Channel 9 South Australia Pty Ltd v Clarke

In the case of Channel 9 South Australia Pty Ltd v Clarke, the plaintiff, Channel 9 South Australia Pty Ltd, brought an action for defamation against the defendant, Clarke, following the broadcast of certain material by Channel 9. Clarke sought to defend the defamation claim by way of the defence of fair comment, but the plaintiff moved to strike out certain particulars of the Defence on the grounds that they were not pleaded in accordance with the relevant legal principles. The Full Court of the Supreme Court of South Australia was called upon to determine whether the defendant could plead facts not identified in the published material, and whether the particulars subject to the order to strike out were part of the subject-matter or substratum of fact sufficiently indicated by the publication.

The court held that the defence of fair comment may be made on a subject-matter where the underlying facts are well known or before the public, but in this case, the facts pleaded were not well known. The court found that the decision to strike out the particulars was correct, and dismissed the appeal. The court emphasised the importance of ensuring that the particulars pleaded are consistent with the facts set out in the publication itself or are notorious or readily obtainable. The court also commented on the inappropriateness of the pleadings, noting that there were aspects of the Defence that were unclear and may give rise to problems at the trial.

The court held that the facts pleaded in the particulars were not part of the subject-matter or substratum of fact sufficiently indicated by the publication, and therefore could not be used to support the defence of fair comment. The court found that the Judge's decision to strike out the particulars was correct, and dismissed the appeal. The court emphasised the importance of ensuring that the particulars pleaded are consistent with the facts set out in the publication itself or are notorious or readily obtainable. The court also commented on the inappropriateness of the pleadings, noting that there were aspects of the Defence that were unclear and may give rise to problems at the trial.

The court's decision highlights the importance of ensuring that the particulars pleaded in a Defence are consistent with the facts set out in the publication itself or are notorious or readily obtainable. The court found that the facts pleaded in the particulars were not part of the subject-matter or substratum of fact sufficiently indicated by the publication, and therefore could not be used to support the defence of fair comment. The court also commented on the inappropriateness of the pleadings, noting that there were aspects of the Defence that were unclear and may give rise to problems at the trial. These comments may be of assistance to practitioners when drafting pleadings in defamation cases.