Channel Seven Adelaide Pty Ltd v Manock

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HIGH COURT OF AUSTRALIA

GLEESON CJ,
GUMMOW, KIRBY, HAYNE AND HEYDON JJ

CHANNEL SEVEN ADELAIDE PTY LTD  APPELLANT

AND

DR COLIN MANOCK  RESPONDENT

Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60
13 December 2007
A21/2007

ORDER

1.        Appeal dismissed.

2.Special leave to cross-appeal be granted and the cross-appeal be treated as instituted, heard instanter and allowed.

3.Set aside orders 2-5 of the Full Court of the Supreme Court of South Australia made on 18 October 2006 and, in their place, order that paragraphs 3.1-3.39, 8.1 and 8.2 of the further amended defence be struck out.

4.The appellant pay the respondent's costs of the appeal and the cross-appeal.

On appeal from the Supreme Court of South Australia

Representation

R J Whitington QC with S J Doyle for the appellant (instructed by Kelly & Co Lawyers)

G O'L Reynolds SC with N J T Swan, R W Potter and A Williamson for the respondent (instructed by Lawson Smith Lawyers)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Channel Seven Adelaide Pty Ltd v Manock

Defamation – Defences – Fair comment – Promotion of a future edition of a television programme alleged to be defamatory – Defendant pleaded fair comment on a matter of public interest – Whether the allegedly defamatory statements constituted fact or comment – Distinction between fact and comment – Whether the facts on which the comments were alleged to be based were sufficiently identified – Construction of the rule from Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 – Relevance of imputations conveyed by the promotion – Whether the alleged comments were fair – Whether reasonableness is a requirement of fairness.

Defamation – Pleading and practice – Whether defence of fair comment should have been struck out – Whether defendant should be given an opportunity to re-plead defence of fair comment.

Words and phrases – "comment", "fact", "fair", "imputation", "substratum of fact", "sufficiently indicated".

  1. GLEESON CJ.   The facts and issues in the appeal are set out in the reasons of Gummow, Hayne and Heydon JJ ("the joint reasons").  I agree with the orders proposed in those reasons. 

  2. What the joint reasons describe as issues (c), (d), and (e) come down to a question similar to that which Eady J formulated for decision in Lowe v Associated Newspapers Ltd[1].  There a newspaper had described a "manoeuvre" of the claimant as "a repellent piece of financial chicanery."  The defamatory meaning alleged was that the claimant had obtained ownership of a football club "by underhand and dishonest means".  Eady J said that the plea of fair comment was "to be scrutinised in order to see whether the particulars are such that a person could indeed honestly come to the conclusion, in the light of them, that the claimant had been dishonest."[2]  In the present case, the meaning alleged was based on an assertion in the published matter, which related to…

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Details
Case
[2007] HCA 60
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Channel Seven Adelaide Pty Ltd against a decision of the Full Court of the Supreme Court of South Australia concerning a defamation action brought by Mr Manock. The dispute arose from a television programme promotion that Mr Manock alleged conveyed defamatory imputations about him. Channel Seven sought to rely on the defence of fair comment on a matter of public interest.

The central legal issues before the High Court were whether the allegedly defamatory statements within the promotion constituted fact or comment, the proper approach to identifying the factual substratum upon which a defence of fair comment is based, and whether the defence, as pleaded, sufficiently identified the facts relied upon to give the plaintiff fair notice of the case to be met. The Court also considered the requirements for a defence of fair comment to be considered "fair" and whether reasonableness was an element of fairness.

The High Court, in a joint judgment, reasoned that the defence of fair comment requires that the facts upon which the comment is based must be sufficiently indicated in the pleading. The Court found that the defence, as pleaded, failed to adequately identify the specific facts that were the subject of the alleged comment, particularly in relation to the imputation that Mr Manock had deliberately concealed evidence. The Court applied the principles established in *Pervan v North Queensland Newspaper Co Ltd*, emphasizing the need for clarity and specificity in pleading the factual basis of a fair comment defence. The Court also noted that the defence must address the meaning of the defamatory matter as pleaded by the plaintiff.

The High Court allowed the cross-appeal, setting aside certain orders of the Supreme Court and striking out specific paragraphs of the defence relating to the fair comment defence. The appeal by Channel Seven was dismissed.

Orders

Orders of the court

1. Appeal dismissed.

2. Special leave to cross-appeal be granted and the cross-appeal be treated as instituted, heard instanter and allowed.

3. Set aside orders 2-5 of the Full Court of the Supreme Court of South Australia made on 18 October 2006 and, in their place, order that paragraphs 3.1-3.39, 8.1 and 8.2 of the further amended defence be struck out.

4. The appellant pay the respondent's costs of the appeal and the cross-appeal. (Joint decision of Gummow, Hayne, Heydon JJ, Gleeson CJ agreeing with orders in a separate judgment, Kirby J agreeing with the orders of the joint judgment, with separate reasons and would have added an additonal order)

Background

Background to the litigation

The issues on the appeal also concern the distinction between fact and comment; the consequences of the intermingling of fact and comment; the sufficiency of identification of the factual basis for the comment; and the requirement that the defence address the meaning of the defamatory matter pleaded by the plaintiff. The procedural background The pleadings. On 22 March 2004 the plaintiff instituted proceedings in defamation against the defendant. The statement of claim alleged that the promotion "in its ordinary and natural meaning meant and was understood to mean that the plaintiff had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder". Obviously if that meaning is found, the promotion made a very grave allegation of misconduct by the plaintiff – a serious crime[17], a most serious breach of duty on the part of a professional assisting the authorities in a murder prosecution, and a wicked act which could have caused a grave injustice to the accused. [17]The Criminal Law Consolidation Act 1935 (SA), s 243, provides that it is an offence to conceal anything that may be required in evidence at judicial proceedings with the intention of influencing the outcome of judicial proceedings. Section 242(1) creates the offence of making a false statement under oath. For each offence the penalty is imprisonment for 7 years. On 16 June 2004 the defendant filed a brief defence denying all allegations. On 2 March 2005 that defence was replaced by an amended defence denying that the promotion bore the meaning alleged by the plaintiff, denying that it referred solely or primarily to the plaintiff, and pleading numerous positive defences including fair comment on a matter of public interest, justification, absence of reputation and qualified privilege. On 12 July 2005 a further amended defence was filed. The defendant's plea of fair comment took the following form: "Further, or in the alternative, the defendant says that the following words: 3.1 the new Keogh facts;3.2 the evidence they kept to themselves; 3.3the data, dates and documents that don't add up; and3.4 the evidence changed from one Court to the next,constitute fair comment on a matter of public interest."There followed 10 pages of particulars[18]. The first of those pages, under the heading "Particulars of Public Interest", pars 3.5-3.17, made various allegations on that subject. The last nine of those pages, under the heading "Particulars of facts upon which comment is based", in pars 3.18-3.39, alleged that the plaintiff had conducted an inadequate investigation and given inaccurate evidence[19]. [18]They are set out in Manock v Channel Seven Adelaide Pty Ltd (2006) 95 SASR 462 at 464-470 [9]-[11].[19]The District Court Rules 1992 (SA) (Civil), r 46A.02(b), provided:"All pleadings are to:...(b)plead only the material facts relied upon and not the evidence or arguments by which they are to be proved".Rule 46A.05(2)(b) and (c) provided:"The Defence must plead, but plead only:...(b)the material facts relied upon to constitute any ground of defence on which the defendant bears an evidentiary or a legal onus of proof;(c)such further material facts as are necessary to give other parties fair notice of the defendant's case which they will have to meet".Rule 46A.09(1) and (2) provided:"(1)No order is to be made that any further material facts are to be pleaded other than where the material facts pleaded do not disclose facts sufficient to give the other parties fair notice of the case which they will have to meet and the party seeking them would be significantly prejudiced in the conduct of its case by not having them. (The intent of Rule 46A is that parties should include all material facts in their pleadings as initially filed so that there is no unfairness to another party by any lack of particularity and if they have not done so the trial Judge may refuse to allow that party to present a case which is outside the terms of its pleading.) (2)No pleading is embarrassing for want of particularity unless the missing particulars would be ordered under (1)."Paragraph 3 of the further amended defence is structured on the theory that pars 3.1-3.4 are material facts which are not particulars, and pars 3.5-3.39, inter alia, are material facts which are, in the language of r 46A.09(1) and (2), designed to give "particularity" under r 46A.05(2)(c) to the material facts in pars 3.1-3.4 pleaded pursuant to r 46A.05(2)(b) by giving the plaintiff fair notice of the case he has to meet.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ GUMMOW, HAYNE AND HEYDON JJ

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Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, HAYNE AND HEYDON JJ

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