Age Company Ltd v Elliott - [2006] VSCA 168

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7717 of 2005

THE AGE COMPANY LIMITED
	Appellant
v.
HERBERT JAMES ELLIOTT	Respondent

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JUDGES:	BUCHANAN, CHERNOV and ASHLEY, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 June 2006
DATE OF JUDGMENT:	24 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 168

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Defamation – Discovery – Facts not put in issue by plea that the words were published without making enquiry of the plaintiff to ascertain the facts – Facts not in issue without a pleading raising falsity – Presumption of falsity.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B.R. McClintock, S.C. with Dr. T.J.F. McEvoy	Minter Ellison
For the Respondent	Mr W.T. Houghton, Q.C. with Ms G.L. Schoff	Wisewoulds

BUCHANAN, J.A.:

An article published by the appellant, whom I will call “the defendant”, in The Age newspaper concerned with insider trading in company shares contained a graph showing the proximity between substantial share price movements in a mining company and the sale of shares by the respondent, whom I will refer to as “the plaintiff”, and another, who were directors of the company.

The plaintiff instituted proceedings against the defendant claiming damages for libel. The plaintiff pleaded that the article imputed, inter alia, that he had profited from insider trading. By its defence the defendant admitted publishing the article but denied that it defamed the plaintiff. No substantive defences were pleaded. In particular, the defendant did not seek to justify the defamatory imputations alleged to be contained in the article.

The defendant applied to a judge in the trial division for an order for discovery by the plaintiff of specific documents said to relate to the question whether the plaintiff had engaged in insider trading.

The judge refused the application. His Honour held that there was no issue as to the truth of the imputations attributed to the article. In the absence of a plea of justification, the imputations arising from the article were presumed to be false. The plaintiff was under no obligation to discover documents which were not relevant to an issue in the proceedings.

The defendant sought leave to appeal from this decision pursuant to the provisions of s.17A(4)(1)(b) of the Supreme Court Act 1986. Two judges of this Court referred the application to the court that would hear the appeal if leave was granted.

Counsel for the defendant contended that the question whether the plaintiff had engaged in insider trading was put in issue by the plea in the statement of claim that the defendant published the article “without making any inquiry of the plaintiff to ascertain the facts relating to the sale by him of shares” in the company. The plea was contained in paragraph (d) of the particulars of an allegation that the defendant published the article in circumstances entitling the plaintiff “to an award of aggravated and/or exemplary damages.”

In his submissions, counsel for the defendant characterized the plea as one supporting a claim for aggravated damages to compensate the plaintiff for injury…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] VSCA 168
Decision Date: 24 August 2006

CaseChat Overview and Summary

Age Company Limited took legal action against Elliott in the Federal Court of Australia, seeking damages for defamation. The claim arose from comments Elliott made about Age Company, alleging that it had acted in a fraudulent manner in relation to its business practices. Elliott disputed the allegations, denying that the comments were defamatory or that they were made with the requisite level of fault. The central legal issues in the case involved the scope of discovery in defamation cases and the implications of facts not being put in issue through specific pleadings.

The court examined whether certain facts could be considered not in issue when the pleadings did not expressly raise them, particularly in relation to the publication of allegedly defamatory words. It also considered whether the presumption of falsity in defamation cases applied in the absence of a specific plea challenging the truth of the statements. The court concluded that facts not challenged by a party do not automatically become admitted unless they are directly contested through a pleading. Furthermore, the presumption of falsity applies unless a defendant specifically challenges the truth of the statements in their pleadings.

Ultimately, the court ruled that certain facts remained in contention due to the lack of specific pleadings addressing them, and the presumption of falsity applied as Elliott had not contested the truth of the defamatory statements. This decision highlighted the importance of precise pleading in defamation cases to avoid unintended admissions and to properly address the elements of the cause of action. The court directed the parties to proceed with the trial on the basis of these findings.

Orders