Advertiser-News Weekend Publishing Co Ltd v Manock
[2005] SASC 82
•15 March 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ADVERTISER-NEWS WEEKEND PUBLISHING CO LIMITED v MANOCK
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Vanstone and The Honourable Justice White)
15 March 2005
DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA
DEFAMATION - ACTIONS FOR DEFAMATION - PARTICULARS - OF STATEMENT OF DEFENCE OR PLEA
The plaintiff claimed damages from the defendant for libel in relation to three newspaper articles published by the defendant - the plaintiff pleaded that a number of imputations arose from the natural and ordinary meaning of the words in each of the articles - the defendant pleaded justification and provided detailed particulars - the defendant also pleaded that alternative meanings could be attributed to the words which could also be justified - the plaintiff applied for orders striking out the particulars and also to strike out the plea of alternative meanings - a single Judge of the Supreme Court made orders striking out portions of those pleadings and particulars - the defendant appeals those orders - whether the meanings in the particulars pleaded by the defence were separate and distinct from those pleaded by the plaintiff - whether an ordinary reader would consider a statement in relation to general forensic work distinct from work done in relation to murder trials - whether professional incompetence by the plaintiff in relation to the investigation of any death could infer (by way of a sufficient link) incompetence in the investigations of murder cases - discussion of the common law test for a defendant to plead alternative meanings - whether the trial Judge applied the correct common law test - discussion of the "Polly Peck" defence and whether permissible in South Australia - whether the alternative meanings pleaded by the defendant satisfied the common law test - appeal dismissed.
Supreme Court Rules SA R 95.07; Defamation Act 1889 (Qld); Defamation Act 1974 (NSW), referred to.
David Syme and Co Ltd v Hore-Lacy [2000] 1 VR 667, applied.
South Australian Telecasters Ltd (1997) 69 SASR 440, distinguished.
Polly Peck (Holdings) Plc v Trelford [1986] QB 1000, not followed.
Chakravati v Advertisers Newspapers Limited (1998) 193 CLR 519; Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205; Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314, discussed.
Friends of Hinchinbrook Society Inc v Minister for Environment (No 4) (1998) 83 FCR 304; Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135; Robinson v Laws [2003] 1 Qd R 81; Templeton v Jones [1984] 1 NZLR 448, considered.
ADVERTISER-NEWS WEEKEND PUBLISHING CO LIMITED v MANOCK
[2005] SASC 82Full Court: Doyle CJ, Vanstone J and White J
DOYLE CJ: The plaintiff, Dr Manock (the respondent before this Court), has sued the defendant Advertiser-News Weekend Publishing Co Ltd (the appellant before this Court) for damages for libel.
Dr Manock is a forensic pathologist, and formerly was the Senior Director of Forensic Pathology at the State Forensic Science Centre.
The claim is based on three articles published by the defendant in the Sunday Mail newspaper. The Sunday Mail is published in Adelaide of a weekend, and has a wide circulation.
On application by Dr Manock, a Judge struck out from the defendant’s defence a number of the particulars pleaded in support of a plea that, if the publications bore the meaning alleged by Dr Manock, the meaning was true in substance and in fact. The Judge also struck out a plea that each publication had a meaning different from that which Dr Manock alleged, and that the different meaning was true in substance and in fact. That plea was supported by the same particulars (including those struck out) relied upon by the defendant to prove that the meaning alleged by Dr Manock was true in substance and in fact.
The defendant appeals against these orders, pursuant to leave granted by the Judge.
The issues before the Judge
The first publication takes the form of an article occupying most of a page. It was published on 5 November 2000. The heading is: “Was murder trial evidence always reliable?”. Adjacent to a photograph of Dr Manock, in larger print, is a further heading: “Why key forensic findings are under a cloud”. The article deals with aspects of forensic science. Early in the piece the writer says:
“Forensic inquiry is an exacting science where killers can be caught out by miniscule evidence, but serious mistakes can be made. And as forensic evidence takes greater precedence in murder trials, accuracy and reliability become even more critical.”
In brief, the article refers to a number of cases and to Dr Manock’s work and evidence in those cases and suggests that important evidence given by him was unreliable. It refers to a number of widely publicised murder trials in this State in which he was involved.
The second publication appeared on 16 December 2001. It extends over four pages of the Sunday Mail, including the first page. The focus of the article is one of the widely publicised murder cases in which Dr Manock gave evidence as referred to in the first article. The article refers to criticisms of evidence given by Dr Manock in the case and refers to doubts cast on his evidence by a “re-enactment” of the murder, a re-enactment which is dealt with in some detail in the article. The article refers briefly to two other murder trials in which Dr Manock gave evidence, and to his findings in relation to certain other deaths which are not said to have given rise to murder trials.
The third article also appeared on 16 December 2001. It is in the form of an editorial. It refers to the re-enactment as casting doubt “on the forensic opinions” given at the trial. Early in the piece the writer says:
“But forensic science has also had its dark moments, where evidence has been far from exact. In some cases, extremely flawed.”
In relation to the first publication, Dr Manock pleads in the Statement of Claim as follows:
“6 In their natural and ordinary meaning the words of the first publication meant and were understood to mean that in relation to murder trials:
6.1The plaintiff’s evidence was unreliable (top headline and paragraph 42).
6.2The plaintiff’s forensic findings were suspect and were not reliable (bold headline with top headline).
6.3That forensic inquiries undertaken by the plaintiff were inexact, inaccurate and unreliable (paragraph 4).
6.4That the plaintiff had been guilty of serious mistakes (paragraph 4).
6.5That the plaintiff had given a false, inaccurate or unscientific evidence in the case of Fritz Van Beelen, which was critical to his conviction (paragraphs 25 and 26).
6.6That the false, inaccurate or unscientific evidence given by the plaintiff in the Van Beelen case led to the wrongful conviction of Edwards Charles Splatt (paragraphs 27 and 28).
6.7That the plaintiff gave false, inaccurate or unscientific evidence in the Keogh case (paragraphs 32, 33, 34).
6.8That the evidence given by the plaintiff was affected by the fact that he had failed to keep abreast of modern scientific methodology (paragraph 37).
6.9That the failings of the plaintiff referred to in paragraphs 6.1 to 6.8 hereof were a matter of his practice over 20 years (paragraph 5).”
It is significant that for the purposes of this appeal the pleaded imputations are said to be “in relation to murder trials”.
The meanings pleaded in relation to the second publication are again said to be “in relation to murder trials”. For present purposes it suffices to say that they are similar, although fewer in number, to the meanings pleaded in relation to the first publication.
The meanings pleaded in relation to the third publication are again said to be “in relation to murder trials”. They include imputations that Dr Manock’s evidence “was extremely flawed”, “had been so flawed that it had resulted in the overturning of guilty verdicts” and that it “had been so defective that it had resulted in guilty verdicts which were unsafe and the trial should be reopened”.
In its Defence the defendant denies that the words used have the alleged meanings. The Defence pleads in relation to each of the three publications that if it bore the meaning alleged by Dr Manock, “the said meaning was true in substance and in fact”. Detailed particulars are pleaded. The particulars relied upon to support the plea of truth in relation to the first publication are repeated in relation to the second and third publications.
As to each publication, the defendant makes a further alternative plea. It suffices to set out in full the further alternative plea in relation to the first publication. It is as follows:
“9Further, and in the alternative, the first publication meant and was understood to mean that in the plaintiff’s performance of his duties as a forensic pathologist employed at the State Forensic Science Centre:-
9.1 the plaintiff had given evidence in relation to the causes of death of deceased persons which was unreliable;
9.2 the plaintiff had made forensic findings which were suspect and not reliable;
9.3 forensic investigations undertaken by the plaintiff had been inexact, inaccurate and unreliable;
9.4 the plaintiff had been guilty of serious mistakes;
9.5 the plaintiff had given incorrect, inaccurate and unscientific evidence in criminal trials;
9.6 the plaintiff was incompetent in that he wrongly found the cause of death in three infants to be bronchopneumonia when the three deceased infants had significant injuries consistent with having been the victims of violent assaults;
and so understood the first publication was true in substance and in fact.”
As can be seen, the defendant has pleaded that the meanings relate to Dr Manock’s work as a forensic pathologist, not limited to murder trials. Subject to that, the defendant has pleaded imputations that are, by and large, the same as those pleaded by Dr Manock.
The pleading in relation to the second and third publications is to the same effect.
Substantial extracts from the pleadings are set out in the reasons of the Judge: Manock v Advertiser-News Weekend Publishing Co Ltd (2004) 88 SASR 495.
Dr Manock’s pleading of the “natural and ordinary” meaning of the publications on which he relies, the defendant’s pleading of particulars of matters relied on in support of its plea of truth, and the form in which it has pleaded the alternative meaning on which it relies, reflect the practice followed in this State in the pleading of such matters. The only challenge made to the pleadings is that to which I now turn.
Dr Manock applied to strike out a number of the particulars pleaded in support of the plea that the meaning alleged by Dr Manock “was true in substance and in fact”. He submitted before the Judge that the particulars were not capable of supporting the plea of truth. The submission was that the challenged particulars relate to Dr Manock’s conduct as a forensic pathologist in relation to deaths, but not deaths which were followed by a person or persons being charged with murder, and so cannot support a claim that statements about Dr Manock’s work in murder cases are true.
Counsel for the defendant did not and does not claim that the challenged particulars all relate to the conduct of Dr Manock in investigating the cause of death in cases that became murder trials. The submission for the defendant was and is that the challenged particulars, if made out, would provide a factual basis for a finding that Dr Manock lacked competence generally in his practice as a forensic pathologist. The defendant submits that it is a logical inference that if Dr Manock was incompetent in the practice of forensic pathology generally, that incompetence would manifest itself as much in murder trials as it would in the case of other deaths that Dr Manock investigated or considered in his practice as a forensic pathologist.
In brief, the argument is that the defendant is entitled to prove instances of professional incompetence by Dr Manock in investigating the cause of any death as a forensic pathologist (and, in principle, in any aspect of Dr Manock’s work as a forensic pathologist) because incompetence established in cases that were not murder cases will support an inference of incompetence in murder cases. I use the term “incompetence” here (and later in these reasons) as a convenient shorthand to embrace the adverse imputations which it is common ground were made.
The defendant also points to a plea in para 8.16 of the Defence which sets out a number of “aims of a forensic autopsy” to which it is said Dr Manock was required to conform in the course of his work. Para 8.17 of the Defence sets out a number of principles which it is said Dr Manock was required to observe when “giving evidence in criminal courts, Coroners Courts or other tribunals”.
Picking up Dr Manock’s own plea in para 6.9 (above) that the publication means that Dr Manock’s failings “were a matter of his practice over 20 years”, the defendant submits that Dr Manock has pleaded an imputation relating to his practice, that the defendant has identified standards or procedures which Dr Manock failed to observe, and that accordingly Dr Manock’s practice in investigating all cases of death, whether or not a murder trial resulted, is an issue on the pleadings. Logically if this argument is accepted, all aspects of Dr Manock’s practice would become relevant.
As to the defendant’s plea of an alternative meaning, which the defendant seeks to justify, Dr Manock submitted and submits that the defendant is not entitled to plead and prove the truth of a meaning that differs from the meaning on which he relies.
Such a plea is sometimes called a Polly Peck defence. The permissibility of such a plea has been the subject of some controversy in Australia. In Chakravarti v Advertisers Newspapers Limited [1998] HCA 37; (1998) 193 CLR 519 at [8] Brennan CJ and McHugh J referred to the judgment of O’Connor LJ in Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 at 1032, where his Lordship took a broad view of a defendant’s entitlement to plead a meaning different from that alleged by the plaintiff, and to plead that in that meaning the words are true. (The passage is set out below at [56].) Brennan CJ and McHugh J said:
“With great respect to his Lordship, such an approach is contrary to the basic rules of common law pleadings and in many contexts will raise issues which can only embarrass the fair trial of the action. Leaving aside technical pleas such as pleas in abatement, defences are either by way of denial or confession and avoidance. A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of not guilty. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing. Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant’s plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise. A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication. In our view, the Polly Peck defence or practice contravenes the fundamental principles of common law pleadings. In general it raises a fatal issue which can only embarrass the fair trial of the actions.”
Dr Manock invokes that statement in support of his attack on the plea of an alternative meaning.
On the other hand the defendant argues that in the present case there is no difference of substance between a statement that a forensic pathologist was unreliable or incompetent in giving evidence, expressing opinions or conducting investigations in relation to a murder case, and a statement that the forensic pathologist was unreliable or incompetent in the same respects in any case in which the cause of death is in question. That is said to be because the substance of the charge is the lack of competence of the forensic pathologist, not the aspect of practice in which the lack of competence manifests itself. From that premise the defendant reasons that the alternative meanings pleaded by the defendant and by the plaintiff are not severable. They are said to have “a common sting” in the sense in which that term was used by O’Connor LJ in Polly Peck. The defendant submits that this is not a case in which it is attempting to link alternative meanings by raising them to a higher level of generalisation, with a view to justifying the more generalised meaning. The defendant submits that it is doing no more than identifying and justifying a sting or imputation which is common to the meanings pleaded by Dr Manock and by the defendant.
For those reasons the defendant submits that it should be permitted to maintain its pleaded alternative meaning and to justify the “common sting”.
The defendant supports this argument with a submission that at trial Dr Manock will not be confined to the precise meaning pleaded. He might be allowed at trial to rely on a variant of the pleaded meaning, if the adverse imputation is a less serious one, and so Dr Manock might be permitted to rely on the meaning pleaded by the defendant, or something very close to it. Accordingly, so the submission goes, fairness requires that the defendant be allowed to anticipate that possibility and to meet that possibility by justifying the alternative meaning on which Dr Manock might be permitted to rely at trial.
The Judge’s decision
I deal first with the application to strike out the challenged particulars of justification.
The Judge said that the challenged particulars raise Dr Manock’s conduct in relation to deaths, but not deaths that were followed by a charge of murder being laid: at [58]. Except for two instances, it was not alleged in the challenged particulars that Dr Manock had given evidence in a murder trial or prepared a report for the purposes of a murder trial. The Judge said that on the face of it, the challenged particulars were “not reasonably capable of supporting a plea of justification in relation to the imputations alleged by the plaintiff which all relate to the plaintiff’s conduct in relation to murder trials”: at [68].
The Judge rejected the submission that there was a sufficient link between murder trials and the challenged particulars. The link was said to be that if Dr Manock gave an unreliable opinion that led to a person not being charged with murder, that was as relevant as an unreliable opinion given in the course of the trial of a person charged with murder. The Judge pointed out that even this argument would not apply to particulars that related to an accidental death (as some of the challenged particulars appear to). In any event, the Judge said that the suggested link was “far too tenuous”: at [69].
The Judge rejected the submission that the challenged particulars could support a finding as to the general practice of Dr Manock as a forensic pathologist (in death cases generally), from which the Court might then draw an inference about Dr Manock’s conduct in murder trials. This is a reference to the defendant’s plea in paras 8.16 and 8.17, referred to above.
The Judge said that this plea did not provide any particulars of how Dr Manock was said to have failed to comply with the aims of a forensic autopsy, or how any such failures were relevant to his work in relation to murder trials: at [69]. He doubted in any event whether the defendant was entitled to plead Dr Manock’s general practice in this way, when the imputation alleged in para 6.9 related to a particular aspect of Dr Manock’s work.
The Judge ordered that most of the challenged particulars be struck out. He did so because they did not deal with Dr Manock’s work “in relation to murder trials”.
I turn now to the application to strike out the pleading of an alternative meaning.
The Judge considered a number of the Australian and English cases, including observations made by members of the High Court in Chakravarti. From the case law he drew two propositions. The first is at [48] and is as follows:
“…… I think the correct principle is that the plaintiff can rely on the meanings he has pleaded and meanings which are less injurious and not of a substantially different kind. The plaintiff may rely on unpleaded meanings which are simply a variant of the meanings pleaded, or involve no more than a different nuance or shade of meaning.”
The second is at [54], and is as follows:
“Having regard to the decision in Chakravarti, the decisions in this Court in Prichard, Jakudo, Brander, the common law principles of pleadings and the considerations referred to by Miles CJ, I think the principle I should apply is that the defendant may only plead and seek to justify such alternative meanings as may be relied on by the plaintiff to obtain a judgment even though he has not pleaded them.”
The application by the Judge of the principles to the case appears from the following portion of his reasons at [73]:
“The pleaded imputations of the plaintiff relate to his professional conduct and work in relation to murder trials. The defendant’s alternative meanings in paragraph 9 relate to the plaintiff’s performance of his duties as a forensic pathologist employed at the Forensic Science Centre. Leaving aside paragraph 9.5, the imputations raised by the defendant are more general than the imputations pleaded by the plaintiff. It might be debatable as to whether they are more injurious, but in my opinion it cannot be said that they are less injurious than the imputations pleaded by the plaintiff. They are not mere variants or different nuances from the meanings pleaded by the plaintiff. In my opinion, they are substantially different and, although there is some overlap, they involve a different factual inquiry. They are not meanings which could be relied on by the plaintiff, and in accordance with the principles which I have set out earlier, the defendant cannot plead them as alternative meanings.”
The Judge struck out the pleadings of alternative meanings and the particulars in support.
The defendant now appeals.
Are the challenged particulars proper particulars?
I agree with the Judge’s conclusion, and with his reasons.
There is no doubt about the entitlement of a plaintiff, where a number of distinct or separate statements or charges are made about him, to decide in respect of which statement or charge the plaintiff will sue: Gatley on Libel and Slander (2004) (10th Edition), Clement Gatley, Patric Milmo and WVH Rogers (joint editors), London, Sweet & Maxwell, (2004) at 11.14(1). To the extent that that is what Dr Manock has done, his pleading is a straightforward application of a long established rule.
Mr Harris QC, counsel for the defendant, described Dr Manock’s pleading as “artificial” in its limitation of the defamatory imputation to Dr Manock’s conduct “in relation to murder trials”. I disagree. The publications contain a number of references to murder trials, and not surprisingly put some emphasis on the murder trials. For present purposes I am prepared to accept that the publications also attack Dr Manock’s competence in aspects of his work that did not involve him giving evidence in a murder trial, or did not give rise to a murder trial. But, assuming that the wider imputation is made as well, there is nothing artificial (whatever precisely that might mean) in Dr Manock suing in respect of the particular imputation on which he does sue. The attack on his competence “in relation to murder trials” is, in my opinion, a distinct aspect of the publications and, as I have already said, is given some emphasis. For what it is worth, I consider that the ordinary reader would consider that the giving of evidence in a murder trial by a forensic pathologist called for particular care. The ordinary reader is likely to consider that a charge of incompetent or careless or unscientific evidence or inquiries in a murder trial is a serious charge. In my opinion an ordinary reader would regard that charge as distinct from, and at least as serious as, a similar charge in relation to the performance of Dr Manock’s work generally (if the former charge were the only charge made), and as adding something to such a general charge (if the general charge were made as well as the former charge, as I am prepared to assume it is).
In any event, I am not sure what the complaint of “artificiality” means in the present case. As I have said, a plaintiff is entitled to select and to complain of one of several defamatory imputations. If the imputation selected is made out, the plaintiff is entitled to a remedy subject to the defendant establishing a matter of defence. If the imputation is not made out, either because it does not arise at all, or because the imputation is more general than that alleged by the plaintiff, and has been inaccurately narrowed by the plaintiff, then the plaintiff will fail.
If the complaint of “artificiality” is a complaint that the imputation relied on cannot be made out, and that the only imputation that arises is the more general one, the answer is that that is an issue for trial, unless the defendant were to apply to strike out Dr Manock’s plea.
It follows that Dr Manock is entitled to put his case as he has.
That being so, I agree with the Judge that proof by the defendant of incompetence in conducting investigations that did not result in murder trials is not reasonably capable of proving incompetence by Dr Manock in inquiring into and making findings about and giving evidence about deaths that gave rise to murder trials. There is no relevant link between the former field of inquiry and the latter. A charge of incompetence “in relation to murder trials” will be proved only by proving incompetence in or in connection with a murder trial. Such a charge cannot be proved by proving incompetence in other aspects of Dr Manock’s work.
For these purposes it is not relevant to consider the seriousness or impact on Dr Manock of the different charges or imputations. Nor, for present purposes, is it necessary to consider the relevance to the assessment of damages of the defendant’s ability to prove incompetence in other aspects of Dr Manock’s work.
I agree with Mr Harris that a forensic pathologist is expected to observe and to adhere to appropriate professional and scientific standards and methods in any investigation undertaken. I agree also that a forensic pathologist investigating a death will often not know whether or not a murder has occurred, or even whether a charge of murder will eventuate. The appropriate standards and methods should be observed in investigating any death.
But these propositions, and other similar propositions put in argument, do not alter the fact that Dr Manock has complained of imputations relating to his conduct “in relation to murder trials”, and if such imputations are found to arise it is those imputations that must be justified.
Dr Manock’s plea in para 6.9 of the Statement of Claim that the imputations pleaded “were a matter of his practice over 20 years” does not alter things. That pleading is a reference to his practice “in relation to murder trials” over the course of 20 years, not his practice (or practices) as a forensic pathologist generally. There is nothing in this pleading that provides a basis for the defendant to plead, by way of defence, aspects of Dr Manock’s practice generally as a forensic pathologist. I do not accept Mr Harris’s submission that para 6.9 entitles the defendant to plead as it has.
Towards the end of Mr Harris’s submission, Mr Swan, counsel for Dr Manock, applied for leave to amend the Statement of Claim by deleting para 6.9. Mr Harris made a short submission in opposition, making the point that he had placed the same reliance on para 6.9 before the single Judge as he did on appeal. We granted leave to amend the Statement of Claim. Although we did so, my view was and remains that para 6.9 added nothing to Dr Manock’s pleading. It had the potential to cause some confusion, but it is of no significance to the issues being considered on appeal. That conclusion is relevant to a matter dealt with later in these reasons.
I have not found it necessary to deal separately with each of the challenged particulars. The Judge below did that. I am content to refer to his reasons in that respect.
For all those reasons the appeal against this aspect of the Judge’s decision should be dismissed.
Is the plea of the alternative meanings permissible?
In Australia the question of whether a defendant may justify an imputation or meaning of which the plaintiff does not complain is not settled by High Court authority.
The following statement of principle by O’Connor LJ in Polly Peck at 1032 appears to be accepted in England as authoritative:
“I am now in a position to state my conclusions. In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true and to give particulars of the facts and matters upon which he relies in support of his plea, as he is required to do by R.S.C., Ord. 82. It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain.
Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification.
Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication.”
I understand this statement as follows. A defendant is entitled to refer to the whole publication of which the plaintiff complains. If the publication contains two or more “separate and distinct defamatory statements”, the plaintiff can sue on one or some of them. The defendant is not entitled to assert the truth of the others by way of justification. But (perhaps often rather than always), if separate defamatory allegations have a common sting, they are not to be regarded as separate and distinct allegations. The defendant will then be entitled to plead the truth of the common sting, and that will be treated as proof of the truth of the statement or imputation of which the plaintiff complains. Such a plea is commonly referred to as a Polly Peck defence.
Mr Harris submits that the defendant is, as a matter of law, and in the circumstances of this case, entitled to plead a Polly Peck defence and that is what has been done in para 9 of the Defence. Mr Harris submits that an imputation of incompetence in relation to murder trials is also necessarily an imputation of incompetence in relation to Dr Manock’s practice as a forensic pathologist. He denies that the latter imputation raises the former imputation to a higher level of generality or abstraction. He submits that each imputation has a common sting because there is no difference in substance between a statement that a forensic pathologist was incompetent “in relation to murder trials” and a statement that a forensic pathologist was incompetent in the “performance of his duties as a forensic pathologist”. The gravamen or the common sting of the defamatory charge is lack of competence, not the area of practice in which that lack of competence manifests itself.
Accordingly, Mr Harris invokes the latitude that English practice allows a defendant in this situation. The point is encapsulated by Gatley (above) at 11.14(4) where the author, reflecting English practice, says:
“The scope of the plea of justification does not depend upon the meanings of the words complained of pleaded by the claimant but upon the meanings which the words are reasonably capable of bearing.”
A number of decisions by Australian courts have followed and applied the statement of principle in Polly Peck: see Chakravarti at [6] (n25) Brennan CJ and McHugh J. Other examples are referred to in decisions to which I will refer later. This Court referred with approval to the Polly Peck principle in Jakudo v South Australian Telecasters Ltd (1997) 69 SASR 440, but the focus of the reasons was on whether failure to justify a particular imputation will result in judgment for the plaintiff, if the particular imputation is encompassed within the common sting of imputations that are justified: Doyle CJ at 443, Williams J at 448, Bleby J at 451.
But since the decision of the High Court in Chakravarti, there has been a shift.
Chakravarti does not settle the position authoritatively. I have set out above what Brennan CJ and McHugh J said about the statement by O’Connor LJ in Polly Peck. They firmly disagreed with him. They agreed expressly with the reasons of Cooke J in Templeton v Jones [1984] 1 NZLR 448 at 452, reasons with which O’Connor LJ disagreed: Polly Peck at 1031 G. However, in their joint reasons Gaudron and Gummow JJ referred only in passing at [56] to the position of a defendant who “seeks to justify a meaning which is different from that asserted by the plaintiff …”. Some have read their observations as indicating an assumption that a Polly Peck defence may be pleaded in Australia. It is possible that they intended to say no more than that a defendant who does assert a different meaning should plead that meaning so that “the ground upon which the defendant denies the imputation pleaded by the plaintiff” will be known. Be that as it may, it cannot be said that their Honours adopted the views of Brennan CJ and McHugh J. Kirby J made no reference to the point.
Subsequently in David Syme and Co Ltd v Hore-Lacy [2000] VSCA 24; [2000] 1 VR 667, the Court of Appeal of the Supreme Court of Victoria considered the implications of what was said in Chakravarti. Ormiston JA at [21] - [22] said that:
“It would therefore seem desirable, if it was not already required by authority, both that defendants should plead the meanings by way of false innuendo or imputation which they place upon the publication relied upon and that they should plead justification in terms which makes clear the version or versions of meaning of the publication to which that justification is directed. Whatever criticisms the minority levelled at the practice, it seems fortunately restricted to defamation actions and Chakravarti would at least restrict the extent to which imputations and false innuendoes which depart from those pleaded may be relied upon at trial. It would seem, moreover, that even the majority would permit a very limited departure from the case pleaded by the plaintiff; in other words, the jury will have to be told that they cannot find for the plaintiff unless they agree with the meaning or one of the meanings put forward on behalf of the plaintiff, or unless the meaning they would give the publication was only a nuance or variant, not substantially different or more serious from that proposed by the plaintiff.
If that be correct, then a defendant should not need to, nor be permitted to, plead or rely on a meaning other than one which is not more serious and otherwise is not substantially different.”
That is a narrower approach than was taken in Polly Peck, although it does not preclude a defendant from pleading the truth of a meaning that differs from the meaning pleaded by the plaintiff. Ormiston JA indicated that he agreed in substance with the views of Charles JA. Charles JA said at [53]-[54]:
“The principal criticism of the practice sanctioned in Polly Peck, of permitting a defendant to plead and justify a meaning different from that contended for by the plaintiff are that such an approach allows the defendant to raise false issues which can only embarrass the fair trial of the action and will on occasions unfairly prevent a plaintiff from pursuing a claim in defamation, in the manner explained by Brennan CJ and McHugh J in Chakravarti (at [8] – [12]). The setting up of false issues by the defendant in this way may well make admissible a substantial body of evidence that would otherwise be irrelevant and thus greatly lengthen proceedings. But it seems to me that the same criticisms would not hold good if the defendant were limited to justifying a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand.
Nor should a defendant be unfairly prejudiced if the defendant were limited to pleading a meaning which was sufficiently close (in the manner already suggested) to the plaintiff’s meanings, so that the plaintiff himself could succeed upon that meaning on the pleadings as they stand. If the defendant is limited to pleading a meaning on which the plaintiff would be permitted to go to the jury, a false issue is not thereby raised. The issues are instead identified and confined, to the benefit of the court and the parties. Of course, if the plaintiff cannot make good a meaning amongst those identified, his action must fail, and the defendant has no need to plead any other meaning.”
That approach is also a good deal narrower than the approach taken in Polly Peck. Callaway JA took a somewhat different approach, but again one which appears to me to be narrower than was taken in Polly Peck.
Then in Robinson v Laws [2001] QCA 122; [2003] 1 Qd R 81 the Court of Appeal of the Supreme Court of Queensland, after considering Chakravarti and a number of decisions before and after Chakravarti, held that a Polly Peck defence could not be pleaded in Queensland: de Jersey CJ at [44], Williams JA at [91] and [92] and Mackenzie J at [124] – [126]. Each of their Honours appears to have accepted an approach similar to that taken by Charles JA in an attempt by a defendant to prove the truth of a meaning not pleaded by the plaintiff.
It may be that the provisions of the Defamation Act 1889 (Qld) means that the law in Queensland on this point is not the same as the law in this State.
In Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314 the Full Court of the Supreme Court of Western Australia was divided. Anderson J agreed in substance with the views of Charles JA in Hore-Lacy: at [13] – [14]. Although Steytler J said that a Polly Peck defence might still be pleaded, he appears to me to have taken much the same approach as was taken by the majority in Hore-Lacy. He said at [59] - [60]:
“There being no clear majority in Chakravarti against the continuance of the pre-existing practice, in this State, of pleading so-called Polly Peck defences, that practice should be permitted to continue, in my opinion, at least until there has been further guidance from the High Court. However, the extent to which a defendant will be permitted to plead defamatory meanings different from those pleaded by the plaintiff will be constrained by the extent to which the plaintiff might himself or herself be permitted to rely, at the trial, upon imputations other than those pleaded by him or her.
No purpose can be achieved by allowing a defendant to plead, and seek to justify, a meaning different from that or those which might be found by a jury in favour of the plaintiff. If the plaintiff cannot succeed on a particular imputation which is different to that pleaded by him or her, then, to allow a defendant to plead that imputation, and seek to justify it, can only result in the creation of a false issue and prejudice to the proper trial process. On the other hand, if the defendant is able to justify a defamatory meaning which differs from that pleaded by the plaintiff but which might be found by a jury on the strength of the plaintiff’s own pleading, then there is a basis for saying that the defendant can, and should, plead that alternative meaning and also the matters upon which it relies in contending that it is able to justify it. In this way the issues might be defined more precisely and there would be clear benchmarks against which the relevance of evidence might be assessed. I should add, as regards the concept of ‘fairness’ or ‘disadvantage’, that it can never be fair or advantageous to a plaintiff, or to the trial process itself, to permit a defendant to plead, and seek to justify, a meaning which could plainly not be found by a jury on the plaintiff’s pleading.”
McLure J said at [85]:
“It was accepted by the parties that the Polly Peck defence is available in this jurisdiction. It was also accepted by the parties that the scope of the defence is delineated by the extent to which a plaintiff can depart from his or her pleaded imputations. Further, there was no suggestion that the appellant in this case was attempting to justify a separate and distinct statement in the matter complained of (as to which see Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 at 1032 per O’Connor LJ).”
That led her to the following conclusion at [91]:
“On that basis, in the absence of a relevant Polly Peck imputation a plaintiff who pleads an imputation of guilt could not rely on a lesser imputation of a reasonable suspicion of guilt. On the other hand, if the defendant had pleaded a Polly Peck imputation of a reasonable suspicion of guilt there can be no suggestion of disadvantage.”
On the other hand, in Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 at 100, Levine J of the Supreme Court of New South Wales took the view that a Polly Peck defence might still be pleaded. In John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 Hodgson JA said at [80] that the status of the statement of law in Polly Peck in Australia was “unclear”. The other members of the Court did not have to deal with the point. It may be that having regard to the provisions of the Defamation Act 1974 (NSW) the position in New South Wales on the point might differ from the position in South Australia.
The decisions in Hore-Lacy, Robinson and Nationwide News reflect the rejection of the law as stated in Polly Peck, at least to the extent that Polly Peck is authority for the proposition that provided different meanings have a common sting, they are not separate and distinct and the defendant may justify the common sting by way of a defence of truth in relation to the meaning pleaded by the plaintiff. I consider that these decisions also indicate substantial (although not complete) support for the propositions formulated by Charles JA in Hore-Lacy at [53] and [54] (above).
The propositions formulated by Charles JA, to the extent that they deal with the ability of a plaintiff to rely on a meaning other than that pleaded, appear to me to be consistent with what was said by all members of the High Court on that point in Chakravarti: see Charles JA at [52].
I doubt whether the propositions formulated by Charles JA are inconsistent with the observations of Brennan CJ and McHugh J in Chakravarti about pleading a Polly Peck defence, because to the extent that a plaintiff may be permitted to depart from the meaning pleaded, fairness requires that the defendant be permitted to anticipate and deal with the alternative meaning. In that context the expression “alternative meaning” is something of a misnomer. An alternative meaning that can be pleaded and justified by the defendant can be no more than a shade or nuance of the meaning pleaded by the plaintiff, and so in substance (as it seems to me) the alternative meaning must be close to or the same as the meaning pleaded by the plaintiff.
Be that as it may, for present purposes, it suffices to say that I agree with propositions formulated by the Judge below at [48] and [54] (set out above). I regard those propositions as consistent with the majority views in Hore-Lacy, Robinson and Nationwide News. They do not appear to be inconsistent with the observations of Brennan CJ and McHugh J in Chakravarti about the so-called Polly Peck defence, but that is not critical for present purposes. It is not critical because the propositions lead to the conclusion that pleading of the alternative meaning should be struck out. If the Court were to conclude that the pleading of the alternative meaning should stand consistently with the Judge’s propositions, it would have to consider whether that conclusion was contrary to the views expressed by Brennan CJ and McHugh J, and, if it is, whether the Court should adopt and apply their view of the law.
In other words, in the present case it suffices to say that the alternative meaning pleaded by the defendant is a meaning on which Dr Manock would not be entitled to rely at trial and so cannot be pleaded and justified by the defendant as an alternative meaning. The meanings are different for the reasons that led me to conclude that the challenged particulars could not prove the truth of the imputation of which Dr Manock complains. The “common sting” on which the defendant relies is created by removing or ignoring an aspect of the meaning alleged by Dr Manock, or by raising the meaning alleged by Dr Manock to a higher level of generality so as to change the alleged meaning from a meaning with an area of overlap with the defendant’s meaning to a meaning that is the same. While Polly Peck might contemplate that approach, Australian authority is to the contrary.
While it is not strictly necessary to do so for the purposes of the present case, I think it appropriate to say that I respectfully agree in principle with the views expressed by Brennan CJ and McHugh J about the pleading of a Polly Peck defence, subject to the limited exception recognised by Charles JA.
Once the plaintiff pleads a meaning on which the plaintiff relies, that pleading will identify the meaning of which the plaintiff complains, and delimit the boundaries within which the action is to be fought. Although it is the publication of the defamatory material that is the tort, the function of the pleading is to identify the field of inquiry at the trial.
It appears to be generally accepted that once the plaintiff has pleaded the meaning on which the plaintiff relies, the plaintiff will not be entitled to seek a verdict on a different imputation. On that all members of the High Court agreed in Chakravarti. That is subject to the qualification that another defamatory meaning might be relied on by the plaintiff, when it is a mere shade or nuance of meaning, provided that the defendant suffers no prejudice, embarrassment or unfair disadvantage as a result: Brennan CJ and McHugh J at [24] – [25], Gaudron and Gummow JJ at [60] and Kirby J at [139] sub-paras 3 and 4.
Accordingly, there can be no unfairness to the defendant in not allowing the defendant to justify a meaning that, because it differs from the meaning pleaded by the plaintiff, the plaintiff would not be permitted to advance a trial. That is what the Judge has decided here.
While on the question of the ability of the plaintiff to depart from a pleaded imputation, I record my agreement with the following observation made by McLure J in Nationwide News at [94]:
“On my reading of the reasons in Chakravarti, disadvantage to the defendant is an additional limiting factor on the extent to which a plaintiff can depart from his pleaded imputations not a factor that is intended to widen the plaintiff’s (and in turn the defendant’s) opportunities to depart from them.”
In my respectful opinion the observations of Brennan CJ and McHugh J are supported by practical considerations. The approach that they take is conducive to the fair conduct of a trial. I agree with them that under the law as stated in Polly Peck it appears open to a defendant to plead and justify meanings that differ from the meaning on which the plaintiff relies, resulting in the introduction of evidence that will increase the length of the trial, may tend to cloud the issues, and may work to the unfair prejudice of the plaintiff.
The latitude that the principle stated in Polly Peck allows will lead to defendants re-stating defamatory imputations at higher levels of generality, then seeking to justify the more general imputation by evidence that does not bear directly on the matter of which the plaintiff complains. On that point it is pertinent to recall the observation by Gleeson CJ in Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 at 137:
“Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation.”
For these reasons, as a matter or principle, as a matter of fairness and having regard to the public interest in the efficient conduct of a trial, the law as stated by O’Connor LJ in Polly Peck should not be applied in this State. A preferable approach is that adopted by Charles JA in Hore-Lacy at [53] and [54]. For those reasons I agree with the Judge that the pleading of an alternative meaning should be struck out. I would dismiss the appeal against this aspect of the Judge’s reasons.
The defendant’s appeal should be dismissed.
Defendant’s Further Submission
After the Court reserved judgment, Mr Harris filed a further written submission. The Court gave him leave to do so when it allowed the amendment to the Statement of Claim.
He argued that the amendment to the Statement of Claim to delete para 6.9 must result in leave being granted to the defendant to amend its Defence. I agree that, if the application is made, it would be appropriate to grant leave.
He further submitted that the amendment “so changes the pleading landscape that it effectively scuttles the appeal and the proceedings” before the single Judge. He submitted that the Court should not decide the appeal, but should remit the matter to the single Judge for argument on the Statement of Claim as now amended and on such further Defence as the defendant might file.
That submission was later withdrawn and so it is unnecessary to deal with it.
VANSTONE J: I agree that the appeal should be dismissed and with the reasons given by the Chief Justice.
WHITE J: I agree that this appeal should, for the reasons given by the Chief Justice, be dismissed.
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