his plea of justification so as to inform the plaintiff and the Court precisely what meaning it is he will seek to justify. Gatley on Libel and Slander (9th ed) par 11.12.

38 These principles were approved by the Full Court in this State in Gumina v Williams (No 2) (supra). The Full Court held that a defendant may not raise and then seek to justify a separate and distinct charge that may also arise from the words complained of. However, a defendant is not confined in a plea of justification to the meaning that the plaintiff says is to be ascribed to a distinct charge arising from the words complained of. If a defendant pleads justification, he is required to plead the meaning which he will seek to justify. In that case, it was held that it was open to the defendants to plead that an imputation of suspicion was capable of arising from the article.

39 In the subsequently decided case of Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, Brennan CJ and McHugh J suggested that the Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 defence or practice contravenes fundamental principles of common law pleadings in that it raises a false issue which can only embarrass the fair trial of the action. In their view, there ought to be no case where a defendant is required to set up a false hypothesis, in the sense of a hypothetical claim which the plaintiff does not presently rely upon, but which it is open to the jury to find. In their view, it is for the plaintiff to allege what meaning should be given to the publication and the jury ought not to be entitled to go beyond them.

40 This criticism of the Polly Peck defence prompted the Court of Appeal in Victoria in David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24 to undertake a full review of the law bearing upon this issue. In that case, an article arguably asserted that the plaintiff was telling lies about the finances of the Fitzroy Football Club. The plaintiff set out various imputations to the effect that he had lied on certain specified occasions. The defendants indicated an intention to justify at least one meaning different from those stated by the plaintiff. The plaintiff then sought further and better particulars of the defence, or that it be struck out. The main issue on the summons was whether or not the defendants were obliged to plead what they contended was the natural and ordinary meaning of the article which they said would prove to be true, notwithstanding the criticism of the Polly Peck defence voiced in Chakravarti for the view that Polly Peck (Holdings) Plc v Trelford (supra) and Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 were not to be followed in Australia. In essence, the plaintiff said that the defendant was obliged to plead the meanings on which it would rely at trial in support of the plea of justification.

41 Both Ormiston and Charles JJA seemed to except that so long as it was open to the jury to go beyond the meanings asserted by the plaintiff (being a possibility allowed for by Brennan CJ and McHugh J), then it must be open to the defendant to protect himself against the possibility of a finding that departed to some extent from the meanings contended for in the statement of claim by seeking to justify alternative meanings, provided the requirements of the Polly Peck defence were complied with. This meant that if the defamatory allegations in their context could be characterised as having a common sting, they are not to be regarded as separate and distinct allegations.

42 Against this background, and especially having regard to the reasoning of the majority in the David Syme case, I conclude that it is open to the first and second defendants in the circumstances of the present case to plead a Polly Peck defence. The question is, however, in the circumstances of the present case, whether the different meanings that the defendants seek to justify are sufficiently related to the manner in which the plaintiff has chosen to plead his case. Counsel for both parties seemed to accept that a Polly Peck defence is not available where there are distinct and separate imputations. The question in the present case was one of fact and degree and as to whether there was a common sting in the allegations sufficient to allow the defendant to plead the different meanings for which it contends in par 8.1.1. and par 8.1.2. Counsel for the defendant accepted that some repleading would be necessary in respect of the particulars presented on the face of the pleading, but contended that the plea should not be struck out in its entirety.

43 In order to resolve this issue, it is necessary to return to the content of the article and the way in which the plaintiff's claim was formulated.

44 Counsel for the plaintiff submitted that the emphasis in the article complained of was that a bribe had been offered and that the plaintiff had been involved in events akin to extortion. The various imputations pleaded in par 6 of the claim (less par 6.6 struck out by Anderson J) were directed to bribery, extortion and the plaintiff's alleged involvement in the dismissal of an employee. These were said to be discrete allegations and it was therefore not open to the defendants, having regard to the principles applicable to the Polly Peck defence to seek to justify alternative meanings that the plaintiff had condoned unlawful conduct (par 8.1.1) or that he had so conducted himself as to give rise to a suspicion on reasonable grounds that the plaintiff had failed to take action to eliminate unlawful conduct.

45 Counsel for the plaintiff (par 8.1.2) argued that in Polly Peck it was decided that where a plaintiff complained that the natural and ordinary meaning of selected words in the publication was defamatory of him, and pleaded the meaning which he contended they bore by way of false innuendo, the defendant was entitled to plead that in their context the words complained of were true in any meaning which was open to the jury to find that they bore; and that where a publication contains several defamatory stings which, in their context, had a common sting and the plaintiff complained of one or more, but not all of them, the defendant was entitled to justify that sting.

46 Counsel for the plaintiff in the present case illustrated his stance by reference to the decision of the New Zealand Court of Appeal in Templeton v Jones [1984] NZCA 14; [1984] 1 NZLR 448. In that case, the defendant had distributed copies of a speech in which he described the plaintiff, a political candidate, as a man who despised "bureaucrats, civil servants, politicians, women, Jews and professionals." The plaintiff brought proceedings claiming that the allegation published on television that he despised Jews was false, malicious and defamatory. The other allegations in the speech were ignored. The defendant pleaded justification for all the allegations. In interlocutory proceedings, the Judge struck out all the particulars of justification other than the one that related to the allegation that the plaintiff despised Jews.

47 On appeal, Cooke J, speaking for the Court of Appeal, said at 452:

"In the present case, however, the allegation that the plaintiff despises Jews is not reasonab1y capab1e of being treated as other than a distinct charge. It is obviously different, for instance, from the allegation that he despises women. It is true that many of the allegations in the passage quoted in para 5 of the statement of claim are variations on or illustrations of a theme: namely that the plaintiff indulges in the politics of hatred. They are specific and severable allegations nonetheless.

It is important to note that the plaintiff is not suing on all the words set out in para 5. In para 6 it is made clear that only the allegation about Jews is sued on. The defendant on the other hand, as is made plain by the opening words of para 7 of the amended statement of defence, wishes to prove that all the words set out in para5 of the statement of claim are true. That is not permissible, because of the limited nature of the plaintiff's complaint."

48 Counsel for the plaintiff in the present case submitted that the plaintiff had chosen to proceed in respect of that part of the article concerning allegations of bribery, extortion and wrongful dismissal. In the circumstances of the present case it could not be said that the common sting of the allegations reflected a more general accusation of condoning unlawful conduct. Further, and in any event, counsel for the plaintiff submitted that, as a matter of form, the allegation of condonation and unlawful conduct was not sufficiently precise. The imputation pleaded by the defendants does not identify the precise act or condition and the use of the words "unlawful conduct" is uncertain and embarrassing. The defendants must plead material facts upon which the tribunal of fact could determine whether unlawful conduct had occurred. Further, the particulars provided did not impute and knowledge on behalf of the plaintiff or that he condoned the activity complained of.

49 Counsel for the defendant drew attention to those passages in the article which appeared to raise general issues as to the manner in which the affairs of the Union were being conducted. It appears from the narrative provided earlier that the article contained an assertion by the third defendant that the bribe allegedly offered was allegedly indicative of corruption with the Union and that there were references to more general political issues.

50 In my view, the plaintiff in the present case has chosen to proceed against the defendants in respect of a number of specific allegations which are said to be contained in the article complained of. I have already noted that in defamation cases the very words complained of are the material facts and must be pleaded as material facts or as particulars of any material fact. I have already noted that in their lengthy and detailed analysis of the principles applicable to the Polly Peck defence, the majority in David Syme & Co Ltd v Hore-Lacy recognised that in a sense the Polly Peck defence can be regarded as a manifestation of the precept recognised by Hunt J in Monte v Mirror Newspapers and by Brennan CJ and McHugh J in Chakravarti that the jury is entitled to go beyond the meanings asserted by the plaintiff. The corollary of the precept seems to be that the defendant should be allowed to plead alternative imputations. It is quite clear, however, if this be the rationale, that the Polly Peck defence must be narrowly confined to imputations and meanings similar to the imputations contended for by the plaintiff, bearing in mind that, as in Templeton v Jones, the plaintiff is at liberty to complain only of certain passages or aspects of the publication in question provided that he does not thereby deprive the defendant of reliance upon the common sting in the allegation.

51 In the circumstances of the present case, it seems to me that the imputations pleaded by the plaintiff are confined to certain specific matters, namely, an issue concerning the offer of a bribe, an issue concerning extortion and an issue concerning a wrongful dismissal. It is true that these specific matters are to be found within an article in which reference is made to wider concerns and it may be that these more general issues are matters which can be relied upon by the defendants by way of the defences of fair comment and qualified privilege. However, I am not persuaded that the defendants are at liberty to plead alternative meanings of the kind reflected in par 8.1.1 and par 8.1.2 to the effect that the plaintiff condones unlawful conduct by officials of the Union upon the basis that these meanings represent the common sting of the article.

52 I have already noted that where the charges are severable and distinct, the question of whether they are so is one of fact and degree. To my mind, the imputations pleaded by the plaintiff should be characterised as severable and distinct from the matters of wider concern sought to be pleaded by the defendant. Accordingly, I consider that the plaintiff's application to strike out the Polly Peck plea in par 8.1.1 and par 8.1.2 of the defence on the ground that the plea discloses no reasonable defence and/or that it may prejudice, embarrass or delay the fair trial of the action should be allowed, but with leave to replead.

53 Further, and in any event, I consider that as a matter of form the pleas in par 8.1.1 and par 8.1.2 are too broadly expressed and should be struck out as embarrassing. I consider that the defendants are obliged to specify with greater particularity the nature of the unlawful conduct which is said to have taken place and to set out the facts and matters amounting to condonation or giving rise to a reasonable suspicion concerning the same. I will not explore this aspect of the matter at greater length, as it is apparent from my earlier conclusion that the plaintiffs will be obliged to replead. Further, and in any event, when I turn to the particulars underpinning the pleas in par 8.1.1 and par 8.1.2, I am conscious of the concession made at the hearing by counsel for the defendants that the defendants intend to revise the pleadings and cast them in a more acceptable form. It follows that as a matter ancillary to my ruling upon this issue the defendants will be allowed leave to replead.

54 I turn now to the question of qualified privilege. The challenge to the defendants' pleading as to this aspect of the matter was limited to a number of specific issues. The plaintiff seemed to accept that there was an arguable case as to whether the words complained of were published on an occasion of qualified privilege arising from an occasion of governmental and political discussion. Counsel for the plaintiff submitted, however, that in providing particulars of reasonableness of the first and second defendants' conduct the plea was defective in that par 10.2.2 pleads proper steps were taken, but does not identify them. It was also suggested that the reference to "such imputations" was not sufficiently precise. It was said further that par 10.2.3 does not identify the steps that were taken by the first and second defendants to verify the words complained of were in all the circumstances reasonable.

55 The plaintiff is entitled to know the case he has to meet at trial. Counsel for the defendants recognised that a plaintiff is entitled to know the basis upon which the defence of qualified privilege is being advanced. In the circumstances of the present case, I consider that the plea of qualified privilege in its present form is embarrassing for the reasons identified by the plaintiff. In the context of an allegation concerning a bribe, it is clearly material to know what steps were taken by the publisher to substantiate such an allegation so that the opposing party will be in a position at trial to meet the case against him. Accordingly, I consider that par 10 of the first and second defendants' defence should be struck out on the grounds that it is embarrassing, but with leave to replead.

56 In summary, then, for the reasons previously given, I will strike out par 7, par 8.1.1, par 8.1.2, par 9 and par 10 of the first and second defendants' defence, but with leave to replead. I will hear from the parties as to whether any further orders are required.

Reynolds v Nationwide News Pty Ltd & Ors [2001] WASC 90

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (66 paragraphs)

Reynolds v Nationwide News Pty Ltd & Ors [2001] WASC 90 (6 April 2001)

Parties

Cases Cited (4)