After some introductory material he proceeded to interview the first plaintiff who sought to demonstrate the reasonableness of his advice to Mr Abbott.
11 The plaintiffs have not sued upon the Hadley programme in these proceedings.
12 The defendant challenges the pleading, and seeks an order requiring the plaintiffs to plead both programmes as a single composite publication. It submitted that it is unreasonable that they did not plead in this way. It was submitted that at the end of his programme Mr Jones had invited police and others to call in and that the opening items in Mr Hadley's programme, including the interview, demonstrated a direct connection between the programmes so that, in effect, both were inseparably linked and qualified each other. It was submitted that in the circumstances the ordinary listener might reasonably be expected to have heard and understood them as if they were one publication. It was argued that the matter in the combined items in the Hadley programme, particularly the explanatory statements of the first plaintiff, were capable of affecting imputations 8(d), (e), and (f), concerning the first plaintiff.
13 The defendant submitted that in this case, consistently with the principles in Gordon v Amalgamated Television Services Pty Ltd (1980) 2 NSWLR 410, pp 413-415 and Burrows v Knightley (1987) 10 NSWLR 651, pp 655, 657, it is entitled to require the plaintiffs to plead as one publication separate publications which are sufficiently identified and linked with each other. (Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107, para 53).
14 Recent authorities which considered the principles relevant to the questions raised by the defendant were referred to in Kyle Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250 from which it is appropriate to quote the following:
18. In Phelps (paras 22-30) Her Honour upheld the right of a plaintiff to frame his action as he chooses subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen ( Ron Hodgson p 480). Phelps was approved in Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 (paras 54-56) and in The Age Corporation Ltd v Beran [2005] NSWCA 289 (paras 40-41).
19. In The Age Corporation Hodgson, JA said:
"41 In my opinion, McColl JA endorsed Phelps , but held that the relationship between the two parts published in The Sydney Morning Herald was such that, not only could the two parts properly be seen as a single publication, but that this was the only view reasonably open. McColl JA held in effect that this was not one of those cases, referred to at [10] in Phelps , where reasonably-minded people could consider either classification, that is as a single entity or as a number of entities, to be valid.
42 There may be cases where reasonably-minded people could consider either classification valid, so that it is prima facie open for a plaintiff to plead the parts as individual publications, and also plead their combination as a publication, but nevertheless where this should not be permitted because it introduces confusion and complexities into the case wholly unwarranted by any advantage to the plaintiff, and thus can be considered embarrassing. It is possible that this was the approach taken by Adams J in the Plaintiff's case against John Fairfax, and that McColl JA endorsed this as a further reason for dismissing the appeal.
43 The question then is, is the material as published in The Age such that the only view reasonably open is that this was one publication? In my opinion, plainly not. No part of the second section of The Age material appeared on page 1; and the first section on page 1 did not indicate that what was on page 13 was to be read together with what was on page 1 as part of the same whole. There were none of the indications of unity of the two sections displayed in The Sydney Morning Herald material and referred to earlier. Reasonable readers could well read what appeared on page 1 of The Age and not read what appeared on page 13. In my opinion, this was a case where reasonably-minded people could regard the two sections as separate publications, and could also regard them as part of a whole: that is, they could regard both possible classifications as being valid".
20. In order to succeed on its strike out application on the ground of unreasonableness, the defendant must establish that not only could the three broadcasts properly be seen as a single publication, but that this is the only view reasonably open ( Phelps para 30, The Age para 41). This is another way of saying that it must establish that the plaintiff's claims as pleaded are so obviously untenable that they cannot possibly succeed or that they are manifestly unarguable ( General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125, p 129).
21. Entrenched in the law of defamation is the principle that each publication of defamatory matter constitutes a new and separate tort for which a plaintiff could sue, and gives rise to a separate cause of action ( Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, paras 27, 124, 197). As each separate communication of defamatory matter is actionable, attention is necessarily directed to identifying the occasion on which the publisher made the communication and committed the tort of defamation. The tort will be complete when, by the communication of defamatory matter in comprehensible form to another, damage to reputation is done Gutnick (para 44).
22. As stated in Phelps (para 24) the answer to the question whether related matter published on different occasions should be regarded as one or as a composite involves assessment of the particular facts and circumstances in each case. Where the publications are transient in nature, such as radio and television broadcasts, significant weight will ordinarily be given to the intervals between them, to the context of other matter in which each was presented, and to the commonality or diversity of their content. The question should usually be resolved by taking a common sense approach to the evidence.
23. It follows that questions of imputations or meanings will not arise until the content of the matter complained of in each case has been determined. A "strike in" order which requires the plaintiff to plead the whole of the publication is ordinarily available to the defendant only where a viewing (reading or listening) of the whole is capable of altering or qualifying a defamatory meaning claimed to be conveyed by the part which the plaintiff has chosen to plead. Gordon and Ron Hodgson do not assist in defining the scope and content of a publication claimed to contain a libel. Their relevance is to the issue of the meaning of the matter found to have been published".
15 Accordingly, the success of a defendant in a "strike in" application requires clearing two hurdles. The first is to establish that the omitted matter is an inseparable component of the publication. The second, after delineation of the publication by which the plaintiff claims the libel was conveyed, is to establish that the omitted matter is capable of affecting the sense or imputation(s) conveyed by the matter which the plaintiff has pleaded.
16 It is useful to be reminded of the passage in Buckingham v Murray (1825) 2 Car. & P. 46, 172 ER 22 in which Abbott, CJ said:
"Suppose one part is stated which has a qualification, and there be another which has not, have you not a right to read that part which does not contain the qualification? If one part of a book cannot be understood without a reference to another, then you must set out both; but if it is intelligible without, then you need not.",