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

Warne v Herald & Weekly Times Ltd [2000] VSC 210 - VSC 2000 case summary — Zoe

[4]

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.

[13]

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.

[15]

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]

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.

At a glance

Court

Decision date

Before

Source

Judgment (38 paragraphs)

Parties