Plato Films Ltd v Speidel [1961] AC 1090

Turner v Bulletin Newspaper Co Pty Ltd [1974] HCA 25; (1974) 131 CLR 69

1 HASLUCK J: The plaintiff, Douglas James Shave, has advanced a claim in defamation against the defendant, West Australian Newspapers Ltd. The action was commenced by writ of summons issued on 16 August 2000. Since then the pleadings have been amended on various occasions and other interlocutory steps have been taken including the provision of discovery. On 3 September 2002 the plaintiff was ordered by a Registrar of the Supreme Court to enter the action for trial by 1 October 2002.

2 The action has not been entered for trial in compliance with the Registrar's order for reasons which I will turn to later. In the meantime, the plaintiff has applied to strike out portions of the defendant's re-amended statement of defence and has applied also for leave to amend the reply. These two applications come before me against the background I have just described. The plaintiff also sought leave to extend the time within which to bring his application to strike out.

3 The plaintiff pleads in his statement of claim that at the time the action was commenced he was a Member of the Legislative Assembly of Western Australia and Minister for Lands, Fair Trading, Parliamentary and Electoral Affairs. He says in par 3 of the claim that the State Government of Western Australia commissioned Mr Ivan Gunning to hold a special inquiry into the operation of the Finance Brokers Supervisory Board. On 21 June 2000 the plaintiff gave evidence to the Gunning Inquiry.

4 The plaintiff pleads that in the country edition of the West Australian Newspaper of 11 August 2000 the defendant published of and concerning him certain allegedly defamatory words including the heading: "Probe 'was misled' by Minister". The report refers to a debate in the Legislative Assembly on the day prior to the report in the course of which, according to the report, the plaintiff conceded that he may have been told at a meeting that one of his relatives had a problem with a broker. In that context, he referred to evidence he gave to the Gunning Inquiry.

5 The newspaper article complained of includes the assertion that "FAIR Trading Minister Doug Shave and his adviser, Bill Mitchell, have been accused of misleading the Gunning inquiry." It also includes a passage in which the plaintiff is reported as saying that the Gunning record cleared him of favouring an ex-relative.

6 The plaintiff pleads in par 5 of the claim that the words complained of in their natural and ordinary meaning meant and were understood to mean that Mr Shave had knowingly given misleading evidence to the Gunning Inquiry (par 5.1) and, alternatively, that Mr Shave was suspected on reasonable grounds of having knowingly given misleading evidence to the Gunning Inquiry (par 5.2). The plaintiff pleads that he has been injured in his reputation and sets out certain facts which will be relied upon to support a claim for aggravated damages.

7 By its re-amended statement of defence the defendant denies that the words complained of bore, or were understood to bear, or were capable of bearing, the meanings pleaded by the plaintiff or any meaning defamatory of the plaintiff.

8 More importantly, for present purposes, the defendant pleads in par 5 that if the article is found to be defamatory of the plaintiff it was published on an occasion of qualified privilege.

9 Particulars in support of the privilege plea include that the plaintiff was at all material times a Member of Parliament and the Minister for Fair Trading (5(a)); the article referred to the state of the finance broking industry in Western Australia and the loss of money invested by members of the public (5(b)); the article related to the accountability of the plaintiff as a Member of Parliament and Minister for Fair Trading (5(d)); publication was substantially confined to the State of Western Australia and was published predominantly to persons who were enrolled as electors of the Legislative Assembly (5(f)); the article related to matters relevant to electors (5(g)); the article is a communication made to the public on a government or political matter (5(h)); the defendant was under a duty to disseminate, and the readers of its newspaper had a legitimate interest in receiving the words contained in the article (5(i)). The defendant goes on to set out certain particulars of reasonableness bearing upon the circumstances of publication.

10 The plaintiff's application to strike out is directed to sub-paragraphs (c) and (e) of the particulars of qualified privilege in par 5 of the claim. The sub-paragraphs in question contain assertions that:

"(c) the Article related to the plaintiff in his capacity as the Minister for Fair Trading and the performance by the plaintiff of his functions and duties;

...

(e) the plaintiff's performance as the Minister for Fair Trading has been the subject of significant discussion and debate in the Legislative Assembly of Western Australia."

11 The plaintiff also seeks to strike out par 2.7 of the defendant's further and better particulars of defence dated 14 August 2001. In that paragraph, in response to a query as to the respects in which, or the basis upon which it was said, that the article related to the performance by the plaintiff of his functions and duties, the defendant said that the article related to the plaintiff's performance as a Member of Parliament, in the manner and nature of his response to questions asked of him in the Legislative Assembly.

12 The plaintiff also raises an issue concerning par 8(b) of the defence in which the defendant asserts that if the imputations complained of are found to be defamatory the plaintiff is not entitled to any award of damages owing to his bad reputation. The defendant pleads in par 8(b) that the defendant proposes to adduce evidence of the plaintiff's bad reputation at trial, being a reputation in Western Australia as a Minister of the Crown who had inadequately and incompetently discharged his duties as such.

13 I will deal with each of these matters in turn. However, I note in passing that the application to strike out is opposed by the defendant not only upon the ground that it lacks merit but also upon the ground that the plaintiff is in delay.

14 Order 20 rule 19 of the Rules of the Supreme Court provides that the Court may strike out any pleading on the ground that it discloses no reasonable defence or may prejudice, embarrass or delay the fair trial of the action. For the purposes of an application of this kind the facts alleged must be accepted as true. The rule concerning whether a reasonable defence has been disclosed is intended to apply only to cases which are untenable or really not arguable.

15 The common law recognises that there are certain privileged occasions upon which, on the grounds of public policy and convenience, a person may make statements about another which are defamatory and in fact untrue. On such occasions a person is protected if the statement was fairly warranted by the occasion and was not made with malice, that is to say, with some indirect or improper motive or with knowledge of its untruth.

16 Privileged occasions are those where the maker of the statement has a duty to make the statement and the recipient has a corresponding interest to receive it: Adam v Ward [1917] AC 309. In most cases a qualified privilege will not be available to a newspaper or a television station because there is no community of interest between the publisher and the general public: Smith's Newspapers Ltd v Becker [1932] HCA 39; (1932) 47 CLR 279 at 304; Telegraph Newspaper Co Ltd v Bedford [1934] HCA 15; (1934) 50 CLR 632 at 658. Where a person responds to an attack by publishing his response in a specialised journal with a limited circulation then there may be a community of interest sufficient to ground a plea of qualified privilege, provided the language used does not exceed the requirements of the occasion: Marks v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 14 WAR 360.

17 In Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 the High Court marked out an extension to the defence of qualified privilege in regard to political discussion. The categories of qualified privilege must now be recognised as protecting a communication made to the public on a government or political matter.

18 A publisher relying on the Lange category of qualified privilege must establish that its conduct in making the publication was reasonable in all the circumstances. The defendant will usually need to establish that it had reasonable grounds for believing the defamatory imputation was true, took proper steps so far as they were reasonably open to verify the accuracy of the material, and did not believe the imputation to be untrue.

19 The High Court in Lange (supra) put the matter in this way at p 574:

"Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond."

20 Political discussion includes discussion relating to the relationship between citizens and the policies, structure, composition and activities of government and therefore extends to debate about the role of prosecutors as an arm of government: Cock v Hughes [2002] WASC 108. It is said to include discussion about the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office: Theophanous v The Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 124; Popovic v Herald and Weekly Times Ltd [2002] VSC 174.

21 In Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210 the Full Court in this State held that an arguable Lange defence had been raised as to one of the letters in question, namely, a pro forma letter of protest to the Minister for the Environment about traffic in the vicinity of the plaintiff's premises. The letter was arguably relevant to the exercise by the Minister of her public functions and powers. It was a matter which the general public had a legitimate interest in receiving information about.

22 The Full Court held further that a letter of protest to the plaintiff did not fall within the Lange defence. It was held also that as the publisher must prove his conduct was reasonable, the defence will not be sufficiently pleaded unless there is an express averment that the making of the publication was reasonable within the meaning adumbrated in Lange (supra) at 574.

23 As to the issue concerning delay, O 20 r 19(3) provides that any application to strike out a pleading must be made within 21 days of the service of that pleading. Applications to strike out pleadings should be brought promptly: Roberman v Australian Broadcasting Corporation [2002] WASC 301 at par 56; Moir v Flint & Anor [2002] WASC 48 at par 20.

24 Justice Steytler indicated in Roberman v Australian Broadcasting Corporation (supra) at par 56 and par 57 that the purpose underlying the time limit is that of ensuring that an application concerning the pleadings can be disposed of promptly so that the action can be continued without further interruption. In a case of delay, objections to a pleading should only be considered in order to see whether there are problems which are likely to be productive of serious problems in, or leading up to the trial. To the extent that there are such problems, it is preferable for them to be dealt with notwithstanding the delay.

25 Where a party invites the Court to exercise its discretion extending the time limit, the party in question must provide the Court with an evidentiary basis for doing so by proffering some explanation for the delay. In the absence of such an explanation, there is no basis for the exercise of judicial discretion in the applicant's favour: Ratnam v Cumarasamy [1964] 3 All ER 933 at 935.

26 Further, the principles of case flow management, require the Court to take a firm approach to the limits imposed by the Rules: Rasile v Collie Mail Distributions Newspapers Ltd, unreported; SCt of WA; Library No 930200; 16 April 1993; Vickers v Mayne, unreported; SCt of WA; Library No 980391; 17 July 1998. However, it is necessary to keep in mind the precept reflected in the State of Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 that case management principles should not be applied to prevent a party litigating an issue which was fairly arguable.

27 The defendant has included with its written submission a detailed chronology which shows that the action has been in progress for 21/2 years and there have been many interlocutory steps along the way. The defendant also points to and relies upon the plaintiff's failure to comply with the order made by the Registrar on 3 September 2002 that the action was to be entered for trial by the plaintiff on 1 October 2002. The defendant says that no sufficient explanation has been provided for the delay in bringing the present application to strike out and related application for leave to amend reply, especially in circumstances where the delay is said to be inordinate.

28 Counsel for the defendant drew attention to certain specific features of the chronology which were said to weigh against the application to extend time and the related applications. He pointed out that par 5 and the sub-paragraphs under attack have been in their existing form for more than two years without any application to strike out being made. Moreover, par 5(c) in particular, has been the subject of a request for particulars which was answered 18 months ago on 14 August 2001 as demonstrated by the presence on the Court record of Answer 2.7 concerning that plea to which objection is now taken.

29 Counsel referred also to a hearing before Steytler J on 27 November 2001 on which occasion the defendant was granted leave to amend the defence in the manner now reflected in par 8(b), being the defendant's plea concerning the plaintiff's alleged bad reputation which is now under attack. Counsel submits that if any challenge to the adequacy of par 8(b) was to be mounted, it should have been mounted at that time.

30 The defendant submits that case management principles require the Court to take a firm approach to the time limits imposed by the Rules and by any orders relating to the same. It is said further that the plaintiff's objection to the pleadings will not raise any serious problems in the lead up to trial. Most of the matters brought into issue by the two applications before the Court were characterised by the defendant as matters that should properly be ventilated at trial.

31 The plaintiff relies upon the affidavit of Georgina Sarah Pitt sworn 9 April 2003 in response to the chronology of events filed by the defendant. The deponent says that she is a member of the firm of solicitors engaged by the plaintiff and has the day to day conduct of the action on the plaintiff's behalf. She goes on to say in par 3 and par 4 of her affidavit:

"3. I refer to the 'Defendant's chronology of action relevant to the Plaintiff's applications' filed with its outline of submissions. As to that:

3.1 the matter was ordered to be entered for trial by the 1st October 2002. The matter was not entered for trial by that date because senior counsel had commitments in the High Court and could not finalise the Advice on Evidence. The Court and the Defendant's solicitors were made aware of the cause of the delay in correspondence, and there was no objection to it by the Defendant;

3.2 on the 11th November 2002, the Defendant brought a motion for leave to issue a subpoena for production to the Department of Consumer and Employment Protection (formerly the Ministry of Fair Trading). I am advised by Ms Janine Wilkinson, of Messrs Edwards Wallace, and I verily believe, that the return date of the subpoena was adjourned from time to time because the department had difficulty in locating all the documents, and there was correspondence between the Defendant's solicitors and the department regard the scope of the subpoena. The subpoena was eventually returned on the 14th January 2003, and a limited class of documents produced;

3.3 on the 19th December 2002, the Plaintiff's solicitors raised the issue of the relevance of certain portions of the Defendant's defence and further and better particulars, which is the subject of the separate application to strike out portions of the defence and further and better particulars. The period between the 19th December 2002 and 13 February 2003 (the date on which the application was issued) was taken up with conferral, pursuant to the requirements of Order 59 Rule 9 of the Supreme Court Rules;

3.4 on the 13th January 2003, the Plaintiff's solicitors advised the Defendant's solicitors that the Plaintiff proposed to amend his reply, and provided a copy of the minute of amended reply. They are the same amendments for which the Plaintiff now seeks leave. From the 13th January 2003 to the 6th February 2003 the parties were conferring as required by Order 59 Rule 9.

4. Once the Defendant had filed an application for leave to issue a subpoena, it would have been inappropriate to enter the matter for trial until the documents produced on subpoena had been evaluated. By then, these applications had been raised with the Defendant."

32 In my view, the facts and matters referred to in the Pitt affidavit go principally to explain the reason why the action has not been entered for trial in the manner contemplated by the Registrar's order of 3 September 2002. It is necessary and desirable that such an explanation be provided and the matters relied upon by the plaintiff may be sufficient to immunise the plaintiff against any adverse consequences that might otherwise flow from non-compliance with the order.

33 However, I am not satisfied that the facts and matters relied on are sufficient to explain the delay in making the application to strike out that is presently before me or to justify an extension of time. I cannot see that the issue of a subpoena is a matter which prevents a party taking some step to improve the pleadings.

34 Further, and in any event, as I noted in earlier discussion, the statement of defence has been in its present form for a considerable period of time and the defendant has had an ample opportunity to raise any issues concerning the same. There is considerable force in the submission made by counsel for the defendant that any challenge to the adequacy of par 8(b) of the defence or otherwise as to the bad reputation issue should have been attended to soon after the hearing before Steytler J on 27 November 2001 when leave to plead in that form was allowed.

35 Accordingly, I consider that there has been an inordinate delay on the part of the plaintiff in seeking to raise the issues the subject of the applications before me. Having regard to the reasoning of the High Court in State of Queensland v J L Holdings Pty Ltd (supra) and the reasoning of Steytler J in Roberman v Australian Broadcasting Corporation (supra), I am conscious that, even in a case of inordinate delay, case management principles should not be applied to prevent a party litigating an issue which is fairly arguable or from challenging the adequacy of a pleading, if the pleading in its existing form is likely to cause serious problems in or leading up to the trial. However, for the reasons given below I do not consider that there is sufficient merit in the arguments advanced by the plaintiff in support of the application to strike out to outweigh the inordinate delay on the plaintiff's part in seeking to strike out par 5(c) and par 5(e) of the defence.

36 It follows that the extension of time sought by the plaintiff will not be granted and the plaintiff's application to strike out is dismissed upon the ground of delay. Nonetheless, it is necessary and desirable that I should address the issues raised by the application to strike out, for, as I have indicated, my response to the merits of the application plays a part in the conclusion I have arrived at in regard to the issue of delay. Further, and in any event, I consider that, even if I be wrong in regard to the issue of delay, the application to strike out should not be allowed.

37 The principal submission made by counsel for the plaintiff in regard to that aspect of the qualified privilege plea reflected in par 5(c) and par 5(e) is that the article complained of does not relate to the plaintiff in his capacity as the Minister for Fair Trading. Counsel submits that upon a close reading of the article it is apparent that the attack concerns the plaintiff's integrity, and does not bear upon his performance, either as a Member of Parliament or as a Minister. It follows that the matters particularised at (c) and (e) should be struck out because they have nothing to do with the qualified privilege which is claimed.

38 According to counsel for the plaintiff sub-paragraph (c) suggests that the article related to the plaintiff in his capacity as the Minister for Fair Trading and the performance by the plaintiff of his functions and duties. Sub-paragraph (e) asserts that the plaintiff's performance as the Minister for Fair Trading has been the subject of significant discussion and debate in the Legislative Assembly of Western Australia. Particulars of this kind, counsel for the plaintiff contends, cannot be utilised to support a plea that the article complained of was published on an occasion of qualified privilege. Put shortly, the article did not relate to the manner in which the plaintiff may or may not have carried out his ministerial duties. It related to the honesty of evidence given by the plaintiff to the Inquiry. Further, the Inquiry did not involve an examination as to the adequacy or otherwise of the performance by the plaintiff of his ministerial portfolio.

39 To my mind, the article arguably concerns the role of the plaintiff as a governmental minister and arguably has some bearing upon his capacity as a Minister. The article commences with a heading which suggests that the Gunning Inquiry or probe may have been misled by the plaintiff as a person who was a Minister. The first part of the article contains various indications that reference is being made to the plaintiff not simply as an individual who gave evidence before the Gunning Inquiry but to the plaintiff as a person with a special status, namely, that of Minister. This view of the matter is underpinned by an explicit reference to the plaintiff as Fair Trading Minister and his adviser, Mr Mitchell.

40 I noted in earlier discussion that the decided cases suggest that the question of whether a person is fit to hold public office is a matter that lies within the ambit of political discussion with the result that a plea of privilege pursuant to the Lange rule is available. To my mind, a persuasive distinction cannot be drawn in the circumstances of this case between the standing of the plaintiff as a person who gave evidence to the Inquiry and his status as a person who is holding office as a parliamentarian and Minister at the time the evidence was provided. The article cannot be regarded as confined to the narrow question of the plaintiff's personal integrity. It is in the nature of political discussion that there may be a degree of speculation as to whether a practising politician acted in a certain way under the influence of political considerations such as policies or partisan loyalty or pursuant to private concerns.

41 Accordingly, even if it be held that the plaintiff is entitled to pursue his application to strike out, notwithstanding the delay referred to earlier, I am not persuaded that sub-paragraphs (c) and (e) of par 5 and par 2.7 of the defendant's answer to the request for further and better particulars should be struck out in the manner contended for by the plaintiff.

43 The defendant seeks to contend in par 8(b) of the statement of defence that even if the imputations which are contended for are found to be defamatory, the plaintiff is not entitled to any award of damages owing to his bad reputation. The defendant proposes to adduce evidence of the plaintiff's alleged bad reputation, that is to say, a reputation in Western Australia that the plaintiff, as a Minister of the Crown, inadequately and incompetently discharged his duties.

44 The principles concerning bad reputation are referred to in Gatley on Libel and Slander (9th ed) at par 33.27. The learned author notes that evidence of general bad reputation is admissible in mitigation of damages in certain circumstances on the grounds that the damage which a plaintiff has sustained will depend on the estimation in which he was previously held. On principle, therefore, it would seem the general evidence of reputation should be admitted. However, evidence of general bad reputation must be confined to the sector of the plaintiff's character relevant to the libel. For example, if the libel charges the plaintiff with treachery, evidence that he has a reputation for loose morals would be inadmissible in mitigation of damages.

45 One finds a wide ranging discussion of the relevant principles in two recent decisions of the Court of Appeal of New South Wales, namely, Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430 and O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89. These cases suggest that the rule whereby evidence of bad reputation must be confined to the relevant sector of a plaintiff's reputation means merely that the evidence, to be admissible, must be relevant to that part of the plaintiff's reputation capable of being harmed by the defamatory material.

46 In O'Hagan v Nationwide News Pty Ltd (supra) the plaintiff alleged that he had been defamed by an imputation that he arranged with another person, for the price of $10,000, to have a third person murdered. The defendant pleaded, in mitigation of damages, that the plaintiff had a reputation as a policeman who had pleaded guilty to charges of misconduct, who had been suspended from duty after being charged with conspiracy to pervert the course of justice and who had fabricated evidence and who was generally dishonest and corrupt.

47 The plaintiff submitted that the relevant sector was the plaintiff's reputation for activities of violence. However, the Court of Appeal upheld the defendant's argument that the relevant sector was conduct as a police officer. Meagher JA remarked on the difficulties in determining the relevant sector and the absence in the authorities of reliable guidelines that could assist in the inquiry. He determined the relevant sector, in effect, by considering the overall defamatory impact of the imputation pleaded. The defamation was directed at the very essence of the office of a police officer, that is to say, as one who would usually be engaged in protecting lives, hence, the relevant sector was the plaintiff's reputation as a police officer generally.

48 In the McBride case (supra) Ipp J had this to say at par 36:

"The reputation of a medical practitioner, insofar as it relates to his dealings with his patients, is wide in scope, and it would, ordinarily, provide considerable latitude for a defendant who wished to allege material in mitigation of damage. But, in my opinion, such a reputation is far removed from the reputation of a person, who, for example, conducts laboratory tests on animals for the purposes of determining their reaction to experimental drugs. A person who occupies himself at times as a medical practitioner and at times as an experimental scientist, is conducting two separate occupations, although they may not be entirely unrelated to each other. The reputation that such a person would gain for care and compassion to his patients and for his dedication to the therapeutic ideals of the practice of medicine would be entirely independent of his reputation for careful, innovative and honest scientific research."

49 When I apply the reasoning reflected in these authorities to the circumstances of the present case, I consider that the bad reputation plea set out in par 8(b) of the statement of defence cannot be described as untenable. To my mind, as appears from earlier discussion, the article discussed the evidence given by the plaintiff in his capacity as the then Minister for Fair Trading at the Gunning Inquiry. The plaintiff was called to give evidence to the Gunning Inquiry essentially because of his position as a Minister of the Crown. To attempt to sever the plaintiff's reputation from his position as a Minister of the Crown would result in an artificial construction of the sector of reputation. The scope of the relevant sector should not be limited by the scope of the imputations pleaded. It is in the nature of public life that the various facets of a leading politician's personality and character will be constantly under scrutiny. It therefore becomes difficult to argue that criticisms and imputations of such a person are confined to a particular sector.

50 Accordingly, even if it be held that time should be extended, I do not consider that the application to strike out par 8(b) of the statement of defence should succeed.

51 The plaintiff has applied for leave to amend his reply in terms of a minute of amended reply dated 6 February 2003. The effect of the application, if allowed, would be to introduce a new par 2 in these terms:

"2. The plaintiff refers to paragraph 5 and the particulars of reasonableness sub-joined thereto and says that:

2.1 the defendant's servant or agent, Mr Michael Southwell ('Mr Southwell') took no steps or no effective or reasonable steps to discuss the Article or the matters raised in paragraph 7 of the re-amended defence with the plaintiff prior to the publication of the Article;

2.2 the Plaintiff was given no opportunity by the defendant to comment on the Article or its contents prior to publication;

2.3 the defendant took no steps to verify the contents of the Article independently of Mr Southwell;

2.4 the defendant knew at the time it published the Article that:-

2.4.1 Mr Southwell has been the subject of formal internal discipline by the defendant in relation to inaccurate articles submitted by him for publication;

2.4.2 the defendant has published a considerable number of corrections and apologies as a result of inaccuracies in articles written by Mr Southwell and published by the defendant;

2.4.3 the defendant has received numerous complaints over a period of time about Mr Southwell and the accuracy of articles he has written and published by the defendant.

Further particulars will be provided after discovery and inspection."

52 I mentioned in earlier discussion that, in the course of advancing a defence of qualified privilege in regard to political discussion pursuant to the Lange (supra) category of qualified privilege, the statement of defence includes a plea that the defendant acted reasonably in publishing the article. Particulars of reasonableness are provided and include reference to the defendant's belief in the truth of the article, the taking of proper steps, so far as was reasonably open, to verify the accuracy of the words published in the article, and the publication of the plaintiff's response made in the Legislative Council on 10 August 2000 in the article.

53 In effect, the proposed par 2 in the minute of amended reply seeks to set out facts and matters which bear upon the reasonableness of the defendant's conduct. Thus, it is said that the defendant's servant, Mr Southwell, took no reasonable steps to discuss the article with the plaintiff prior to publication or to verify the contents of the article independently of Mr Southwell. The proposed amendment sets up an additional basis upon which the defendant's defence of reasonableness is sought to be controverted.

54 Counsel for the defendant submits that in Lange (supra) the High Court enunciated two separate requirements potentially relevant to the plea of reasonableness. The first was the obligation, qualified by the preface "as a general rule", that the defendant take proper steps to verify the accuracy of the material. The second requirement is the obligation to seek and publish a response from the person defamed unless it was impracticable or unnecessary.

55 Counsel for the defendant submits that it is not clear which of the two obligations enunciated by the High Court is being addressed by par 2.1. If it is the obligation addressed by par 2.2 the plea is repetitive. If it is the obligation to take proper steps by way of verification, then the plea as formulated does not properly address that issue. Furthermore, par 2.1 only addresses alleged omissions of the reporter, Mr Southwell, and not the defendant. It is said the plea in its present form is embarrassing.

56 The defendant submits further that the plea in par 2.3 is irrelevant and embarrassing. It is not a plea of or concerning the defendant's conduct. It is merely a plea that the defendant failed to take steps independently of Mr Southwell to verify the material contained in the article. It is said the defendant is entitled to know if it is in fact being asserted by the plaintiff that the steps taken by Mr Southwell were deficient, and if so, in what respect.

57 The defendant contends that par 2.4 of the reply is irrelevant, and if allowed to stand would raise a number of false issues. The conduct of the defendant, or Mr Southwell on other occasions, in respect of other articles is irrelevant to the matters in issue. The reasonableness of the defendant's conduct is to be considered in the context of publication of the article the subject of this action and not any other publications.

58 The defendant submits that to allow the plea to stand would impact on discovery and the course of evidence at trial. The plea appears to be an attempt to use the interlocutory procedures of the Court to fish for material outside the scope of the matters relevant to the action.

59 In determining whether leave to amend should be allowed, independently of the issue of delay, much will depend on the adequacy of the proposed pleading. An amendment should not be allowed if the proposed plea is embarrassing. In the present case, I consider that the proposed amendment is embarrassing. As to par 2.4, I consider that the matters pleaded are not sufficiently related to the matters in issue in these proceedings. As to pars 2.1 to 2.3 inclusive I consider that for the reasons outlined above on behalf of the defendant the proposed pleading does not make it sufficiently clear which facets of the reasonableness plea are being addressed. Accordingly, I consider that leave to amend in the manner proposed should not be allowed.

60 In summary, then, I will order that in respect of each application the plaintiff be allowed to file an amended chambers summons in which leave is sought to bring the application out of time. However, I consider that in each case the plaintiff's application for an extension of time should not be allowed. It follows from this and from my additional reasons that the applications brought by the plaintiff to strike out and for leave to amend the reply will be dismissed. I will hear from the parties as to whether any further orders or directions are required.