Channel Seven Adelaide Pty Ltd v Manock

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…