Channel 9 South Australia Pty Ltd v Clarke - [2007] SASC 309

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CHANNEL 9 SOUTH AUSTRALIA PTY LTD & ORS v CLARKE
[2007] SASC 309
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Layton and The Honourable Justice Kelly)
21 August 2007
DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA
Defamation - pleadings - defence of fair comment - appeal against decision of judge to strike out certain particulars of the Defence - whether defendant can plead facts not identified in published material - whether particulars, subject of order to strike out, were part of subject-matter or substratum of fact sufficiently indicated - court comments on inappropriateness of pleadings.
Held: comment may be made on subject-matter where underlying facts are well known or before the public - facts, subject of particulars, not well known in this case - decision to strike out particulars correct - appeal dismissed.
Supreme Court Rules 1987 (SA) r 46.19, referred to.
Kemsley v Foot [1952] AC 345, applied.
Clarke v Channel 9 South Australia Pty Ltd & Ors [2006] SADC 87; Clarke v Channel 9 South Australia Pty Ltd & Ors (No 2) [2006] SADC 139, discussed.
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; Control Risks Ltd v New English Library Ltd [1990] 1 WLR 183; Pryke v Advertiser Newspapers Limited (1984) 37 SASR 175; C v L & Ors [2005] SASC 315; Channel 7 Adelaide Pty Ltd v S, D J (2007) 248 LSJS 75; Sims v Wran [1984] 1 NSWLR 317; Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR(NSW) 524; Theophanous v Herald & Weekly Times Limited (1994) 182 CLR 104; Rigby v Associated Newspapers Limited (1966) 68 SR(NSW) 414; Uren v Australian Consolidated Press Limited (1969) 71 SR(NSW) 29, considered.

CHANNEL 9 SOUTH AUSTRALIA PTY LTD & ORS v CLARKE
[2007] SASC 309
Full Court: Doyle CJ, Layton and Kelly JJ

DOYLE CJ: Mr Clarke brought proceedings in the District Court against Channel 9 South Australia Pty Ltd (“Channel 9”), a commercial television station, and against certain other commercial television stations. For convenience I will refer hereafter only to Channel 9. Mr Clarke alleged that Channel 9 had defamed him in a television broadcast published by it.
Channel 9 has pleaded as one of its defences the defence of fair comment on a matter of public interest.
A District Court Judge struck out certain paragraphs of the Defence which are said to be particulars of the facts upon which the comment is based, which facts are said to be true in substance and in fact. (They are actually headed in the Defence as “Facts And Matters Relied On In Support Of The Truth Of The Statements Of Fact” on which the comment is based.)
The Judge also struck out certain particulars of the matter of public interest upon which the comment is said to have been made.
Channel 9 has appealed against that decision. Two issues were argued on the appeal.
Can a defendant, when pleading facts on which an asserted comment is said to be based, rely on facts that are not contained in the published material, are not notorious or already in the public arena, and are not indicated or referred to in the published material? Putting it a little differently, is it sufficient if the facts relied upon by the defendant are part of a “substratum of fact”, or part of a subject-matter, that is identified by the published material?
I have expressed this issue this way, reflecting observations by McHugh J in Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 in particular at 340-347, because the argument presented by Mr Swan, counsel for Channel 9, is based on these observations.
If the answer to these questions is favourable to Channel 9, the question arises of whether the particulars that were struck out are part of a subject-matter or substratum of fact sufficiently indicated by the published material.
The second issue argued is whether the matter of public interest to which the asserted comment relates must “address the imputations alleged by the plaintiff”. Must the public interest identified by the defendant be “identifiable within the meaning” of the imputations pleaded by the plaintiff? I put the matter this way, because it reflects the approach taken by the Judge. However, as will appear, I find it unnecessary to decide this issue to deal with the second matter raised on appeal.
The action
I begin by stating some background facts that are drawn from unchallenged parts of the Defence filed by Channel 9 and from the text of the program. Whether the facts are correctly stated is an issue for the trial.
Mr Clarke was a member of the House of Assembly in the Parliament of South Australia. He was Deputy Leader of the Australian Labour Party.
Mr Clarke was charged with three counts of assault on Ms Pringle, with whom he had lived in a de facto relationship. He pleaded not guilty. The charges went to trial. Ms Pringle gave evidence for the prosecution. She gave evidence that Mr Clarke had “repeatedly hit her and verbally abused her”. In cross-examination Ms Pringle admitted that she had “spent the night” with Mr Clarke shortly before the trial began. The Director of Public Prosecutions decided not to proceed with the charges after Ms Pringle made that admission.
After that happened, Ms Pringle and Mr Clarke made public statements. In brief, Ms Pringle explained her conduct by referring to the situation of a woman in a situation of “domestic violence”. Mr Clarke said, in effect, that justice had been done.
The events of the trial, and subsequent comments by the parties and others, were the subject of extensive publicity in the print media and in the electronic media.
Not long after the prosecution came to an end, Ms Pringle attempted suicide.
In August 1999 Channel 9 televised a program about these events. It included an interview with Ms Pringle. The program also included a brief interview with two other persons. The program canvassed aspects of the trial and its aftermath, and referred to the allegations against Mr Clarke. The reporter referred to Ms Pringle’s “love-hate relationship with Ralph Clarke”. The program included the reporter referring to “a recorded police statement that’s only now come to light”. The reporter said the statement “shows Mr Clarke admitted hitting her on at least one occasion”. The reporter, apparently reading from the statement, refers to an incident or incidents in which Mr Clarke struck Ms Pringle, and in which he grabbed her and pushed her. The reporter says that:
This admission and medical reports detailing injuries to Edith [Ms Pringle] never made it to court. Edith’s credibility was shredded before that could happen.
The Pleadings
In his Statement of Claim, Mr Clarke sets out excerpts from the broadcast. The full text of the program is annexed to the Statement of Claim.
In relation to these excerpts, paragraph 13 of the Statement of Claim then pleads:
13The said words in their natural and ordinary meaning meant and were understood to mean:-
13.1   Clarke should have been convicted of domestic violence in the case brought in the District Court;
13.2   Clarke subjected Pringle to repeat criminal assaults during their relationship;
13.3   Clarke was responsible for Pringle making an attempt on her life, that is overdosing in ending up [sic] in the Flinders Medical Centre Intensive Care Unit by his insensitively and wrongly claiming to have cleared his name or obtained justice.
Channel 9 denies that the words complained of have the meaning pleaded by Mr Clarke. It says in any event that these meanings are not defamatory of Mr Clarke.
In para 5 of the third further amended Defence (“the Defence”) Channel 9 pleads that “the matter complained of comprised fair comment upon a matter of public interest”. This appears to be a reference to the imputations pleaded in para 13 of the Statement of Claim. Particulars of the public interest are set out in para 5.
In para 6 of the Defence Channel 9 then pleads that the program “comprised Statements of Fact which are true in substance and in fact and the balance of the broadcast comprised comment”. The portions of the program which are said to be Statements of Fact are set out in a Schedule to the Defence.
Paragraph 6 contains a number of subparagraphs. They are said to be “Facts And Matters Relied On In Support Of The Truth Of The Statements of Fact”. Mr Swan, counsel for Channel 9, said that this is done because of r 46.19 of the Supreme Court Rules 1987 (now repealed), which requires a defendant making a plea of fair comment on a matter of public interest to:
… give particulars stating which of the words complained of he alleges are Statements of Fact and of the facts and matters he relies on in support of the allegation that the words are true.
The facts upon which the comment is said to be based are to be found in the Schedule to the Defence. However, the facts are not there pleaded as facts identified by the pleader. They are pleaded simply as a series of extracts from the program, using the words of the various speakers. Paragraph 6 of the Defence sets out in 18 subparagraphs a series of facts upon which Channel 9 will rely to support the Statements of Fact (in the Schedule) on which the comment is based.
I understand that before the District Court Judge it was common ground that subparas 6.1 to 6.18 contain matters that are to be found in the program or that are notorious.
Subparagraph 6.19 of the Defence repeats 22 subparagraphs found in para 4 of the Defence. They appear there as “Particulars of Justification”. The Judge struck them out from para 4, and there is no appeal against that decision. For present purposes I treat subpara 6.19 as repeating those struck out subparagraphs.
The 22 subparagraphs allege a series of events involving Ms Pringle and Mr Clarke. They describe incidents, which I gather occurred in private between Mr Clarke and Ms Pringle. The subparagraphs identify a number of incidents in which Mr Clarke is said to have pushed or struck or manhandled Ms Pringle, causing her some injuries. They also include incidents in which he spoke to her in an abusive fashion. These are, of course, no more than allegations in a pleading. Whether these allegations are correct will be decided at the trial.
There are aspects of the Defence, particularly para 5 and para 6, that I find unclear. They may give rise to problems at the trial. But for present purposes they can be put to one side.
The Judge’s Decision
The Judge’s reasons indicate that the matter was argued before him on the basis that the facts set out in the 22 subparagraphs of para 6.19 are not “contained in the publication itself”: Clarke v Channel 9 South Australia Pty Ltd & Ors [2006] SADC 87 at [38]. Nor was it argued that these facts were “notorious or readily obtainable”: at [39]. The argument before the Judge was, drawing on the reasons of McHugh J in Pervan, that these facts, if proved to be true, would establish a subject-matter or “substratum of fact” that was “sufficiently indicated” by the published material as a basis for the comment. I gather, although this was never clearly spelt out, that the subject-matter or substratum of fact is said to be the use by Mr Clarke of violence or force and abusive language towards Ms Pringle in the course of their domestic or de facto relationship.
In short, Mr Swan argues that there is a subject-matter or substratum of fact sufficiently indicated by the program (domestic violence, or an abusive relationship between Mr Clarke and Ms Pringle). He argues that the matters pleaded in the subparagraphs are facts that will establish the subject-matter or substratum, and so will prove the basis for the fair comment that Channel 9 claims to have made. There is no need, Mr Swan submits, for these facts to be facts that were available to the public. It suffices that the subject-matter or substratum, domestic violence or an abusive relationship, is identified to the public.
On Mr Clarke’s application, the Judge struck out these subpargaphs. The Judge took the view that a plea of fair comment could be supported only if the comment could be said to be made upon facts set out in the publication, or upon facts that are notorious or well known within the community, or upon a matter that had been submitted to the public for its consideration, such as a published work or a theatrical performance: at [23], [24] and [36]. The Judge did not accept that it was sufficient if the facts that are pleaded could be used to establish the subject-matter or “substratum of fact” indicated or referred to in the publication.
I turn now to the matter of the public interest.
Paragraph 5 of the Defence, as I have already said, contains “Particulars Of Public Interest”. That is, particulars of the matter of public interest on which the comment is said to have been made. Subparagraphs 5.1 and 5.2 are as follows:
5.1A communication between the publisher and the audience in respect of the administration of justice and the conduct of an elected Member of Parliament and the way in which the law treats allegations of domestic violence.
5.2A discussion of government and political matters, namely, the conduct of an elected Member of Parliament and his de facto and the administration of justice.
The following subparas 5.3 to 5.19 repeat, with one exception, the matters found in subparas 6.1 to 6.18. In effect they are a summary of the events referred to in the program. Whether it is appropriate for the matter of public interest to be identified and particularised in this manner, does not arise. No challenge has been made to the identification of the public interest in this fashion. Subparagraphs 5.20 to 5.41 are identical to the subparagraphs repeated in subpara 6.19. They are apparently, as I have already said, particulars of incidents not previously publicised, involving the use of force or abusive language by Mr Clarke towards Ms Pringle in the course of their relationship.
The District Court Judge dealt separately with this aspect of the pleadings: Clarke v Channel 9 South Australia Pty Ltd & Ors (No 2) [2006] SADC 139. Before the Judge Mr Swan apparently argued that the particulars related to “the question of the plaintiff’s relationship with his de facto”, and that that was an aspect of the relevant public interest which was “the conduct of an elected Member of Parliament, his relationship with his de facto and the administration of justice”: at [6].
The Judge struck these particulars out because, as he said at [9]:
In my opinion the comment has to be confined to the plaintiff’s pleaded imputations or any substantially similar or lesser meaning that he may be permitted to [rely] upon at trial. Thus, the Defendants cannot go outside the comments to justify the “public interest”.
In other words, the Judge said that the public interest upon which Mr Swan relied to support these subparagraphs did not “address the imputations alleged by the Plaintiff”: at [11].
Comment on the pleadings
Mr Clarke has pleaded the defamatory imputations on which he relies.
The pleadings raise the issue of whether the pleaded imputations, or some lesser imputation contained in them on which Mr Clarke is permitted to rely, are defamatory; if they are, the issue arises of whether they are fair comment on matters of fact identified by Channel 9. Channel 9 must show that those matters of fact on which it has commented are substantially true, and that the comment is made on a matter of public interest.
Channel 9 has not identified the facts on which the suggested comment is said to be based. It has simply set out extracts from the interview which it says comprise the Statements of Fact on which it has commented.
Nor has Channel 9 identified any comment, beyond the pleaded imputations, which it says was made by it.
In my opinion, to the extent that Channel 9 will rely upon a comment which makes an imputation other than those identified by Mr Clarke, Channel 9 should identify the comment to be found in the words complained of, which it will seek to defend as fair comment: Control Risks Ltd v New English Library Ltd [1990] 1 WLR 183 at 189. This is not one of those cases in which the relevant comment or comments are so obvious that to do so is unnecessary.
However, no complaint has been made about that.
Comment on a matter stated or sufficiently indicated
For the defence of fair comment to succeed at common law, the words or statement complained of as defamatory must be recognisable as comment, not as a statement of fact, and must be based on facts, truly stated or sufficiently indicated, upon which the comment may be based. As well, the comment must be fair, in the sense of an honest expression of the writer’s view.
The Schedule to the Defence refers to questions “about the way the law treats allegations of domestic violence”. It refers to the charges of assault against Mr Clarke. It contains parts of the program that make reference to claims that Mr Clarke repeatedly hit Ms Pringle, and handled her forcefully. It contains references to Ms Pringle as “following a pattern familiar to many battered women”.
Mr Swan submits that the subject matter or “substratum of fact” sufficiently indicated by the program is domestic violence or the abusive relationship between Mr Clarke and Ms Pringle. I will proceed on that basis.
The subparagraphs that the Judge struck out from para 6 of the Defence would, if proved, establish the use of force by Mr Clarke towards Ms Pringle in circumstances that would amount to domestic violence. The same matters if proved might support a description of Ms Pringle as “a battered woman”.
But, as I have already noted, the case has proceeded on the basis that the facts in the particulars that were struck out are not to be found in the program, nor is it suggested that they were notorious facts or facts readily available to the community. It is not suggested that they were ventilated in the court proceedings against Mr Clarke.
Does the fact that the program alludes to domestic violence or an abusive relationship entitle Channel 9 to rely on anything answering that description to provide a factual basis for comment?
Is it sufficient to sustain the pleading of the subparagraphs struck out that they would, if true, provide a factual basis for a comment by Channel 9 relating to domestic violence by Mr Clarke towards Ms Pringle or an abusive relationship between them? Is Channel 9 entitled to rely upon any incident of domestic violence by Mr Clarke towards Ms Pringle in the past?
In my opinion the authorities suggest otherwise. It is clear, I accept, that the facts upon which a comment is said to be based need not appear in the material of which complaint is made. Such a narrow approach would unduly restrict public discussion and debate. But what latitude is allowed to a defendant in this respect?
The speeches of Lord Porter and Lord Oaksey in the House of Lords in Kemsley v Foot [1952] AC 345 have often been cited with approval by the High Court and other Australian courts in this context. I consider that they can be taken as stating the common law.
The case is well known. The facts can be stated quite briefly. An article in a newspaper began with the heading “Lower than Kemsley”. The article that followed contained trenchant criticism, indeed what was referred to as a violent attack, of newspapers controlled by Lord Beaverbrook. Lord Kemsley was a well known newspaper proprietor. He brought proceedings against the writer of the article. His complaint was that he (Lord Kemsley) was attacked on the ground that he was a newspaper proprietor who prostituted his position by conducting his newspapers in an undesirable way. He complained that the heading to the article amounted to an assertion that the newspapers for which he was responsible were similar to, but not quite so bad as those controlled by Lord Beaverbrook, meaning that they were “possibly dishonest, but in any case low”: at 357. The defendant pleaded fair comment. The article was said to be fair comment on a matter of public interest, namely the control by Lord Kemsley of certain newspapers. Particulars were given which contained excerpts from Lord Kemsley’s newspapers accompanied by allegations that they were inaccurate or untruthful, and accompanied by complaints about the method of dealing with the news in the newspapers, even when it was accurate: at 346. It is necessary to understand that no details of the conduct of Lord Kemsley’s newspapers were given in the newspaper article in question.

The issue before the House of Lords was whether the plea of fair comment should be allowed to stand, the Court of Appeal having held that it could stand. The argument for Lord Kemsley was that the plea of fair comment should not be allowed to stand because the suggested comment was not comment on facts expressly stated or identified. Counsel argued that the true basis for a defence of fair comment was facts stated in the article, expressly or by implication. Here, he argued, was comment with no facts to support it. Nevertheless, the plea was permitted to stand.
Lord Porter began by referring to an author who writes a play or book or a composer who composes a musical work. Such work was submitted to the public, inviting its comment. Such work was:
… public in the same sense as a case in the Law Courts is said to be heard in public.
He said that the same observation was true of a newspaper. He then said at 355-356:
… Whether the criticism is confined to a particular issue or deals with the way in which it is in general conducted, the subject-matter upon which criticism is made has been submitted to the public, though by no means all those to whom the alleged libel has been published will have seen or are likely to see the various issues. Accordingly, its contents and conduct are open to comment on the ground that the public have at least the opportunity of ascertaining for themselves the subject-matter upon which the comment is founded. …
It is evident that Lord Porter was treating literary and musical works, and newspapers, as material available to the public, and notionally at least drawn to its attention. He then turned to what he said was the issue, which he had formulated in this way at 354:
… The question for your Lordships’ decision is, therefore, whether a plea of fair comment is only permissible where the comment is accompanied by a statement of facts upon which the comment is made and to determine the particularity with which the facts must be stated.
After making the points outlined above, he said at 356:
The question, therefore, in all cases is whether there is a sufficient substratum of fact stated or indicated in the words which are the subject-matter of the action, and I find my view well expressed in the remarks contained in Odgers on Libel and Slander (6^th ed, 1929), at p 166.
He then set out a passage from Odgers distinguishing between a “bare inference” unsupported by facts, which will be treated as a statement of fact, and an inference based on facts correctly stated, which can be treated as a comment on those facts. I note that in this passage Odgers rationalises his approach on the basis that if the incident on which comment is made is set out or identified, readers can “… judge for themselves how far his opinion is well founded”. He then said at 357:
But the question whether an inference is a bare inference in this sense must depend upon all the circumstances. Indeed, it was ultimately admitted on behalf of the appellant that the facts necessary to justify comment might be implied from the terms of the impugned article and therefore the inquiry ceases to be – Can the defendant point to definite assertions of fact in the alleged libel upon which the comment is made? and becomes – Is there subject-matter indicated with sufficient clarity to justify comment being made? and was the comment actually made such as an honest, though prejudiced, man might make?
He then referred again to the content of the article of which complaint was made and said that there was a sufficient subject-matter. He said at 357:
… Had the contention that all the facts justifying the comment must appear in the article been maintainable, the appeal would succeed but the appellant’s representatives did not feel able to and, I think, could not support so wide a contention. The facts, they admitted, might be implied, and the respondents’ answer to their contention is: “We have pointed to your press. It is widely read. Your readers will and the public generally can know at what our criticism is directed. It is not bare comment; it is comment on a well-known matter, much better known, indeed, than a newly printed book or a once-performed play”.
Having regard to the manner in which this topic was introduced, and to the manner in which Lord Porter expressed the defendant’s answer to Lord Kemsley’s complaint, his conclusion that the heading to the article indicated a subject-matter with sufficient clarity to justify a comment, must have depended upon the fact that the reference to Lord Kemsley was a reference to newspapers that were in the public domain, that were widely read, and with which the public could be assumed to be sufficiently familiar to understand the subject-matter of criticism. That this is so is made clear by the fact that when commenting on criticism of a newspaper a little earlier in his speech (the passage is set out at [51] he said that he was not expressing a view on the outcome of a case in which the relevant publication was “an obscure publication”: at 356. And, at 360 he distinguished some observations of Fletcher Moulton LJ in another case because, as he said:
He [Fletcher Moulton LJ] had not to consider whether the facts must be set out in full or whether a reference to well known or easily ascertainable facts was a sufficient statement of those relied on.
As I have said, the speech of Lord Porter has often been referred to with approval by courts throughout Australia, including the High Court. I am satisfied that Lord Porter’s concept of a “subject-matter indicated with sufficient clarity to justify comment being made” is one that rests upon the subject-matter that is alluded to by, or implied in, the defamatory publication being one available to the public to enable it to make its own assessment of the subject-matter.
Lord Radcliffe and Lord Tucker agreed with Lord Porter. So did Lord Oaksey, although his speech might be thought to take an even more liberal approach: at 361. However, I think it is implicit in his observations that he also was resting his conclusion on the fact that the relevant subject-matter was a newspaper well and truly in the public gaze.
In my respectful opinion this approach reflects common sense. Freedom of speech is an important individual right. The law should permit freedom of speech as far as possible, while providing reasonable protection to persons the subject of defamatory imputations. If a defamatory allegation is to be defended as fair comment, it must be recognisable as such by the ordinary reader, and this will be so when there are facts, stated or indicated to the public, upon which the comment is based. The approach that I have taken to Lord Porter’s speech appears to me to accord with the approach taken by the editors of Gatley on Libel and Slander (10^th ed, Sweet & Maxwell, London 2004). The editors say, at para 12.12, referring to Kemsley v Foot:
The question in all cases is whether there is a sufficient substratum fact stated or, at least where the subject-matter is well-known or easily ascertainable, indicated in the article complained of. (footnotes omitted; emphasis in the original)
The editors conclude their observations on this point by adding:
… and in some cases the matter at issue may be so notorious that the supporting subject-matter may be attracted by any reference to the claimant. (footnote omitted)
The approach that I have outlined has been taken in earlier decisions of this Court. In Pryke v Advertiser Newspapers Limited (1984) 37 SASR 175 King CJ said at 192:
A statement can be regarded as comment as distinct from allegation of fact only if the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts. To amount to comment there must be "a sufficient substratum of fact stated or indicated in the words which are the subject-matter of the action": Kemsley v. Foot [1952] AC 345, per Lord Porter at p. 356. Where the facts upon which the comment is made are in the public arena and are well known or easily ascertainable, it is not necessary that those facts be stated, but is sufficient that they be clearly indicated. Such clearly indicated public facts "are open to comment on the ground that the public have at least the opportunity of ascertaining for themselves the subject-matter upon which the comment is founded": Kemsley v. Foot, per Lord Porter at p. 356. But if the facts are stated in the defamatory publication, they must be stated correctly: Kemsley v. Foot, per Lord Oaksey at p. 361.
Zelling J appears to have taken the same view: at 200. White J agreed with King CJ.
This passage from the reasons of King CJ was applied by the Full Court in C v L & Ors [2005] SASC 315 at [79] Besanko J. Anderson J at [123] and Layton J at [124] agreed with Besanko J. A similar approach appears to have been taken by the Full Court in Channel 7 Adelaide Pty Ltd v S, DJ [2007] SASC 117, Channel 7 Adelaide Pty Ltd v S, DJ (2007) 248 LSJS 75. In that case, Perry J, with whom the other members of the Court agreed, referred with apparent approval to the following observations by Hunt J in Sims v Wran [1984] 1 NSWLR 317 at 322:
Material is proper material for comment in accordance with the common law; this particular element of the defence is not codified: s 30(1). At common law, and thus under Div 7, a statement may be defended as comment only if the material upon which that comment is based was stated expressly or impliedly in the matter complained of or constituted a matter of contemporary history or general notoriety and thus, in one way or another, was made known to the person to whom the publication was made to enable those persons to judge for themselves whether they agree with the opinion published by the defendant and based upon that material: Myerson v Smith's Weekly Publishing Co Ltd (1923) 24 SR (NSW) 20 at 27; 41 WN 5 at 7; Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR (NSW) 524 at 531, 532; 51 WN 178; Kemsley v Foot [1952] AC 345 at 356; Orr v Isles (1965) 83 WN (Pt 1) (NSW) 303 at 321, 329, 330.
A similar approach was taken by Jordan CJ in Goldsbrough v John Fairfax & Sons Ltd (1934) 34 SR(NSW) 524 at 531-532. As I understand his reasons, Jordan CJ was considering the position at common law, subject to the question of whether, in New South Wales, it was necessary to show that the facts on which comment was made were not only true but that it was for the public benefit that they be published: at 533. Jordan CJ said at 531-532:
… For the defence to succeed, it is essential that the whole of the words in respect of which it is relied on should be comment, that they should be fair, and that they should be on a matter of public interest. It must be indicated with reasonable clearness by the words themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact; because statements of fact, however fair, are not protected by this defence. In other words, it must appear that they are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts; … A statement of opinion, if made to a person who has not had brought to his mind the facts on which it is based, is a statement of fact and not a comment. Again, the comment must be fair, and it cannot be fair if the facts alleged as its basis are untrue; or if the opinion is one that a fair-minded man might not reasonably form upon the facts on which it is put forward as being based; or if it is stated maliciously and for the purpose of injuring the person criticised, and not as bona fide criticism, although the fact that it is unnecessarily strong does not make it unfair if it is bona fide. (citations omitted)
No doubt the point at issue was not under consideration at that time, but it can be seen that Jordan CJ put some emphasis upon the fact that the facts on which the comment was based must be available to the readers or listeners.
In Theophanous v Herald & Weekly Times Limited (1994) 182 CLR 104, Mason CJ, Toohey and Gaudron JJ said in passing at 133:
Fair comment is available only for the expression of opinion and, then, only if the comment is based on facts which are notorious or truly stated.
That observation again suggests that the facts must be stated, and that it is not sufficient as a general rule that there is an allusion to a general topic.
Mr Swan submits that this approach is too narrow. He relies on observations made by McHugh J in Pervan (above). That case was concerned with the application of provisions of the Criminal Code of Queensland, which provisions contained “the main body of the law of defamation in Queensland” (Pervan at 314).
McHugh J dissented in the result. In the course of his reasons he made an extended examination of the “practical operation of the defence of fair comment in various situations”: at 335. At 340 he dealt with a situation in which:
The defamatory comment may be based on facts which are not published in the article.
In this part of his reasons he draws a distinction between the facts which form the basis of a comment, and the subject-matter of the comment. This passage is central to Mr Swan’s argument. McHugh J said at 340:
This is often the case where a play or sporting spectacle is being reviewed, but it is certainly not limited to plays or spectacles. To raise the defence of fair comment in this class of case, it is sufficient that either expressly or by implication the defendant has identified the subject-matter of the comment. The defence is available even though the publication does not state or indicate the facts which form the basis of the comment. As long as the subject-matter of the comment is identified, the defendant is entitled to the benefit of the defence of fair comment if he or she is able to prove one or more facts which will justify the comment. The difference between identifying the subject-matter or substratum of fact of the comment and the facts which justify the comment is vital. The comment must indicate the subject-matter or substratum of fact of the comment, but the defence does not fail because the publication does not indicate the individual facts which are the basis of the comment. It is the "substratum" of fact not the individual facts which must be identified. If a critic states that a professional footballer played badly and the jury holds that the statement is comment, the critic is entitled to rely on any fact which will support that comment even though the fact is not stated in the article or notorious and no reader saw the game.
He went on to refer to the speeches of Lord Porter and Lord Oaksey in Kemsley as supporting his view. He concluded at 341-342:
If the facts forming the basis of the comment always had to be drawn to the reader's attention, effective comment on many subjects would be frustrated. No doubt, it is for this reason that the common law provides for a defence of fair comment if the subject matter or "substratum of fact" of the comment is sufficiently indicated without requiring that the particular facts justifying the comment be set out or indicated. The plaintiff's protection is found in the rule that the defence will fail unless the defendant proves the truth of sufficient facts to justify the comment.
He dissented from observations by Sugerman JA in Rigby v Associated Newspapers Limited (1966) 68 SR(NSW) 414 at 425, which observations were repeated by that Judge in Uren v Australian Consolidated Press Limited (1969) 71 SR(NSW) 29. In those cases Sugerman JA had said that the facts need not be stated in the matter sued upon, provided they were “notorious” or were “notorious or sufficiently indicated”: see the citations at 343-344 and at 345. McHugh J said at 345:
But, as I have pointed out more than once, it is the subject-matter of the comment which must be notorious or sufficiently indicated.
He added that the statements by Sugerman JA were erroneous.
The majority (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) did not find it necessary to deal with all of the issues with which McHugh J dealt. They expressed their agreement with the approach of Sugerman JA in Rigby (at 327), but their concern was with his approach to a statutory provision, and it may be that their Honours did not intend to endorse his statement of the position at common law. However, in a passage in their reasons that might be a reference to the position at common law, their Honours referred (at 327) to a comment based on facts which were:
… sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded. (footnote omitted)
Having given careful consideration to the reasons in Pervan, I am not persuaded that the views expressed by McHugh J were endorsed by the majority.
In any event, it is not clear that the approach taken by McHugh J leads to the conclusion for which Mr Swan contends. At 345, in the passage already cited from the reasons of McHugh J, he remarked that “the subject-matter of the comment” is the thing that must be “notorious or sufficiently indicated”.
I assume for present purposes that Channel 9 wishes to argue that the subject-matter or substratum of fact on which it claims to have made a fair comment, is the abusive relationship between Mr Clarke and Ms Pringle, and the use of domestic violence by Mr Clarke towards Ms Pringle. But I do not agree that a reference in the program to “domestic violence” was a reference to matters either notorious or sufficiently indicated to provide a basis for comment. A bare reference to domestic violence or an abusive relationship does not identify any particular facts or matter, other than the charges and allegations ventilated in the program.
But in any event I consider that I should apply the law stated in Kemsley v Foot as it has been understood in the cases referred to by me.
The question of domestic violence in the relationship between Mr Clarke and Ms Pringle, as distinct from the court proceedings and their aftermath, is quite unlike the examples given by Lord Porter of subject-matters before the public, and in particular is not a matter on which “the public have at least the opportunity of ascertaining for themselves the subject-matter upon which the comment is founded”. The present case is different from the kind of situation envisaged by the House of Lords in Kemsley v Foot.
I do not agree that authority supports the view that if a comment is made on a topic or matter referred to by the commentator, any fact at all that would establish that topic or matter as a matter of fact may be relied upon as a basis for the comment. An example will illustrate what I mean. Assume that a newspaper publishes an editorial in which the writer states baldly that events in the past of X make X unfit to hold a public office. Assume that the fitness for office of X has not previously been publicly canvassed, nor have allegations adverse to X, been raised in any public forum. If sued by X, is the newspaper entitled to plead that the statement that X is unfit for public office is fair comment on the subject-matter indicated, the past of X, and on the basis that the newspaper may now rely on any discreditable incident in the past life of X to establish the basis for the comment? It seems to me that to allow the publisher in that situation to maintain a plea of fair comment would be to depart from the underlying rationale of the reasons of their Lordships in Kemsley v Foot. Underlying the reasoning of their Lordships is the notion that a reference to a subject-matter will suffice if the public have, or part of the public has, access to the facts that establish the matter upon which the comment is made, and can make their own judgment of the subject-matter and of the comment.

An allusion or reference to a topic or subject-matter in a defamatory publication may provide a basis for comment to be made on the topic or subject-matter, if the underlying facts are well known, or have been put before the public or part of the public. In that situation the unstated facts might provide a basis for a comment. But that is not the case if the allusion or reference to a topic or subject-matter is to one comprising matters that are not known or available or submitted to the public.
In the present case, apart from the reference to the charges against Mr Clarke and the court proceedings, and the “recorded police statement” that contains an alleged admission by Mr Clarke, the program does no more than refer baldly to domestic violence in the relationship between Mr Clarke and Ms Pringle. In my opinion that reference does not entitle Channel 9 to rely on whatever facts it might find in Mr Clarke’s relationship with Ms Pringle to provide a basis of fact on which it says it has commented. Accordingly, the Judge was correct in striking out the particulars from para 6 of the Defence.
A matter of public interest
I can deal with this issue more briefly.
The defence of fair comment will succeed only if the comment is made on a matter of public interest. The matter of public interest must be found in or derived from the matter that is submitted to the public for comment. It follows that the identification of the relevant public interest will be limited by the extent of the subject-matter upon which the comment is made.
There are two difficulties with the subparagraphs that the Judge struck out from para 5 of the Defence.
First, they do not identify the relevant public interest. The subparagraphs simply state a series of facts or events. One can deduce the public interest that might be said to arise from these facts or events, but in fact the relevant public interest is not stated. In my opinion that should be done.
Second, and more significantly, if the Judge was right to strike out the same allegations of fact from para 6, I fail to see how those very same matters can be said to establish or give rise to a public interest on which comment is based. As I have already said, the relevant public interest must be found in the matter on which comment is made, and if that matter is the charges, the court proceedings and their aftermath, and the alleged admissions by Mr Clarke, it follows in my opinion that the matter from which the public interest is derived does not include other incidents in the course of the relationship between Mr Clarke and Ms Pringle.
For those reasons, in my opinion the Judge was correct to strike out the particulars from para 5 of the Defence.
It is not necessary to consider whether and to what extent the public interest identified by Channel 9 must be identifiable within the meaning of the imputations pleaded by the plaintiff, or must address those imputations. The uncertainty about the comment that Channel 9 claims it has made, and about the public interest on which Channel 9 relies to support its Defence makes it undesirable to do so.
Conclusion
For those reasons, which differ somewhat from the reasons given by the District Court Judge, I would dismiss the appeal.
There is one further comment which should be made.
The program complained of was apparently published in August 1999, about eight years ago. The proceedings were issued in January 2003. The application to strike out parts of the pleadings was argued before a Master of the District Court on 13 February 2006, decided by him in May 2006, and then by the District Court Judge in August and December 2006. This issue alone has now consumed about 18 months.
It is desirable that these proceedings be brought to trial as promptly as possible, and be dealt with. It is regrettable that, so many years after the event, the parties are still arguing over the pleadings.
LAYTON J: I agree that the appeal should be dismissed and I respectfully agree with the Chief Justice’s reasons.
In addition, I raise further concerns about the state of the pleadings which were before the District Court Judge when he was dealing with the matter. I consider that the pleadings gave rise to significant problems for the Judge when determining the arguments addressed to him by the parties. In my view the pleadings, as they stand, do not lay a clear and proper foundation for the defence sought to be mounted by Channel 9.
Although aspects of the pleadings are referred to in the Chief Justice’s reasons, for clarity I will nonetheless repeat some information.
The Statement of Claim
In paragraph 12 of his Amended Statement of Claim (“the Statement of Claim”), Mr Clarke sets out certain excerpts from the broadcast which he alleged were defamatory. The full text of the broadcast was also annexed to the Statement of Claim.
In relation to these excerpts, paragraph 13 of the Statement of Claim pleads the imputations:
13The said words in their natural and ordinary meaning meant and were understood to mean:-
13.1   Clarke should have been convicted of domestic violence in the case brought in the District Court;
13.2   Clarke subjected Pringle to repeat criminal assaults during their relationship;
13.3   Clarke was responsible for Pringle making an attempt on her life, that is overdosing in ending up [sic] in the Flinders Medical Centre Intensive Care Unit by his insensitively and wrongly claiming to have cleared his name or obtained justice.
Thus, Mr Clarke alleges three specifically worded imputations.
The Defence
The relevant defence for the purposes of this appeal is the Third Further Amended Defence (“the Defence”). In response to paragraph 13 of the Statement of Claim, paragraph 4 of the Defence denies that “the words complained of” by the plaintiff have the meaning pleaded by Mr Clarke in paragraph 13 of his Statement of Claim. The paragraph further asserts that in any event these meanings are not defamatory of Mr Clarke.
In paragraph 5 of the Defence, Channel 9 pleads that:
To the extent that the matter complained of is found to have been published as alleged, the matter complained of comprised fair comment upon a matter of public interest.
Thereafter Particulars of Public Interest, comprising 41 subparagraphs, are set out. I note that the Defence has some confusing aspects. It does not plead to the excerpts of the broadcast set out in paragraph 12 of the Statement of Claim, there is only a pleading as to the imputations contained in paragraph 13 of the Statement of Claim. Therefore, when one comes to the pleading in paragraph 5 of the Defence, there is no articulation as to what “the matter complained of” is referring to. In other words, is it referring to the excerpts or is it referring to the imputations? This lack of clarity is important in view of the broad argument sought to be made by Channel 9 as to the scope of fair comment, which argument is addressed in the Chief Justice’s reasoning.
Then follows paragraph 6 of the Defence, in which Channel 9 pleads:
That portion of the subject broadcast set out in the Schedule 1 hereto comprised Statements of Facts which are true in substance and in fact and the balance of the broadcast comprised comment.
Schedule 1 is annexed to the Defence. Paragraph 6, taken in conjunction with the Schedule, purports to differentiate between matters of “comment” contained in the broadcast and matters of “fact”. This differentiation immediately raises the issue of whether the “comment” referred to in this paragraph, being the balance of the broadcast other than that which is identified in the Schedule, is identifying the comments which comprise the defence of fair comment. If so, how does this relate in any way to “the matter complained of” by the plaintiff, which is referred to in paragraph 5 of the Defence as being fair comment. Is this the same, different, overlapping or inclusive?
Paragraph 6 also contains a number of subparagraphs. They are headed “FACTS AND MATTERS RELIED ON IN SUPPORT OF THE TRUTH OF THE STATEMENTS OF FACT”. Counsel informed the Court that these subparagraphs were set out because of Rule 46.19 of the Supreme Court Rules 1987 (now repealed), which required a defendant making a plea of fair comment on a matter of public interest to:
… give particulars stating which of the words complained of he alleges are Statements of Fact and of the facts and matters he relies on in support of the allegation that the words are true.
Counsel for the appellant candidly admitted that the heading to paragraph 6 was inappropriate. Instead, he submitted that the matters set out in the subparagraphs should be understood as being “the facts and matters relied on in support of the comment” and which were alleged to be true. Schedule 1 was the Statement of Facts on which the comment is based and asserted to be true in substance and in fact.
It is to be noted that the matters in Schedule 1 are not pleaded as facts identified by the pleader, they are simply a series of extracts from the program which repeat the words of the various speakers.
I now turn to subparagraphs 6.1 to 6.18, being the alleged supportive facts. As the Chief Justice indicates in his reasons, it appears to be common ground that these matters are to be found in the broadcast, or they are notorious.
Subparagraph 6.19 of the Defence repeats the 22 paragraphs found in subparagraph 4.3 of the Defence and are described in the Defence as “Particulars of Justification”. The Judge struck them out from paragraph 4 and Channel 9 no longer pursues this defence. These struck out subparagraphs are now repeated in subparagraph 6.19. The 22 subparagraphs allege individual incidents which appear to have occurred in private between Mr Clarke and Ms Pringle.
Comment on the pleadings
It became apparent in the course of the submissions of the appellant’s counsel that the defence case sought to be mounted by Channel 9 differed significantly from what appears to be stated in the Defence
It is convenient first to deal with the pleadings as they stand.
The pleadings, as they stand, raise the issue of whether Mr Clarke’s pleaded imputations, or some lesser imputation contained in them on which Mr Clarke is permitted to rely, are defamatory. Alternatively, if they are defamatory, Channel 9 seeks to raise the defence of fair comment.
Channel 9 has not identified in its pleadings any comment which it asserts to be fair. As previously indicated, the defendant in paragraph 5 simply refers to “the matter complained of” by the plaintiff to the extent that it is found to have been published. This pleading is meaningless in the context and is an inadequate plea. Also, there is further uncertainty as to what comment Channel 9 alleges to have been made which was fair, having regard to the pleading in paragraph 6.
Channel 9 in its pleadings does not identify the facts on which any comment is said to be based. The Schedule, which comprises extracts from the broadcast, refers to questions “about the way the law treats allegations of domestic violence”. It refers to the charges of assault against Mr Clarke. It contains parts of the program which make reference to claims that Mr Clarke repeatedly hit Ms Pringle, and handled her forcefully. It contains references to Ms Pringle as “following a pattern familiar to many battered women”. It is at best a shotgun approach to pleading by reference to a bundle of matters of alleged fact contained in the broadcast, which are identified by negation; that is, Channel 9 does not characterise them as comment.
These pleadings are confusing enough without the additional oral submissions which were made in order to clarify Channel 9’s defence.
Counsel for the appellant submitted that if the meanings ascribed by the plaintiff are found, the alleged imputations are not fact but are comments which are alleged to be fair and in the public interest. Second, it was submitted that even if fair comment was not proved in relation to these specific imputations, Channel 9 would seek to argue that the broadcast as a whole is fair comment on a matter of public interest.
I agree with the Chief Justice’s conclusion that, to the extent that Channel 9 may seek to rely upon comments which address imputations other than those identified by Mr Clarke, Channel 9 should identify the comments to be found in the words complained of, which it will seek to defend as fair comment.
The matter becomes even further confused when counsel for the appellant sought to argue that the defence of fair comment applied to the whole of the broadcast, save for those matters which were separately identified in the Schedule as Statements of Fact. On this contention, the plaintiff would need to sift out the matters which remained, after subtracting the alleged Statement of Facts in the Schedule, in order to ascertain what is alleged to be fair comment. Apart from this being a highly unsatisfactory process for proper pleading, when one looks at the balance of what remains after such subtractions, the fair comment sought to be pleaded as a defence to the defamation contains a random mixture of matters including statements made by the reporter about Ms Pringle’s alleged new partner, together with statements made by Mr Derryn Hinch. This submission further reinforces the inappropriateness of the pleadings as they stand, as well as the use to which the appellant seems to want to put those pleadings during any trial.
Conclusion on the pleadings
In my view, these issues arising from the pleadings require further consideration in order to delineate the real matters of contention between the parties. At the present time the pleadings are vague and uncertain, but of course I recognise that this will be a matter for the trial Judge to consider and I am hopeful that the trial Judge will be assisted by these comments.
KELLY J: I agree that the appeal should be dismissed, for the reasons given by the Chief Justice.