Bennett v Davies Bros Ltd
[1992] TASSC 90
•29 April 1992
COURT: SUPREME COURT OF TASMANIA
CITATION: Bennett v Davies Bros Ltd [1992] TASSC 90; B12/1992
PARTIES: BENNETT, John Myles
v
DAVIES BROS LTD
FILE NO/S: 899/1991
DELIVERED ON: 29 April 1992
JUDGMENT OF: Zeeman J
Judgment Number: B12/1992
Number of paragraphs: 20
Serial No B12/1992
List "B"
File No 899/1991
JOHN MYLES BENNETT v DAVIES BROS LTD
REASONS FOR JUDGMENT ZEEMAN J
29 April 1992
Defamation – Actions for defamation – Pleading of true and false innuendoes – Prolixity – Pleading the publication of defamatory matter contained in a newspaper article – Extent to which the content of the article ought to be pleaded.
This is an application by the plaintiff for leave to amend his amended Statement of Claim in terms appearing from a proposed further amended Statement of Claim annexed to the application. A number of the matters raised by the respondent in opposition to the application amount to complaints about certain matters already pleaded in the amended Statement of Claim. In those circumstances, the parties have asked that I consider the application as one calling for a consideration not only of the proposed amendments, but also of the amended Statement of Claim generally. The parties were agreed that, if I were to reach certain conclusions about the amended Statement of Claim, it would be appropriate for me to strike out the amended Statement of Claim, reserving liberty to the plaintiff to deliver a further amended Statement of Claim conforming to any relevant views expressed by me in the course of my reasons for judgment. I acceded to this joint application and deal with the application accordingly.
By his amended Statement of Claim the applicant claims damages for defamation against the defendant as publisher of the Mercury newspaper. The application inter alia seeks leave to amend the amended Statement of Claim by pleading an entitlement to aggravated damages. The respondent does not suggest that if otherwise the amended Statement of Claim should be permitted to stand it is not appropriate to permit the applicant to so amend.
The alleged defamation is pleaded in para.4 of the amended Statement of Claim in the following terms:
"4. On or about the 11th July 1991 the Defendant printed and distributed on page two of The Mercury edition of 11th July 1991 an article under the heading 'Bennett an unreliable witness, says counsel for Gray' (which heading is hereinafter referred to as 'the heading'), which included the following words (hereinafter referred to as 'the words'):
'Former Liberal Attorney–General Mr. John Bennett has been described as an unreliable witness by counsel for Opposition Leader Mr. Robin Gray.'"
It is not proposed to amend this paragraph. By agreement, the parties placed before me a copy of the whole of the article referred to in para.4 of the amended Statement of Claim. That article was in the following terms:
"The Bribery Inquiry
Bennett an unreliable witness, says counsel for Gray
By MICHAEL LESTER
FORMER Liberal attorney–general Mr John Bennett has been described as an unreliable witness by counsel for Opposition Leader Mr Robin Gray.
During his summary of evidence at the commission yesterday, Mr David Porter said Mr Bennett's recollection of events seemed to be faulty in a number of respects.
Mr Porter said Mr Bennett was wrong about the way in which Mr Gray had approached the Green Independents.
Mr Bennett told the commission Mr Gray had met the Green Independents after the election, without Cabinet's approval, to test their support for a minority Liberal government.
Mr. Porter said Mr. Bennett was wrong in his belief that he was the first person to inform Mr. Gray of the arrest of Melbourne radio executive, Mr Tony Aloi, on June 23.
'From the evidence of others, in particular Mr [John] Ramsay and Mr [Ron] Cornish, Mr Bennett appears quite wrong about the events of Friday night in relation to Mr Gray being told to desist from telephoning the Commissioner [of Police],' Mr Porter said.
Mr Porter said Mr Bennett now admits he was wrong as to who settled on the names of prominent lawyers from whom constitutional opinions regarding a second election were to be obtained.
'In addition, and importantly, he is clearly confused in his mind as to various telephone calls with Mr Gray,' Mr Porter said.
'He believes that the mention of Mr Benjamin Gray having to be interviewed was in the same telephone call in which Mr Gray was asked to stop ringing the Commissioner. That cannot be right,' Mr Porter said.
Mr Porter also challenged Mr Bennett's evidence relating to when Mr Benjamin Gray was interviewed and said that Mr Gray felt that any mention by him of the extent of Mr Cornish's knowledge or involvement would have been with Mr Bennett on the Friday night of June 23.
'All this suggests significant doubts about the accuracy of his [Mr Bennett's] recollections in respect of different phone calls,' Mr Porter said."
The respondent complains that the matter alleged to have been published consists of extracts only taken from the article of which they form part, that the respondent is entitled to require the applicant to plead in full the whole of the article in which the alleged defamatory material appears, and that, having been so required, the applicant is obliged to do so. The applicant has submitted that there is no such entitlement or obligation. Both counsel were agreed that a relevant principle was that expressed by Asprey JA in Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 at 477, in the following terms:
" ... if the alleged defamatory matter be contained within other written material, it is sufficient to set forth in the declaration the libellous passages only, provided that their meaning be clear and distinct. But, if the meaning of the passages taken singly is not clear or if the complexion of the imputation conveyed by the libellous passages is materially altered or qualified by other passages in the written material, the plaintiff must set out all of the passages in the written material which affect the sense of the alleged defamatory matter ..."
The substance of the submission of counsel for the respondent was that the complexion of any imputation conveyed by the words pleaded in para.4 of the amended Statement of Claim is necessarily materially altered by other passages in the article in that those passages placed the use of the adjective "unreliable" in context by particularising the respects in which it was submitted to "the commission" that the applicant's evidence ought not to be accepted. The respondent submitted that whilst a description of a person as an unreliable witness might convey many defamatory imputations, the context in which that description was used in the article significantly limited the range of imputations which were reasonably open. It appears that at trial the respondent may be permitted to require that the whole of the article be read as part of the applicant's case if the context might be considered to correct, qualify or mitigate the actionable nature of the extracts of the article complained of by the applicant (Cooke v Hughes (1824) Ry and M 112; 171 ER 961), although that is a rule of evidence and not a rule of pleading (Plato Films Ltd v Speadel [1961] AC 1090 at 1127 and 1149). A failure by the applicant to comply with the rule laid down by Asprey JA does not have the result that the relevant pleading ought to be struck out, but may have the result that the applicant fails at trial. If the respondent is successful in requiring the applicant to put the whole article in evidence the pleaded imputations may no longer be made out or even open. As authority for the existence of the rule, Asprey JA referred to Rainy v Bravo (1872) LR 4 PC 287 at 296 – 297 and Tabart v Tipper (1808) 1 Camp 349 at 353; 170 ER 981 at 983. It is appropriate to examine both those cases. Rainey v Bravo (supra) was a case of libel where the alleged libel was sought to be proved by secondary evidence. At trial, the words proved varied from the defamatory words pleaded in that the material pleaded was materially qualified by words not pleaded. In delivering the advice of the Judicial Committee, Sir Montague Smith said, at 296 – 297:
" ... their Lordships think there was still a fatal variance between the proof and the declaration, on the ground that words greatly modifying those alleged in the declaration are not set out. The libel, as it stands, substantially imputes that the Appellant was prohibited generally from practising in Court, and, as pointed by the innuendo, that he was not an honest man. Their Lordships by no means desire to give an opinion upon the question, whether that innuendo is supported by the writing. The actual words, as proved, are, that the Appellant was prohibited only until he had made an apology for an insult offered to the Respondent. Both the passages may be defamatory, but they are libels of a very different character. When a passage contains in itself a complete charge, and is not modified by other passages in the same Letter, it is not necessary to set out the whole. But it is not so in this case. The omitted words clearly change the complexion of the imputation, and affect the inference sought to be drawn from the reference to the other Attorney, who is described as an honest man."
Tabart v Tipper (supra) is less directly on point. The relevant libel was pleaded as a sentence in an article in a periodical in the following terms:
"My sarcastic friend, by leaving out the repetition of chorus of Mons. T's poem, greatly injures the tout ensemble, or general and combined effect."
The evidence indicated that the actual sentence included a reference to a named person after the word "friend". It was held that the omission of the name of the person alluded to materially altered the meaning of the sentence and that upon that basis, the plaintiff was not entitled to a verdict upon the count based upon that sentence. Those authorities confirm my view that the rule expressed by Asprey JA is not one which enables a defendant to seek to strike out a pleading which alleges the publication of certain words contained in an article without pleading all words contained in that article which may materially affect the actionable character of the passages actually pleaded. The effect of the rule is that where a statement of claim does not comply with its requirements and at trial the plaintiff is required to read some portion of the offending article in addition to that pleaded, then, if the effect of such other portion of the article is to materially affect the defamatory nature of the words complained of, the plaintiff may fail. It is not appropriate for me to strike out para.4 of the amended Statement of Claim upon the basis that it does not comply with the rule although it might be thought that there is some force in the submissions of the respondent to the effect that the sense of the words pleaded is materially altered by the balance of the article. If that submission is right the applicant is taking a risk in proceeding on the basis of para.4 as presently pleaded.
By the amended Statement of Claim, the applicant asserts that the words complained of were defamatory of him in their natural and ordinary meaning, and further that those words were defamatory only by reason of extrinsic circumstances. Those pleas are raised by paras7, 8, 9 and 10 of the amended Statement of Claim. Paragraph 7 alleges that in their ordinary and natural meaning the words were defamatory of the applicant and were meant and understood to mean:
"(a) the Plaintiff lied when giving evidence;
(b) the Plaintiff failed to tell the truth when giving evidence;
(c) the Plaintiff could not be relied upon not to lie when giving
evidence;
(d) the Plaintiff could not be relied upon to tell the truth when
giving evidence;
(e) the Plaintiff told lies;
(f) the Plaintiff failed to tell the truth;
(g) the Plaintiff could not be relied upon not to lie;
(h) the Plaintiff could not be relied upon to tell the truth;
(i) the Plaintiff was dishonest;
(j) the Plaintiff was dishonourable.
(k) the Plaintiff was unreliable."
Paragraph 8 is in similar terms, except that it asserts that in their ordinary and natural meaning, the words meant to members of the legal profession in Tasmania, and were understood by members of that profession to have, those same meanings. Each of paras9 and 10 asserts that the words were defamatory of the applicant by reason of extrinsic circumstances which are pleaded. Paragraph 9 asserts that by reason of those extrinsic circumstances the words meant and were understood to have those same meanings. Paragraph 10 asserts that by reason of those extrinsic circumstances, the words meant to members of the legal profession in Tasmania, and were understood by members of the legal profession in Tasmania to have, those same meanings. The applicant seeks to amend those paragraphs. In certain respects, the proposed amendments are matters of form only and the respondent has not submitted that such amendments ought not to be made. The other amendments proposed are to paras.9 and 10 (now proposed to be renumbered paras8 and 9) by seeking inter alia in each case to assert further defamatory meanings. The respondent did not oppose the making of those amendments as such, but submitted that the plethora of meanings alleged in each of the paragraphs rendered them vexatious and embarrassing to plead to.
The further meanings proposed to be added to each of paras.9 and 10 are as follows:
"(l)the Plaintiff was not a fit or proper person to be a legal practitioner in the State of Tasmania.
(m)the Plaintiff was not a fit or proper person to be engaged in legal practice in Hobart or elsewhere in Tasmania."
It may be doubted whether there is any requirement that a plaintiff, who alleges that words were used in a defamatory sense on their ordinary and natural meaning, necessarily plead the meaning or meanings upon which he proposes to rely, i.e. the false innuendo. If a plaintiff alleges that the words were used in a defamatory sense other than their ordinary meaning, he is required to give particulars of the facts and matters upon which he relies in support of such sense (Rules of the Supreme Court, O 21, r7(3)) and in such a case the innuendo ought to be pleaded. Where a plaintiff relies upon the ordinary meaning of the words complained of, it will often be preferable if no meanings are pleaded in the Statement of Claim (Magnifax Publishers Pty Ltd v Incentive Pty Ltd (1970) 18 FLR 100 at 102 – 103) although where more than one meaning is said to be conveyed by words on their natural and ordinary meaning, it is usually desirable for a plaintiff to plead the meanings upon which he proposes to rely (James v New Zealand Tablet Co [1976] 2 NZLR 545 and the authorities therein referred to). Whilst there is no objection to pleading a false innuendo, in many cases such a plea will be unnecessary, although in some cases particulars will be ordered of any false innuendo alleged (eg Hadzel v De Waldorf (1970) 16 FLR 174). At the same time, where a pleader pleads false innuendoes in a manner which is unduly prolix or repetitious, the court may require that the pleadings be reduced to a concise form (Yelash v Imprint Publishing Co Ltd [1972] NZLR 83 at 86). I should hesitate to strike out any false innuendo pleaded upon the basis that the words complained of are incapable of having that meaning in their ordinary and natural meaning, or to strike out a true innuendo upon the basis that the words complained of are incapable of being found to have a defamatory meaning upon the basis of the extrinsic facts and matters pleaded in support of such meaning. They are matters which are properly within the province of the trial judge. I should exercise such a power only in the clearest of cases. This is not such a case. Nevertheless, I ought to consider whether the false innuendoes pleaded and the true innuendoes pleaded and proposed to be pleaded are such as to be unduly prolix or repetitious. The English practice was referred to by Upjohn LJ in Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 333 – 4, in the following terms:
"In my judgment, Ord. 19, r. 6 (2) [which finds its equivalent in the Rules of the Supreme Court, O.21, r.7(3)], made no alteration in the law except in cases where a true innuendo is pleaded. Where no such true innuendo is pleaded the law remains as before. In such a case the pleader is, in my judgment, entitled to allege in his statement of claim that the words in their ordinary and natural meaning would be understood to bear a certain meaning. If he pleads it in that way it is quite clear what he is saying, and the defendant has no case to make an application under Ord. 19, r. 6 (2). But the practice of allowing these false innuendoes has changed because judges, since the introduction of that Order in 1949, have rightly set their faces against the old–fashioned practice of permitting plaintiffs and their pleaders to put extravagant meanings upon the natural and ordinary meaning of the written words. No longer can a plaintiff successfully plead that the words in their ordinary and natural meaning would be understood to mean (a) or (b) or (c) or (d) and so on in increasing extravagance. Such meanings are rightly struck out by judges in chambers under Ord. 19, r. 27, and Ord. 25, r. 4.
But there is nothing in these rules which prevents the plaintiff from putting a reasonable meaning (and possibly more than one) upon the words used as being their ordinary and natural meaning. That may be useful and indeed helpful to a defendant to crystallise the meaning of an article which leaves matters to inference (as I have used that word), and, in my judgment, no objection can be taken to it. If the plaintiff in his pleadings attributes a series of extravagant false innuendoes, it can safely be left to the discretion of masters and of judges in chambers to strike them out so that there is no abuse of the process of the court."
I have come to the conclusion that the false and true innuendoes pleaded in the amended Statement of Claim are prolix to the extent of being embarrassing to the defendant. Whether in their ordinary and natural meaning the words complained of were capable of having some of the meanings pleaded may be doubted. In any event, most of them, in essence, assert one thing, namely, that the plaintiff was a person lacking veracity. Assertions that in their ordinary and natural meaning the words complained of meant that the plaintiff was dishonest, or that the plaintiff was dishonourable, might correctly be described as contentions for extravagant meanings. In so far as some of the true innuendoes are concerned, it may be doubted whether the facts and matters pleaded as being the facts and matters on which the applicant relies in support of those true innuendoes are capable of supporting any such sense. The clearest example is the innuendo pleaded that "the plaintiff was unreliable". The words complained of are to the effect that counsel for Mr. Robin Gray had described the applicant as "an unreliable witness". To then plead that "by reason of the facts particularized hereunder which were known to many readers of The Mercury the heading and the words were defamatory of the plaintiff and meant and were understood to mean ... the plaintiff was unreliable" when the facts particularized are that the applicant is and was at all material times a practitioner of this Court, a Commissioner of this Court, and a barrister and solicitor engaged in private legal practice in Hobart and elsewhere in Tasmania as a partner of a firm of legal practitioners, appears to me to be nonsense. It is alleged that the respondent published of and concerning the applicant an assertion that counsel had described the applicant as an unreliable witness. An innuendo that the plaintiff was unreliable must be a false innuendo as it cannot conceivably rely upon facts and matters in support of a sense other than the ordinary meaning of the words. Whilst less stark, the same might be said of all other of the true innuendoes pleaded in the amended Statement of Claim. Whilst it might be arguable whether the words complained of could have the meanings contended for in the true innuendoes sought to be pleaded by the proposed further amended Statement of Claim, I do not consider those innuendoes to be merely repetitious of what has already been pleaded, although they might more conveniently be the subject of one further innuendo.
I mention some further difficulties with the true and false innuendoes as pleaded and proposed to be pleaded. The words pleaded in para4 of the amended Statement of Claim do not in themselves indicate the circumstances in which counsel for Mr Gray came to describe the applicant as an unreliable witness, nor indeed the circumstances in which the applicant had been a witness. It may be that many of the false innuendoes pleaded in fact need to rely on extraneous facts and matters, namely the circumstances in which the applicant had been a witness. It is true that the ordinary person does not live in an ivory tower and that his understanding of words is to be looked at in the light of his general knowledge and experience of affairs (see Lewis v Daily Telegraph Ltd. [1964] AC 234 at 258) but the pleader may need to consider whether all relevant circumstances may be categorized as falling within the general knowledge and experience of affairs of the ordinary person.
Another difficulty arises with the proposed amendment to the particulars of extraneous materials upon which the true innuendo is based. It is proposed that the amended Statement of Claim be amended so that those facts will be pleaded as follows:
"The Plaintiff relies upon the facts pleaded in paragraph 1 of this Statement of Claim and says that when the heading and the words were published in the context of those facts of and concerning a person who was:
(i) a practitioner of the Supreme Court of Tasmania;
(ii) a Commissioner of the Supreme Court of Tasmania; and
(iii) a barrister and solicitor engaged in private legal practice in Hobart and elsewhere in Tasmania.
(iv) giving evidence on oath.
the heading and the words had the meanings and were understood to have the meanings pleaded above."
The whole of those particulars are contained within the amended Statement of Claim in its present form, with the exception of para(iv). The matters referred to in paras(1), (ii) and (iii) are pleaded as facts in para1 of the amended Statement of Claim. Nowhere is it, or is it proposed to be, pleaded that the applicant in fact gave evidence on oath in any relevant circumstances.
It follows from what I have said that there are grave difficulties with the true and false innuendoes as pleaded by the applicant, whether or not the amendments proposed are made. In certain respects, they are so prolix as to be embarrassing to the respondent. In other respects, the relevant pleadings may be deficient in that matters which ought to be pleaded have not been pleaded.
The respondent also complains of the use of the words "dishonest", "dishonourable" and "unreliable", asserting that each may have significantly different shades of meaning. As to the first two words, I tend to the view that much may be said for the view that they have been pleaded in innuendoes expressed in unduly extravagant terms. As to the third of those words, it seems to be unobjectionable as the applicant is doing no more than repeating the words actually said to have been published.
Finally, the respondent complains of the way in which paras7 and 8 and paras.9 and 10 have been separately pleaded. That complaint is well founded. The relevant authorities are referred to in the judgment of Hunt J in Farquhar v Bottom [1980] 2 NSWLR.380 at 385 – 6 and I do not need to repeat what was said in that case. It is clear that paras.8 and 10 should not be allowed to stand.
The defects in the amended Statement of Claim to which I have referred would not be cured by the amendments proposed. In one respect a proposed amendment would create further difficulties. In those circumstances, the amended Statement of Claim ought not to be permitted to stand and I will order that it be struck out. It was agreed that if I took that course, the applicant ought to be given leave to deliver a further amended Statement of Claim. I will hear the parties as to the terms upon which such leave ought to be granted.
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