Warne v Herald & Weekly Times Ltd [2000] VSC 210

5. The original statement of claim had the whole of the article (including the headline, the sub-headlines, photographs of the plaintiff and another cricketer, Mark Waugh, and the full text) annexed to it. However, the whole of the article was not incorporated into the pleading. Paragraph 8 of the statement of claim pleaded the headlines (three) and set them out as follows: "New claims on bookie scandal", "Probe on Aussie Test cricket stars" and "Match Fix", the latter being the lead headline. Paragraph 8 also set out that part of the text of the article appearing on the same page as the headlines and the photographs (page 1 of the newspaper) including the statement that Warne and Waugh had repeatedly denied ever being involved in match fixing. It did not set out the balance of the text. This statement of claim pleaded nine imputations said to arise from the article. The defendant objected to some of these imputations which led to a proposed amended statement of claim being filed which was the subject of argument in a hearing before me. Two of the imputations pleaded were abandoned and I struck out three others, on 9 April 1999. The plaintiff then made some further non-contentious alterations to the remnant of the imputations, being reduced to four in number. The defendant's defence ( 10 May 1999) denied that the words bore the meanings contended for by the plaintiff and pleaded its own meanings said to arise (the so-called Polly Peck plea). It also raised the defences of fair comment and qualified privilege, and statutory defences arising under the legislation in the States of New South Wales, Queensland, Western Australia, Tasmania and the Northern Territory. The defendant thus did not at that time raise any issue concerning the failure of the plaintiff to plead the whole of the published words in paragraph 8. Later, however, it amended paragraph 8 of its defence (the original defence having declined to admit publication for the article) to admit publication of it, subject to production of and reference to the full article. This presumably occurred (the amendment was consented to) because the plaintiff had not set out the whole of the text of the article in paragraph 8 of the statement of claim.

8. On 12 November 1999, the plaintiff obtained leave to file and serve a further amended statement of claim (removing as defendants two journalists who had originally been joined as co-defendants) which amended statement of claim removed paragraphs 4 to 9 of the original statement of claim, substituting paragraphs which in effect pleaded, as the basis of the plaintiff's claim, the "Match Fix" headline, the two sub-headlines and the photographs (all of which were now pleaded as "the said words and picture"). Thus, there was no part of the pleading which set out and relied on the balance of the published words. The imputations were also then trimmed down to three as follows -

"5. The said words and picture were defamatory of the plaintiff and in their natural and ordinary meaning mean and were understood to mean that the plaintiff:

(b) had taken money from a bookmaker to fix a Test Cricket match;

(c) had behaved corruptly as an Australian Test Cricketer being involved in match fixing."

15. On the same date leave was granted to the defendant to file an further amended defence which it did on 25 November 1999. Paragraph 4 of that amended defence was in the following form:

(b) it says further that in the various editions of The Herald-Sun newspaper dated 8th January 1999, the defendant published an article which incorporated the said words and picture (the article), a copy of which is annexed hereto and marked with the letter 'A"; and

(c) it says further that at trial the defendant will produce and rely upon the whole of the article."

21. The balance of the defence was substantially in the same form as previously although a further Polly Peck imputation was also pleaded. On 9 December the plaintiff filed an amended reply to the defendants amended defence. On 10 December, I made consent orders with respect to further steps in the proceeding, including directions as to the filing by both parties of affidavits of documents, orders as to the filing and serving of interrogatories and answers to interrogatories adjourning the summons for directions to 31 March to enable those steps to be completed.

24. By summons of 27 March 2000 the defendant made application that the plaintiff's further amended statement of claim of 12 November 1999 be struck out or that at least paragraph 5 be struck out. The essential basis of this application is that it is impermissible for the plaintiff to rely on the words and photograph ultimately pleaded (paragraph 5 of the further amended statement of claim) as the sole foundation of the imputations relied on, and that, absent the pleading of the other parts of the publication, the statement of claim should be struck out. This argument is founded upon the claim that the omitted part of the article materially qualifies the imputations relied on by the plaintiff. The plaintiff claims that the history of the matter is such that the objections should be dismissed as being frivolous, reliance being placed on (1) the failure of the defendant to raise these objections earlier and in due time, on the contrary acting on the basis that the statement of claim was in proper form, (2) that the plaintiff was entitled to choose what parts of the publication on which he relies. However, Mr. Houghton, leading counsel for the defendant, argued that the usual form of pleading was for the whole of the article to be pleaded and that this practice was grounded in and supported by both practical considerations and authority. Thus, he argued that the plaintiff could not simply select parts of the publication and rely on them only when there were, as here, other parts of it that might alter or qualify the complexion of the imputations pleaded. It is my impression that Mr. Houghton principally relied upon the failure to include that part of the text which clearly stated that both the plaintiff Warne and Mark Waugh had repeatedly denied ever being involved in match fixing. Notwithstanding that, his submission was that the whole of the article was required to be pleaded by the plaintiff in his statement of claim. He claimed that the authorities required the pleading of matters that had the capacity to colour the overall impression and that the exclusion of Warne's denial of being involved in match fixing was misleading, particularly so in view of the fact that it had originally been pleaded. Thus he contended that reliance in effect upon the headline only was not permitted because the ordinary reasonable and fair-minded reader would be assumed to have read the whole of the article. He contended that the fact that the defence referred to the whole of the article was not a material matter, because the obligation lay on the plaintiff in the first instance to plead the whole of the article. He contended that the breach by the plaintiff disadvantaged the defendant which might be obliged to put in the balance of the article and thereby be deemed to be calling evidence, with the usual consequences. He submitted that the annexure of the article to the statement of claim did not produce the effect that the whole of the article formed part of the pleading. He submitted that, absent a reference to the whole of the article, the plaintiff could not rely a selected part of it. He contended that the annexation of the article was insufficient because the relevant words had to appear as an allegation of material fact in the pleading.

27. Mr. Wilson, Q.C., who appeared for the plaintiff, first addressed the failure of the defendant to raise any objection to the amended statement of claim (which omitted the text of the article), pointing to the orders subsequently made and indeed complied with. He conceded, however, that the additional steps that were taken (e.g. discovery, interrogation) would enure for the benefit of the action. He contended the law was in an unsettled state but that the position as outlined by Kirby, J. in Chakravarti v. Advertiser Newspapers Ltd. (1998) 193 C.L.R. 519 at para 134(3-4) concerning pleading of headlines was correct. He argued that unless it were, there would be excluded from the body of persons to be regarded as reasonable readers those persons who only read the headline. He contended that the plaintiff was entitled to plead only that part of the publicaiton which he claims gives rise to the defamatory imputations, so long as the Court was in possession of the balance of the article.

30. I turn to consider the matter in the light of the events which occurred. The failure of the defendant to take at an earlier time than 27 March 2000 any step to seek to compel the plaintiff to plead at least that part of the text of the article which might reasonably bear upon the meaning or meanings to be attributed to it has been, to say the least, unfortunate. That step should have been taken after, or in opposition to, the plaintiff's amendment of his statement of claim in November 1999 by removing all reference to the accompanying text. As my brief description of the history indicates, many steps have been taken since that time. Notwithstanding that, a party is not estopped from making an application of this kind even at a late stage, unless the lateness of the application might occasion irremediable prejudice to the opposite party. Both counsel in their submissions have been preoccupied with forensic advantages and disadvantages, real and imagined. One might be forgiven for having little patience with the debate in the context of the present action, which is to be tried by a judge sitting without a jury. At various points of time the whole of the article has had its place in the plaintiff's writ and in the defendant's defence to the statement of claim. There is no possibility of the trial judge not considering the whole of the article, either at the behest of the plaintiff or the defendant, or for that matter, even if neither of them sought to do so. Both counsel claimed that the ordinary practice was the one contended for by them. Mr. Wilson argued that the traditional practice was that the plaintiff should not set out the whole of the article and that it was sufficient to set out, so long as the meaning was clear and distinct, only those passages upon which the plaintiff sought to rely to establish the libel. Mr. Houghton's submission was that the plaintiff was obliged to plead at the very least so much of the article as included not only the matters sought to be relied upon but matters that might arguably have an effect upon the plaintiff's claim that the publication was defamatory.

33. In approaching my consideration of this issue, it must be borne in mind that, in an action for libel, it is the words used and published that constitute the material facts. This has led to the general practice of plaintiffs setting out verbatim in the statement of claim published words, it not being sufficient for plaintiffs simply to describe their purport or effect. See Wright v. Clements (1823) B. & Ald. 503 at 506 and 509; Capital and Counties Bank v. Henty (1882) 7 App.Cas. 741 at 771 to 772; Fitzsimmons v. Duncan Ltd. (1908) 2 I.R. 483 at 499. In Gatley, (9th ed.) paragraph 26.12, the following is stated;

"The particular passages complained of should be clearly identified and set out. The plaintiff cannot confine the material of which he complains to an extract of a single publication in circumstances where it is obvious that no reasonable reader would have read that extract in isolation and any reader inquiring beyond that material could not possibly draw an inference defamatory of the plaintiff, that a plaintiff intends to allege that the meaning of words is affected by the context in which they were written, he should include this contextual material in the pleading. However surrounding material which is genuinely irrelevant to the plaintiff's complaint should be omitted."

See too Duncan & Neill on Defamation (1983), para 4.11_._ See Chalmers v. Payne [1835] EngR 38; (1835) 2 C.M. & R. 156 at 159_; Rubenstein v. Truth and Sportsman Ltd._ [1960] V.R. 479; Ron Hodgson v. Belvedere Motors (1971) N.S.W.L.R. 472 and the statement of Hunt, J. in Gordon v. Amalgamated Television Services (1982) N.S.W.L.R. 410 at 413 to the following effect:

"Where the publication sued upon is in written form, a plaintiff is obliged to include within his pleading every passage with materially alters or qualifies the complexion of the imputation complained of. The justification of that rule is the principle that the effect of the matter complained of must be taken from the whole of what has been polished."

In World Hosts Pty. Ltd. v. Mirror Newspapers Ltd. (1976) N.S.W.L.R. 712, the plaintiff sued on a newspaper headline only, and did not plead the text of the article. Glass, J.A. stated (at 725):

"From that starting point it is a small step to the proposition that the legal effect of headline cannot be judged in isolation but must be considered together with matters appearing in the body of the report which qualify to explain it. The jury cannot be asked by the plaintiff to disregard what the defendant is entitled to have them consider."

In the High Court, on appeal (Mirror Newspapers Ltd. v. World Host Pty. Ltd. [1979] HCA 3; (1979) 141 C.L.R. 632 Aickin, J. stated (646):

"It is clear that in determining whether the statement published was capable of being defamatory it is necessary to consider not merely the headline, conspicuous though it was, but the publication as a whole and for the jury to be directed that in considering the question whether the statement bore a defamatory meaning, they should consider the statement as a whole. The emphasis supplied by the publisher is, however, not to be ignored .... To say that consideration must be given to the statement as a whole does not mean that either the court or the jury must give equal significance to each part of the publication."

In Kasic v. ABC [1972] VicRp 80; [1972] V.R. 702 at 706, Gowans, J. stated:

"It is sufficient for a plaintiff to set out the defamatory passages, providing its meaning is clear and distinct. But if 'the complexion of the imputation' conveyed by the defamatory passages is materially altered or qualified by other passages in the article or letter (or in this case the interview) the plaintiff must set out the whole article or letter (or interview) or at all events those other passages in his statement of claim."

46. Of course, the parties in this case strongly disagreed as to whether there was anything in the text of the article that might alter or qualify the effect of the headline or sub-headlines. Counsel for the plaintiff argued that the burden would lie on the defendant, referring to a passage in Gillooly, The Law of Defamation in Australia and New Zealand at 39 to this effect:

"The defendant may set out to prove that, whilst the passage complained of, looked in isolation, may convey damaging imputations, the surrounding material completely nullifies their effect."

This is the familiar bane and antidote proposition but it may be that the proposition thus formulated is too wide. Complete nullification of the effect of previous passages by later passages may not be a legal necessity. Nor would, if the whole article or the relevant passages obliged to be pleaded as material facts by the plaintiff are set out, the burden of proof be reversed. With respect to the issue of whether or not the publication complained of is defamatory, the burden remains on the plaintiff.

51. At least as formidable an obstacle is put in the plaintiff's path by the decision of the House of Lords in Charleston Newsgroup Newspaper Ltd. [1995] UKHL 6; (1995) 2 A.C. 65. In that case actors in the television program "Neighbours" sued the News of the World newspaper in respect of an article published by it. Photographs and headlines of the article suggested the plaintiffs were making a pornographic film, the principal photograph showing a near-naked man and woman, with the faces of the male and female plaintiffs, respectively engaged in intercourse. However, the text of the article accompanying the photographs made it clear that the faces of the plaintiffs had been superimposed upon the bodies of other persons in a pornographic computer game. Ultimately, it appears to have been conceded in the House of Lords that the article was not defamatory taken as a whole, (that is including the written text) but the argument was advanced that since many readers would only read the headlines and look at the photographs and not bother with the accompanying text then the article could be viewed as being actionable on the basis of the headline and photographs alone. The House of Lords unanimously rejected this argument. It accepted that many persons who read the News of the World would only look at the headlines and photographs, but that those readers who failed to take the trouble to read the balance of the article could not be described as reasonable and fair-minded readers. Thus it was concluded that a claim for libel could not be founded upon a headline or photograph in isolation from the related text.

54. Mr. Wilson relied upon some statements made by Kirby, J. in Chakravarti in which his Honour disagreed with the opinion of the House of Lords in Charleston on the basis that that view ignored the realities of the way ordinary people receive communications in the modern world, thus limiting the remedy of persons whose reputation might be damaged by such casual or superficial reading of the publication. It was not necessary in Chakravarti to enable decision in the case for that issue to be considered. It is beyond doubt that Kirby, J. rejected Charleston as representing the common law in Australia but no other member of the court in Chakravarti expressed an opinion about that aspect. Of course, the facts in Charleston were startling and perhaps uncommon. Estimations that persons might only read the headlines in the article in this case are primarily guesswork. The text in which the denials of the plaintiff of having ever been involved in match fixing appeared on the same page, side-by-side with the headlines and photograph. For my purposes in this case, I content myself with stating that this is by no means a strong case for claiming that the plaintiff is entitled to plead only the headlines and photograph, when at least some form of antidote sat adjacent to the bane. There is authority that a published denial of a specific allegation is capable of changing the complexion of the imputation conveyed by that alleges itself, as Gowans, J. in Kasic thought might occur. See also Hunt, J. in Gordon (above) where he specifically states:

"A published denial of a specific allegation is capable of changing the complexion of the imputation conveyed by that allegation itself."

His Honour in that case referred to the views expressed by Angas Parsons, J. in Savige v. News Limited (1932) S.A.S.R. 240 to similar effect, his Honour expressing the view that the reader was then faced with two conflicting assertions and the choice of accepting either. Thus the argument was advanced here was that there was a specific denial of match fixing and thus the text qualified the imputations pleaded by the plaintiff in paragraph 5 that he had been involved in match fixing and had behaved corruptly.

59. I have indicated that this case is for trial by judge alone and in such cases this kind of debate is of less significance. Nevertheless, the point at issue is one of proper pleading and in jury trials the matter may be of much greater significance than in the case of a trial before a judge alone. In either case, pleadings are not mere pedantry or formalism. There may well be cases in which the text itself does nothing to alter or qualify the meanings contended for. If the issue was taken up pre-trial, as it has been here, then the Court will be the one to determine whether the passages are arguably capable of diminishing or affecting the imputations contended for and should have been included in the statement of claim. In my opinion, in this case the publication of the denial of Warne's involvement in match fixing arguably bears upon the issues in this case. It ought to have been pleaded as part of the material facts, namely the relevant published words in the statement of claim. The plaintiff apparently thought so too at the outset but re-thought the position and elected to confine the pleading to the photographs and headlines. The defendant also has changed its position, it now contending that at least that part of the article must be pleaded by the plaintiff. I accept that in a case such as this, had the defendant not bothered about the failure of the plaintiff to plead the text of the article, it would hardly have mattered for the reasons I have already indicated. It should not be thought that I am expressing a view that it is necessary in every case for a plaintiff to plead that part of the offending publication that includes a denial by the plaintiff of the truth of the imputation. Nor should I be construed as expressing any view on the question whether the publication of Warne and Waugh's denial of involvement in match-fixing does qualify the imputations argued for by the plaintiff; merely that it is arguable that it does or might. Where there are statements made which the defendant is entitled to have a tribunal of fact taken into account, it is inconsistent with the current of authority that it must be left to the defendant to raise the matter. Moreover, posters and billboards, meant to be read as something in their right without any accompanying text, stand in a different position. See World Hosts (above) at 725.

62. The material fact concerning publication in the print media is always the publication itself. The plaintiff should not be permitted to detach relevant parts. In this respect, pleading in defamation actions may lie in a different position to other cases. Generally speaking, it is a principle of pleading that the plaintiff should not "leap before the stile", that is, ought leave to plead by way of reply to defence matters that are not essential to be included as part of the cause of action or actions upon which the plaintiff relies in the setting up of the pleading. In a less sophisticated setting, a plaintiff claiming damages for personal injuries arising out of a motor vehicle accident must plead and particularize the negligence of the defendant, but does not have to, in advance, deal with the issue of contributory negligence. But the publication in a libel matter is ordinarily a fixed and unalterable material fact. The matters comprising that fact are not ordinarily disparate but an indivisible whole. The meanings may be divisible but not the publication itself. The law should not (subject to the issue of irrelevancy) encourage fragmentation of the published words.

65. I should state that I do not regard the annexing by the plaintiff of the whole of the article to the writ as altering the position. The pleadings are a critical charter as to the issues between the parties but do not become part of the evidence simply by being in the pleading. In this case, of course, even if the plaintiff does plead the whole article (as I propose to direct) there will be no material change to his imputations that occurs to me.

68. Some submissions were made that an arrangement had been made between counsel that the defendant would be the one who would plead the whole of the article in his further amended defence, that is, it was not a matter of simply a late change of mind but that it was a breach of an arrangement made. That matter was not established save by reference to it (and I emphasize I neither accept nor reject anything said about it). These issues might be a relevant issue in the question of costs but I do not regard them as being decisive of the question of the pleading, particularly since the matter is to be heard by a judge sitting alone.

71. Therefore, I direct that the plaintiff re-plead to plead as part of paragraph 5 of the whole of the article. It is probably sufficient, on my judgment of the parties' focus, if the text on page 1 was pleaded. If the parties so agree, that will suffice. But in order to avoid further dispute, it is to be preferred that the whole article form part of the pleaded publication in this case.

74. I will hear counsel on costs, but indicate that, subject to argument, my provisional view is that this is a case appropriate for letting the costs lie where they fall i.e. no order as to costs.