The Age Corporation Limited v. Beran [2005] NSWCA 289

Beran v. John Fairfax Publications Pty. Limited [2004] NSWCA 107 Burrows v. Knightly (1987) 10 NSWLR 651 Gordon v. Amalgamated Television Services Pty. Limited [1980] 2 NSWLR 410 Haines v. Australian Broadcasting Corporation (1995) 43 NSWLR 404 Harris v. 718932 Pty. Limited (2003) 56 NSWLR 276 Morris v. Wentworth-Stanley [1999] QB 1004 CASES CITED: Phelps v. Nationwide News Pty. Limited [2001] NSWSC 130 Reichel v. Magrath (1899) 14 App Cas 665 Rippon v. Chilcotin Pty. Limited (2001) 53 NSWLR 198 Rogers v. The Queen (1994) 181 CLR 251 Ron Hodgson (Trading) Pty. Limited v. Belvedere Motors (Hurstville) Pty. Limited [1971] 1 NSWLR 472 Tsvangarai v. Special Broadcasting Service [2002] NSWSC 532

The Age Corporation Limited - claimant PARTIES: Roy Beran - opponent

Mr. P.W. Gray SC with Mr. T.M. Thawley for claimant COUNSEL: Mr. R.G. McHugh for the opponent

Minter Ellison, Sydney for claimant SOLICITORS: Corrs Chambers Westgarth, Sydney for opponent

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40739/04 DC 8720/02

BEAZLEY JA HODGSON JA BROWNIE AJA

Friday 26 August 2005 THE AGE CORPORATION LIMITED V. BERAN Judgment 1 BEAZLEY JA: I agree with Hodgson JA. 2 HODGSON JA: This application for leave to appeal arises from defamation proceedings in the District Court in which the opponent (the Plaintiff) sued the claimant (the Defendant) in respect of matter published in The Age newspaper of 13 February 2001. 3 On 11 August 2004, Ashford DCJ dealt with part of a Notice of Motion brought by the Defendant, and declined to make orders sought by the Defendant that the Plaintiff be directed to plead as one matter all of the matters presently contained in two separate paragraphs of the Statement of Claim. 4 On 15 December 2004, Ashford DCJ dealt with the balance of the Notice of Motion, by which the Defendant sought orders that certain imputations in the Statement of Claim be struck out or that the proceedings be dismissed or permanently stayed; and the primary judge dismissed the Notice of Motion and ordered the Defendant to pay the Plaintiff's costs of it. 5 The Defendant seeks leave to appeal from both decisions. The application for leave has been argued on the basis that, if leave is granted, the appeal will be decided without further argument.

CIRCUMSTANCES 6 On 13 February 2001, material concerning the Plaintiff was published in The Sydney Morning Herald, and similar material was also published in The Age. In both cases, the material was in two sections, with the author of each section being identified as Gerard Ryle. 7 On 2 March 2001, the Plaintiff commenced proceedings in the Supreme Court of New South Wales against John Fairfax Publications Pty. Limited (John Fairfax) in respect of the material published in The Sydney Morning Herald. In the Statement of Claim, the Plaintiff pleaded separately imputations said to arise from one section of the material, imputations said to arise from the other section of the material, and imputations said to arise from the material as a whole. On 4 May 2001, Adams J struck out those parts of the Statement of Claim that alleged imputations said to arise from the two sections of the material considered separately, so that thereafter the claim proceeded solely on the basis of imputations alleged to arise from the whole of the material. 8 On 5 September 2002, a jury in a trial pursuant to s.7A of the Defamation Act found that seven of the eight imputations alleged by the Plaintiff were not conveyed, and that the other one was conveyed but was not defamatory of the Plaintiff. A verdict was then entered for John Fairfax with costs. 9 On 30 September 2002, the Plaintiff appealed against that decision, on the ground that the jury's decisions were perverse, and also on the ground that Adams J had erred in his interlocutory decision. 10 On 4 December 2002, the Plaintiff commenced the subject proceedings against the Defendant in the District Court of New South Wales. In the Statement of Claim in these proceedings, the Plaintiff pleaded separately imputations said to arise from each section of the material in The Age, but did not plead imputations said to arise from the material as a whole. 11 The appeal in the Plaintiff's proceedings against John Fairfax was heard on 6 May 2003; and judgment dismissing his appeal was given on 5 April 2004. 12 On 12 May 2004, the Defendant filed a Notice of Motion in these proceedings seeking orders that certain imputations in the Plaintiff's Statement of Claim be struck out, or that the proceedings be dismissed or permanently stayed. In the course of the hearing of that Notice of Motion, the Defendant with leave amended it to seek an order to the effect that the Plaintiff be directed to plead as one matter all of the matters contained in two paragraphs of the Statement of Claim, that is the two paragraphs alleging imputations as arising from each of the two sections of the material published. 13 That Notice of Motion was disposed of by the orders referred to at the commencement of the judgment.

THE ARTICLES 14 The material published in The Sydney Morning Herald appeared on page 1 and page 4 of that paper. 15 Page 1 contained one section of the material, and part of the other section, which was completed on page 4. The two elements on page 1 took up a large part of the front page of the paper, both appearing under a red banner with the words "A Herald Investigation" printed within it, a headline "The Drug Body-Snatchers" and a subsidiary headline "Australians used as guinea pigs for the global pharmaceutical market"; and a photograph of one Mrs. James was placed extending into the text of the first section and above that part of the second section that appeared on the page. That part had a further headline "No cure, Mrs. James, but thanks for all the money", and a subsidiary headline "Helen James agreed to test a new epilepsy drug, at her cost. Gerard Ryle writes." The Plaintiff was not named in the first section, but was named in the part of the second section appearing on page 1. 16 The first section on page 1 also contained an insert with the words "Take This Body" and "More Reports Page 4"; and a table entitled "The Rise of Clinical Trials in Australia" showing numbers of trials over the ten years from 1990 to 2000, and showing as its source "Therapeutic Goods Administration". 17 The continuation of the second section on page 4 had a headline "No Cure, But Lots of Money", a photograph of the Plaintiff, and a space with large font words "What happens in Australia is that we are often the last port of call. When people cannot recruit patients overseas they say, 'Well let's include Australia'". 18 The material published in The Age appeared on page 1 and page 13 of that paper. 19 On page 1 there was material the text of which was similar to but not identical with the first section of The Sydney Morning Herald material, but there was no material similar to any part of the second section of The Sydney Morning Herald material. The material on page 1 appeared towards the bottom of that page, under the headline "Patients in Soaring Drug Tests"; and at the end of the section there were the words "Features 13: Testing Treatments". Inside the material there was a box with a photograph, a heading "Human Factor", some material unrelated to the material complained of, and concluding "News 6: Genome Project". 20 On page 13, material appeared the text of which was similar to but not identical with the second section of The Sydney Morning Herald material (which in that paper was spread over pages 1 and 4), under the heading "Testing Treatments" and a subsidiary headline "Some patients weren't told the full story when they volunteered to take part in drug tests, writes Gerald Ryle", and with a photograph of Mrs. James accompanied by the words "Guinea pig: Epilepsy sufferer Helen James took part in a drug trial". The Plaintiff was named in this section, but not in the material appearing on page 1. No table similar to that on page 1 of The Sydney Morning Herald appeared on either page 1 or page 13 of The Age.

IMPUTATIONS 21 In its final form, the Plaintiff's Statement of Claim against John Fairfax alleged the following imputations arising from the totality of the material in The Sydney Morning Herald: (a) The Plaintiff behaved in an unethical manner by deliberately concealing from potential participants in drug trials the fact that he would be paid for their participation.

(b) The Plaintiff behaved unethically by failing to inform potential participants in drug trials that he would receive payment for their participation in those trials.

(c) The Plaintiff profiteered from the drug trials which he arranged.

(d) The Plaintiff behaved unethically by permitting drug testing on retarded people.

(e) The Plaintiff is a doctor who sacrificed the interests and genuine medical needs of patients to the interests of international drug companies.

(t) The Plaintiff callously permitted a patient to continue to undergo experimental treatment which caused her great suffering.

(g) The Plaintiff set up a sham ethics committee which included cronies of his because he feared that no truly independent ethics committee would ever approve his practices.

(h) The Plaintiff used Australian patients as guinea pigs in drug trials for multinational drug companies. 22 The jury in those proceedings found that only the imputation in paragraph (c) was conveyed, and also found that this imputation was not defamatory of the Plaintiff. 23 In the proceedings against the Defendant, the Plaintiff alleged the following imputations arising from the material on page 1 of The Age: (a) The Plaintiff put his own financial gain ahead of the rights of his patients.

(b) The Plaintiff, without proper regard for the rights of patients, included intellectually disabled men and women in drug trials, despite their not being able to give consent to being on those trials.

(c) The Plaintiff was unethical in that he included intellectually disabled men and woman in drug trials, despite their not being able to give consent to being on those trials.

(d) The Plaintiff conducted clinical trials on patients without telling them they were on a clinical trial.

(e) The Plaintiff, without proper regard for the rights of the patients, got approval for a drug trial from an Ethics Committee that was not independent.

The Plaintiff also gave the following particulars of identification of the Plaintiff in that material: By virtue of the information provided in the article in The Age of 13 February 2001 entitled "Testing Treatments" which was published on page 13, readers of that article identified the Plaintiff in the matter complained of in Schedule "A".

The Plaintiff alleged the following imputations as arising from the material on page 13 of The Age : (a) The Plaintiff behaved in an unethical manner by deliberately concealing from potential participants in drug trials the fact that he would be paid for their participation.

(b) The Plaintiff profiteered from the drug trials which he arranged.

(c) The Plaintiff behaved unethically by permitting drug testing on retarded people.

(d) The Plaintiff is a doctor who sacrificed the interests and genuine medical needs of patients to the interests of international drug companies.

(e) The Plaintiff callously permitted a patient to continue to undergo an experimental treatment which caused her great suffering.

(f) The Plaintiff set up a sham ethics committee which included cronies of his because he feared that no truly independent ethics committee would ever approve his practices.

(g) The Plaintiff put his own financial gain ahead of the welfare of his patients.

(h) The Plaintiff put his own financial gain ahead of the rights of his patients.

(i) The Plaintiff does not care about the rights of his patients.

(j) The Plaintiff used one of his patients as a guinea pig for a drug trial.

DECISIONS OF THE PRIMARY JUDGE 24 In the first judgment, on the question of whether the Plaintiff should be directed to plead all the material in The Age as one matter, the primary judge noted the Defendant's submission that the material was so connected that the ordinary reader would read it as one publication, and that the two sections were inseparably linked so that they qualified each other. The primary judge referred to the decision of Adams J in the John Fairfax proceedings, to the Court of Appeal's decision (Beran v. John Fairfax Publications Pty. Limited [2004] NSWCA 107), to the decision of Simpson J in Phelps v. Nationwide News Pty. Limited [2001] NSWSC 130, and to the decisions of Hunt J in Burrows v. Knightly (1987) 10 NSWLR 651 and Gordon v. Amalgamated Television Services Pty. Limited [1980] 2 NSWLR 410. The primary judge said the present case was distinguishable from the Plaintiff's case against John Fairfax, and continued: 19. It seems to me on the facts of the present case, the two articles are not so interlinked that permitting them to be pleaded separately is embarrassing. In my view the ordinary reader may well have read them as two separate publications. Their situation in the paper, i.e. on pages 1 and 13, is such that the 'pointer' or 'teaser' at the bottom of the page 1 article may have directed the reader to the next article, but equally, the article may have directed the reasonable reader to the article about the child with leukaemia. I do not believe them to be so inextricably intertwined that they should be classed as one publication and are not sufficiently connected and identified with each other. The plaintiff has the option of pleading in such a situation and has chosen separate publication. I am not satisfied I should allow the defendant the orders sought in respect of the 'strike in' application, and I decline the orders sought. 25 In her second judgment, on the remaining questions in the Notice of Motion, the primary judge noted the Defendant's submissions that the Plaintiff was seeking to agitate again the same questions as had been determined against him in the John Fairfax proceedings, and that Anshun estoppel could apply even when the parties are different. She referred to Haines v. Australian Broadcasting Corporation (1995) 43 NSWLR 404, Morris v. Wentworth-Stanley [1999] QB 1004, Rippon v. Chilcotin Pty. Limited (2001) 53 NSWLR 198, and Harris v. 718932 Pty. Limited (2003) 56 NSWLR 276. The primary judge concluded: It seems to me the articles in each newspaper have substantial differences and whilst a few of the imputations pleaded are substantially the same, in essence I believe the issues are not relevantly the same in the different publications. There is no identity of parties and I do not believe an Anshun estoppel applies to prevent the plaintiff from bringing this action.

GROUNDS OF APPEAL 26 The Defendant seeks leave to appeal on the following grounds: 1. Her Honour erred in the First Judgment: (a) in failing to conclude that the article on page 1 of the Age newspaper of 13 February 2001 headed "Patients in Soaring Drug Tests" was so connected with the article on page 13 of the Age newspaper of 13 February 2001 headed "Testing Treatments" that each was capable of affecting the sense conveyed by the other;

(b) in failing to conclude that the two articles (referred to in (a) above) were so linked as to be capable of qualifying each other because the ordinary reasonable reader might reasonably be expected to have read both articles;

(c) to apply the principles as established in Gordon v Amalgamated Television Services Pry Limited [1980] 2 NSWLR 410; and

(d) in failing to conclude, in the circumstances, that the respondent was obliged to plead the two articles as one publication.

2. Her Honour erred in the Second Judgment: (a) in determining the appellant's application to have the proceedings dismissed or stayed as an abuse of process on the erroneous basis that the respondent was not obliged to plead the two articles (referred to in 1(a) above) as one publication;

(b) in failing to conclude that these proceedings brought by the plaintiff/respondent against the appellant (The Age) raised sufficiently similar issues to those raised by the plaintiff against John Fairfax Publications Pty Limited (Fairfax) in relation to substantially similar articles in The Sydney Morning Herald on the same day, 13 February 2001, which issues have been finally determined adversely to the plaintiff: see Beran v. John Fairfax Publications Pty. Limited [2004] NSWCA 107) as to constitute an abuse of process;

(c) in failing to conclude that the present proceedings were an abuse of process. 27 In my opinion, these grounds raise significant questions, and the interests of justice would best be served by dealing with them at this stage, rather than leaving them to be raised at the conclusion of a trial. It is appropriate to grant leave to appeal, and to move to the substance of these grounds. 28 I will deal in turn with the issues arising under the two judgments.

FIRST JUDGMENT 29 Mr. Gray SC for the Defendant submitted that it was reasonably to be expected that a reader would read both sections of the material in The Age, and each was capable of affecting the sense of the other; and that in those circumstances, the Plaintiff should be required to plead the two sections as one publication, in accordance with long-established principle: see Gordon, Burrows, Beran v. John Fairfax. He submitted it was not necessary for the Defendant to establish that material in one section must have been understood as materially altering or qualifying the complexion of the other, it being sufficient that it may have been so understood: Gordon at 414-5, Tsvangarai v. Special Broadcasting Service [2002] NSWSC 532 at [12]. To the extent that Phelps was inconsistent with these principles, it was wrong. 30 On this question, it is appropriate to review some of the authorities. 31 Prior to the Defamation Act 1974, it was necessary for a plaintiff to plead the very words of an alleged libel; and if the alleged defamatory matter was part of more extensive written material, and if the meaning of this matter alone was not clear or if its complexion was materially altered or qualified by other passages in the more extensive material, it was necessary for the plaintiff to set out all of the passages that affected the sense of the alleged defamatory matter: Ron Hodgson (Trading) Pty. Limited v. Belvedere Motors (Hurstville) Pty. Limited [1971] 1 NSWLR 472 at 476-7. 32 Under the Defamation Act, it is the imputation or imputations made by means of published matter that is the essential element of a plaintiff's cause of action. The Statement of Claim must identify alleged imputations, and identify the published matter by means of which the defendant is alleged to have made those imputations. However, according to Gordon at 413, a plaintiff is obliged to include within its pleadings every passage of the published matter which materially alters or qualifies the complexion of the imputations complained of. 33 Difficult questions can arise where what is published is published in sections that may possibly be considered either as distinct publications or as parts of one overall publication. This was considered in Burrows, in which the plaintiff sued the author and publisher in relation to a four-part serialisation of a book in the Australian newspaper. In the Statement of Claim, the plaintiff pleaded imputations claimed to have been conveyed by the four parts of the serialisation as a whole, and also pleaded imputations claimed to have been conveyed by each of the second, third and fourth parts of the serialisation. The defendants sought to have the latter allegations struck out. 34 On the question whether the plaintiff could rely on imputations said to arise from the four parts of the serialisation as a whole, Hunt J said this: What little authority there is upon the subject supports the correctness of the plaintiff's pleading in the present actions. Where the matter complained of contained in a newspaper refers to other material in the same newspaper, the plaintiff may be required to tender that other material in his case: Thornton v Stephen (1837) 2 Moo & Rob 45 at 46 [174 ER 209 at 209]; provided that such other material is capable of affecting the sense of the matter complained of: Darby v Ousley (1856) 1 H & N 1 at 11-12 [156 ER 1093 at 1097]; Hedley v Barlow (1865) 4 F & F 224 at 228 [176 ER 541 at 542]; Bolton v O'Brien (1885) 16 LR Ir 97 at 109, 110, 119, 129 (cf 117-118, 121); and see Cooke v Hughes (1824) Ry & M 112 at 115 [171 ER 961 at 962]. Where there are two separate publications by the defendant, the plaintiff is entitled to (or may be obliged to) have them considered together in order to determine the sense in which either was understood, provided that they are sufficiently connected and identified with each other: Solomon v Lawson (1846) 8 QB 823 at 840 [115 ER 1084 at 1090]; Smyth v Mackinnon (1897) 34 SLR 762 at 765, 767; Dauncey v Holloway [1901] 2 KB 441 at 443 (the judgments in the Court of Appeal do not deal with this issue); see also Rex v Slaney (1832) 5 C & P 213 at 217-218 [172 ER 944 at 946].

In none of those cases was it suggested that the plaintiff should have pleaded true innuendoes based upon the material which was published separately. In Solomon v Lawson, the Court of Queen's Bench added the further proviso to the second proposition as I have stated it in the last paragraph, that both publications must be pleaded in the one count of the Declaration. That case is directly in point here, and is by itself sufficient basis for upholding the form of the plaintiff's Statements of Claim.

Where a defendant wishes to have the material in a separate publication considered upon the issue of the sense conveyed by the matter which the plaintiff has pleaded, and where that other material is capable of affecting that sense, he may well be entitled to require the plaintiff to plead that other material: cf Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 414-415. I would not, however, hold that such other material could not be considered upon such an issue unless it had first been pleaded by the plaintiff. A good example of the case in which it would be difficult for the plaintiff to plead the other material which is relevant to the sense in which the matter published by the defendant should be understood was Smyth v Mackinnon, where the sense of the defendant's letter was completely altered by reference to the plaintiff's letter to which it was on its face a reply.

In my opinion, the law may be stated in this way. Where the matter of which a plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent, on the face of the matter complained of itself, either an intention on the part of the defendant that it be read together or direct references internally one to the other so that the reader may reasonably be expected to read it together, it is acceptable practice to plead all of the material in the one paragraph of the Statement of Claim and to identify the imputations said to have been conveyed by the material as a whole. It is not necessary to plead each part separately and to add "true" innuendoes where material published on one occasion is relied upon to give a statement published on another occasion a meaning beyond that which it conveys when considered in isolation. 35 On the question whether the plaintiff could, in addition, rely on imputations said to arise from each of three individual parts of the serialisation, or whether to do so was an abuse of process, Hunt J said this: No such abuse was perceived in Cooke v Hughes, where in relation to separate and distinct passages taken from the one publication the plaintiff had pleaded those passages both together in one count and separately in different counts: see at 113 [ER at 962]. Even less could it be an abuse of process where the separate and distinct passages are taken from different publications. In the present action, the plaintiff is entitled to claim damages for the publication of the imputations conveyed to those readers who read all four parts of the serialization as well as damages for the publication of the imputations conveyed to those different readers who read only one of those parts. I can see no abuse of process here. There may be some difficulty involved at the trial in determining approximately how many of the newspaper's readers fell into each group, but that difficulty is one of proof and does not render the pleading an abuse of process.

However, I should emphasise that, although the plaintiff is entitled to plead in this way, it is not a course which he should lightly be advised to follow. Having successfully avoided all of the complications involved in pleading the serialization in the manner for which the defendants contended, he is now making the case unnecessarily complicated by the addition of pars 6, 8 and 10. Pleaders in defamation actions should not overlook either the nature of the litigation in which their clients are involved (which is already sufficiently, if necessarily, complicated) or the nature of the tribunal which will be deciding its result (a jury). The issues in a defamation action should always, so far as possible, be made simple and straightforward, not perplexing and pedantic or convoluted and confusing. In this present action, the plaintiff's pleader should make up his mind whether he wants to proceed upon the basis that the serialization was read as a whole (in which case the complications involved in possible duplication are unnecessary), or upon the basis that each part of the serialization was read separately (in which case they should each be pleaded separately and not together). Common sense would appear to dictate following the former course, for most of the readers could safely be assumed to have accepted the defendants' invitation to read all four parts of the serialization. If the latter course is to be followed, it would in my view be preferable from everyone's point of view (if it is possible) for each part of the serialization to be considered in isolation from the others and without resort to any "true" innuendoes. Only in that way will the action be able to be fought without unnecessary complications. 36 In Phelps, a plaintiff sued in respect of material that appeared in the Weekend Australian in two parts: first, on page 1, a "pointer" or summary, concluding "Full report - page 3"; and second, the full report itself on page 3. The plaintiff pleaded five imputations said to be conveyed by the pointer, five imputations said to be conveyed by the full article, and five imputations said to be conveyed by the combination of the two. The five imputations were in fact the same in each case. The defendants sought to strike out the paragraphs in which the separate parts were pleaded. Simpson J said this at [10]: 10 The issue raises a question about the proper identification, or the boundaries, of "a publication" as distinct from separate publications. There is no rigid dividing line, no categoric test that can be applied to the determination of the boundaries. That is because the examples of publications that may be perceived either as a single entity or as multiple single entities are numerous. There will, no doubt, be many cases where reasonable minds might differ on the proper categorisation, and many where a reasonably minded person would recognise that either classification would be valid. In these cases, the plaintiff has the option as to the manner of pleading. 37 Her Honour then referred to Burrows and two other cases, and continued: 21 The above review of the cases drawn to my attention illustrates the diversity of the circumstances which might give rise to considerations of whether separate but related publications should properly be regarded as one. Related publications may be distinct items contained in a single edition of, for example, a newspaper (Rakimov, Lucas); or may be contained in successive daily or weekly (or other) editions of the same publication (Burrows). No doubt many other situations will arise. One example that comes to mind is the publication of a news item illustrated by a photograph, or a cartoon. Others are episodic items, broadcast on radio or telecast, separated by advertisements or by unrelated segments.

22 Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field. 38 Her Honour concluded as follows: 30 All of this would suggest that the two items could properly be seen as a single publication. But that does not end the matter for present purposes. It is only if that is the only view reasonably open that it would be appropriate to interfere with the way the plaintiff has elected to fashion her case.

31 The plaintiff argued that identification of the publication is a jury question: see Defamation Act 1974, s 7A (3). I do not accept that this is so. The matters assigned to a jury for determination are whether the imputation(s) pleaded is or are conveyed, and if so, whether it is or they are defamatory. It is implicit in this that the jury will also decide any contested issue of publication; that is, whether the defendant in fact published the matter complained of. But this does not require the jury to determine the limits of "the matter complained of". Delineation of "the matter complained of" is, in the first instance, quintessentially a matter for the plaintiff. But the question whether the matter of which the plaintiff complains is reasonably capable of being pleaded as a single matter, or is such that it can only properly be pleaded as multiple publications, is a pleading question and is not, accordingly, to be determined by a jury.

32 The difficulty I now have is whether, while recognising that all the tests I have mentioned would point to the reading of the two items together, the pleading in the way selected by the plaintiff is so untenable, or so unfair, as to permit or warrant the striking out of the pleadings of the two items separately. I perceive no significant unfairness. No real difficulty can arise in the pleading of defences where the imputations pleaded are identical and the accusations contained in the items are, in substance, identical. Any questions of damages will be examined in the light of the publication or publications as a whole.

33 I have considerable sympathy with the defendants' position in this case. It seems to me that pleading as the plaintiff has is cumbersome and adds a degree of complexity to the conduct of the litigation including, particularly, the matters which a jury will be required to determine. But I have concluded that it is a course the plaintiff is entitled to take if she wishes and if she is so advised. 39 In the Plaintiff's proceedings against John Fairfax, Adams J said this in his reasons for striking out the paragraphs relying on separate parts of The Sydney Morning Herald article: 2. The imputations arising out of the whole do not significantly differ from the sum of the imputations arising out of each part. Prima facie, of course, the plaintiff is entitled to plead the matter as it appears to be best for the plaintiff's case. Rightly Mr McClintock of Senior Counsel tor the plaintiff submits that the defendant cannot succeed in striking out the separation unless it can show embarrassment or prejudice. The principles are, if I may say so with respect, stated succinctly but comprehensively by her Honour Simpson J in Phelps v Nationwide News Pty. Ltd. & Anor. [2001] NSWSC 130. Having regard to the character of the two parts and the nature of the publications as "A Herald Investigation" I am satisfied that in this case an entirely unnecessary complexity would be introduced into the trial by pleadings which require the jury to consider the article as proposed by the plaintiff.

3. There will always be a class of readers who read the whole of the material. That being so I cannot see how it is either necessary or desirable that the jury should consider whether there was also a class of readers who read any part, and another class of readers who read only the other part. Requiring them to do so creates a trial which is embarrassing to the defendant in the sense that it requires the defendant to respond to immaterial issues. 40 In the Court of Appeal (Beran v. John Fairfax), McColl JA (which whom Mason P and Beazley JA agreed) discussed Ron Hodgson, Gordon, Burrows and Tsvangirai; and then said of Phelps that it was an application of the principles in those cases. McColl JA set out paragraph [22] from Phelps, and continued: 55 Adams J referred to Phelps and clearly concluded that the pleading of the matter complained of as separate publications was impermissible because the two articles were so interlinked that permitting them to be pleaded separately was embarrassing: Supreme Court Rules Part 15 rule 26.

56 In my view his Honour's decision was correct. The manner in which the two articles were presented was such that the ordinary reader would have read them as one publication. They were inseparably linked. Each qualified the other. It was incumbent upon the appellant to include within his pleading every passage which materially altered or qualified the complexion of the imputations of which he complained. It was, in my view, essential in order to discharge that obligation that he pleaded the two articles as one publication.

57 I would also reject the appellant's complaint that in striking-out paras 4, 5 and 6, Adams J determined a factual question which was truly the province of the jury. Simpson J rejected that argument in Phelps v Nationwide News Pty Limited , (above at [31]). I agree with her Honour that the identification of the publication is not a jury question. The authorities to which I have referred make it clear that the issue of how the publication should be pleaded is properly the province of the court. The function of a jury is confined to whether the matter complained of carries the imputation and, if it does, whether that imputation is defamatory: s 7A(3) Defamation Act 1974 (NSW). 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. 44 In my opinion, this is not a case where pleading the two sections separately in this way introduces such complexity or confusion that it should not be permitted. This was not held to be the case in Burrows or Phelps despite the concerns expressed in those cases by Hunt J and Simpson J. In addition, in this case the Plaintiff has avoided the additional complexity of also pleading the two sections as one publication. 45 Mr. Gray placed some reliance on the circumstance that, in relation to the first section, the Plaintiff relied on the naming of the Plaintiff in the second section to complete the identification of the Plaintiff in the first section. In my opinion, this does not affect the issue. In any case where a plaintiff is not named in the publication sued on, the plaintiff may rely on other circumstances to show that at least some people would identify the plaintiff as being the person referred to in that publication. It may then be open for the defendant to submit that anyone who knew enough about the plaintiff to identify the plaintiff as the person referred to would also know enough to understand what was said about the plaintiff in a way not defamatory of the plaintiff. The Plaintiff's reliance in this case on a reader of the first section as having read at least some of the second section of what was published, in order to identify the Plaintiff as the person referred in the first section, would open the way for a submission from the Defendant that persons who read the section sufficiently for this purpose would also, by reason of other things in the second section, have read the first section in a particular way. This does not in my opinion affect the question whether the Plaintiff can rely on the first section as a publication without including it in the whole constituted by both sections. 46 For those reasons, in my opinion the attack on the first judgment must fail.

SECOND JUDGMENT 47 Mr. Gray submitted that the Plaintiff was seeking to have re-litigated substantially the same issues as had been determined against him in the proceedings against John Fairfax. Even though the parties were different, this was still an abuse of process: Reichel v. Magrath (1899) 14 App Cas 665, Haines. The issues did not have to be literally identical for this to apply: Haines, Rippon. Rippon in fact showed that minor differences between issues can be bridged by reference to the Anshun principle. 48 Mr. Gray further submitted that if the case against the Defendant was allowed to continue, there was a risk of "the scandal of conflicting decisions": Rogers v. The Queen (1994) 181 CLR 251 at 273-4. Another jury might, despite the overwhelming similarities of the publications, take a different view as to whether imputations were conveyed (even the six that are identical as between the two sets of proceedings) and whether the imputation found by the jury in the John Fairfax case to have been made was defamatory. 49 I accept that it can be an abuse of process for a plaintiff to seek to re-litigate, even against a different party, issues decided against that plaintiff. For example, if the Plaintiff now brought proceedings against the author of the articles, or against some distributor of The Sydney Morning Herald, in respect of the publication of the material in The Sydney Morning Herald, I believe that would be an abuse of process, even if the Plaintiff sought to plead the imputations a little differently. 50 However, the Plaintiff in this case does not sue in respect of the publication in The Sydney Morning Herald, but in respect of the publication of similar but not identical material in The Age. We have not been referred to any case where proceedings have been stayed or dismissed because of the failure of earlier proceedings against another party in respect of a different published item, purely on the basis of similarity of material in that item to material in the item complained of in the later proceedings. Moreover, there are differences in the text between the two publications, some of which could be considered significant and supportive of the Plaintiff's case. There are also differences in the headlines and the layout. The circumstance that the Plaintiff has been permitted to rely on the two parts of the publication in The Age as separate publications is itself a difference between the two proceedings, that could be regarded as of substance. 51 In my opinion, the possibility of the scandal of conflicting judgments is not a matter that weighs heavily in this case. Not only are there differences between the two proceedings, as I have noted, but there is also the consideration, pointed out by Brownie AJA, that if the Plaintiff had succeeded against John Fairfax and later sued the Defendant, it is inconceivable that the Defendant could have been inhibited in defending the proceedings against it on the ground that to do so could lead to the scandal of conflicting judgments. 52 As submitted by Mr. McHugh for the Plaintiff, to dismiss or permanently stay proceedings without a hearing, particularly on the application of a defendant against which proceedings have not previously been brought, is an extreme step. In my opinion, the Defendant has fallen far short of showing that the primary judge erred in failing to take that step. In any event, in my opinion the issues in the two proceedings are not so similar that these proceedings should be considered an abuse of process. 53 Accordingly, the attack on the second judgment also fails.

ORDERS 54 For those reasons, in my opinion the following orders should be made: 1. Leave to appeal granted, Notice of Appeal to be filed within 7 days. 2. Appeal dismissed with costs. 55 BROWNIE AJA: I agree with Hodgson JA. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.