Channel Seven Adelaide Pty Ltd v Manock

[2007] HCATrans 416

[2007] HCATrans 416

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A21 of 2007

B e t w e e n -

CHANNEL SEVEN ADELAIDE PTY LTD

Appellant

and

DR COLIN MANOCK

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 8 AUGUST 2007, AT 9.31 AM

(Continued from 7/8/07)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Reynolds.

MR REYNOLDS:   Thank you, your Honour.  Can I announce my appearance this morning with my learned friend, Ms A. Williamson.  I would like to deal this morning first of all briefly with - - -

KIRBY J:   I cannot hear you. 

MR REYNOLDS:   I must start off very gently, your Honour.  I will speak up now. 

GLEESON CJ:   I want to hear every word.

MR REYNOLDS:   I will start off with three points in relation to what I will describe as the Kemsley v Foot issue and then I will deal with each of the four issues which we understand arise on the appeal.  The first matter I wanted to raise in relation to the Kemsley issue or the issue about identification of facts is that I submitted yesterday that if your Honours were to accept a defence in this form, your Honours would require a proper pleading of knowledge of the relevant facts.  I took your Honours briefly to the decision in Lowe which tends to support that proposition.  There is a second group of particulars which, I submit, would also need to be in this pleading which are not currently there.  The problem, I submit, with the current particulars is that there is a whole series of argumentative conclusions or opinions which are not stated with relevant primary facts and, I submit, that it is a bread and butter proposition in this area of the law that the comment must be based on factual material, not other comments. 

If the material which is in the particulars was itself in the matter complained of the submission would be made that that material is not fact, it is clearly argumentative conclusions without stating the primary facts; therefore, in effect, it is comment on comment.  I submit that the defendant should not be in a better position by reason of not having put any of this material in the matter complained of than it would be if it had put that material in the matter complained of, because this defence, as your Honours well know, is based upon a clear demarcation in the publication of, one, statement of facts, two, statement of opinions based on the relevant facts. 

HAYNE J:   In respect of that distinction, some preliminary examination suggests that these matters were matters of examination in the United States in the 1960s and before.  For my own part, I would be assisted by whatever the parties may wish to later submit having regard, among other things, to these sources: first, the Restatement of the Law of Torts in the Prosser edition; second, two articles – and there may well be many other articles that are relevant – but the first one is 23 Maryland Law Review 76, the second is 15 Vanderbilt Law Review 1203.

Those might also be examined having regard to an article by P.J. Sutherland, Fair Comment by the House of Lords, 55 Modern Law Review 278, a comment not on Kemsley v Foot directly but on Telnikoff v Matusevich.  There is, I suspect, in the American literature, and perhaps in the English literature – as well, also HeinOnline would suggest Singapore and elsewhere – a very considerable degree of writing on this subject matter.  I would be assisted if the parties gave some consideration to it. 

GUMMOW J:   There was an English defamation report too, Command 5909, reported in 1975 that may have looked at this question as well.  It is more productive, perhaps, to do that than to try and pass Lord Porter.

MR REYNOLDS:   In one sense I am glad to hear your Honour say that.  Might the parties have two weeks within which to provide that material neither providing its document to the other beforehand?

GUMMOW J:   Yes.

MR REYNOLDS:   Thank you, your Honour.  I am indebted to your Honour Justice Hayne for that assistance.  There is a practical reason underlying this submission because one would suspect, as a matter of commonsense, looking at the sort of facts that are particularised here, that a compere on a program like Today Tonight is most unlikely to have knowledge of very many facts of this kind at all and even less knowledge of what can properly be called primary facts.  One suspects, we suspect, that if the defendant was forced to plead as the Lowe decision suggests the case should be pleaded that it would be impossible for this defendant to be able to do that and that therefore the defence would fail.  Obviously I want to be as brief as I can. 

In one sense I can make a global submission in relation to paragraphs 3.35 to 3.39 and also paragraph 3.21 in particular.  It is mainly paragraphs 3.35 to 3.39 that my learned friends rely upon.  Can I move over this material very, very quickly, if I may, to give your Honours some idea of what I mean by argumentative opinions or conclusions being stated without primary facts.  If your Honours go to paragraph 3.38 at page 19 of the appeal book, this refers back to paragraph 3.36 which talks about the aims of a forensic autopsy.  That is what all of this is predicated upon.  We do not have any primary facts from which to judge whether or not these aims as set out in paragraph 3.36 are, in fact, the aims of a forensic autopsy.  One would think one would need an expert opinion to form that view.  Likewise, paragraphs 3.37 and 3.39, when one is talking about the requirements on an expert witness in giving evidence, again there is no basis for any of that

In paragraph 3.21 there are statements repeatedly that tests were inadequate, but there is no basis for that expression of opinion.  Paragraph 3.35.10 at the top of page 17 talks about an opinion which could not have been held by competent forensic pathologists.  Again, one would need some expert opinion to say that.  There are repeated references, for example, in paragraph 3.35.15 to a failure to properly or adequately disclose.  That same paragraph talks about proper scientific testing.  We get similar wording throughout paragraph 3.35 and all of its subparagraphs, the words “unreliable”, “unsound”, “unscientific”, “no scientific basis”, “wrongly rejected”, “appropriate scientific means”, “no greater scientific merit” and others.  All of these phrases are used but they are all, we submit, clearly opinions or conclusions based upon unstated primary facts. 

If your Honours are to reject the primary attack which we make on this pleading, we submit your Honours would still strike out either the whole of the defence or reaffirm the orders made by the Full Court on the basis that these particulars of knowledge and particulars of primary fact have not been provided.

KIRBY J:   I thought yesterday you had another fallback position, that the Court would not require the inclusion in the matter complained of of all of the matter that is relevant to and supportive of the fairness of the comment, but that it would cut it off at the point of the making of the comment, so that you could not, as it were, build your case up subsequently by things you learned later.  I can understand that and, in fact, that has a certain attraction because it meets the matter that is concerning me, that you could never in many publications incorporate, even in summary form or by reference, all of the matters you knew at the time but you should not be allowed to bolster your claim to fairness of the comment by subsequently discovered facts.

MR REYNOLDS:   Your Honour, thank you for that because I really should have given your Honours references to three paragraphs at least and that is references to the Medical Board Tribunal where there was a hearing in November 2004, eight months after the broadcast.  I will give your Honours these references; appeal book page 13 at about line 18, appeal book page 13 at about line 31 and appeal book page 17 at about line 28.

GUMMOW J:   There are two references on page 13, are there not?

MR REYNOLDS:   Yes, I said that, your Honour.

KIRBY J:   In this note that you are going to send in, would you differentiate between the results that would follow for the orders that would be made if the different submissions were accepted?  In other words, if your primary attack which is based on Pervan were accepted, that upholds the decision of the court below, I think. 

MR REYNOLDS:   It would also permit your Honours to strike out the whole defence but that is the only difference, really, between the cross‑appeal and the notice of contention.

KIRBY J:   If this fallback position that you announced yesterday, then that would have a consequence for matters of particularity that are relied on and I would like to have them specified.  As to the fallback position number two that you propounded this morning similarly discriminating between the consequences for the orders would be helpful. 

MR REYNOLDS:   Thank you.  Can I deal secondly with the issue your Honour Justice Gummow raised yesterday about whether there was an article by Professor Morison.  We have done, necessarily, a quick search overnight.  There was an article published by Professor Morison in 1959 Volume 3 Sydney Law Review 4 when the 1958 Act came in. 

KIRBY J:   It is called “The New Law of Verbal Injury”, I think. 

MR REYNOLDS:   Exactly.  That is the title.

KIRBY J:   Does it deal with Kemsley v Foot?

MR REYNOLDS:   I have not looked at it myself.

KIRBY J:   I did not think so. 

MR REYNOLDS:   My learned junior, as I recall, mentioned to me that there did not seems to be any reference to that case in the article but, to be fair to her, I do not know that she has fine-tooth combed it.  Perhaps if I can also put that in the note. 

KIRBY J:   Yes.

MR REYNOLDS:   I was going to suggest that it is possible that your Honour Justice Gummow’s recollection is not derived from an article but rather from Professor Morison’s book entitled I think Cases on Torts.  Could I have leave to provide, without comment, a reference to that. 

GUMMOW J:   Yes.  It is derived from attendance at lectures. 

KIRBY J:   Three of us were taught by him.

MR REYNOLDS:   It is a shame I cannot call your Honour as a witness.  If I could have leave to provide a reference to that as well, that is to any article by Professor Morison or any other work by him.  Finally, on the Kemsley v Foot point, your Honour Justice Hayne yesterday took me up, as I recall, on a submission I made about the word “arguable” at page 357.  Your Honour, with respect, properly drew my attention to the passage on page 354 which also deals with this issue which I should have drawn to your Honours’ attention, but can I say two things.  Let me go back a moment.  I think the point that your Honour Justice Hayne was implying was that this page suggested that their Lordships were proceeding not as if on a strikeout but rather as if it were a demurrer.  That was the substance of what your Honour was putting to me. 

Can I make two alternative submissions about that.  The first is that page 354 is equivocal on that point and that page 357 makes it clear that the Court proceeded on a strike out.  The second alternative submission is that Lord Porter did decide to proceed as if on a demurrer at page 354 but, in fact, applied a strike‑out test.  That is all I was proposing to say about the Kemsley v Foot point.  Can I move then to the appeal proper and the issues which arise on that.  Before I move to those issues, your Honours will have seen that in my learned friend’s, Mr Whitington, submissions in reply at paragraph 45 he notes that there was an error in our statement as to the relevant rules.  We accept that and I apologise for that error. 

KIRBY J:   What consequence does that have?

MR REYNOLDS:   Little, if any, I would submit.  The first issue which I would like to deal with is whether the Full Court applied a test of truth.  This is a matter which we dealt with in our written submissions at paragraphs 35 to 43.  I could obviously address your Honours for some time on that issue but in the interests of time I am content to rely upon my written submissions on that point, unless there is anything your Honours wish specifically to raise with me.  Can I move then to the next two points of the four that arise.

KIRBY J:   Could you just summarise in two sentences what the propositions there are?  Can you remind us of them?

MR REYNOLDS:   Can I say, and I should have mentioned this, this point, I submit, does not really matter because the final issue I am going to be considering is the question of whether or not the strike out should have occurred on the merits anyway.  So the question of whether or not there may have been some error of law in the Full Court’s judgment in one sense is neither here nor there given that we are on the appellant’s appeal going to consider the correctness of the decision in any event on the merits, that is, upon the proper test applied by your Honours.

The points I would make briefly are that there is no reference in the judgment to truth or justification, there is no mention of proof.  The test for whether a comment can be based on facts is well known.  Their Honours were referred to the appropriate test, certainly by my learned friend Mr Whitington, and we submit that there is certainly no statement that they applied a test of truth.  I cannot say that their Honours set out in full the whole of the appropriate test but, I submit, in substance they used words like whether the comment was supported by the facts.  That is simply a shorthand way of saying whether or not an honest and reasonable person could hold the opinion on those facts.  That is the gist of what I have put in the written submissions.

In the Full Court’s judgment their Honours say that the particulars could be struck out because those particulars could not support the comment.  In their Honours’ reasoning it is clear that they say the reason the particulars cannot support the comment is because the particulars cannot support the meaning, that is, the plaintiff’s meaning.  There is an explicit assumption in their Honours’ reasoning that the meaning of the plaintiff’s meaning and the meaning of the defendant’s comment must be, in substance, the same, and we accept that. 

My learned friend tries to undercut that reasoning in two ways.  The first is he says that the plaintiff’s meaning and the defendant’s comment do not have to have the same meaning in substance.  Second of all he says, even if they do the Court cannot assume that the plaintiff is confined to his pleaded meaning.  The effect of his submission is that it is all too difficult, given those uncertainties, to strike out a defence in this situation.  We respond in two ways.  We first of all submit that at common law the plaintiff’s meaning and the defendant’s comment do have to bear the same meaning in substance, and I will attempt to demonstrate that. 

The second proposition is that I submit that the plaintiff in this case is bound by his pleaded meaning, that is, as the pleadings presently stand he must submit that that pleaded meaning or one no different in substance is conveyed and, as your Honour Justice Kirby said yesterday, if he does not succeed in establishing that, his case will fail.  We accept that and I propose to establish that second proposition.  As to whether the plaintiff is bound by his pleaded meaning, we submit that there cannot be any real doubt at all about this proposition.  We have pleaded a particular meaning.  The issue at trial will be whether or not that meaning or one no different in substance is conveyed.  Until such time as there is an application by my client to amend, then that is the case which is before the Court and he is presently bound by that pleading and may therefore ask this Court, or ask any court, to proceed on the basis that that is his case.

To remove any doubt, my client is prepared to undertake – necessary to bind himself hereafter – only to proceed in this case upon the basis of his pleaded imputation, which means that either that imputation is conveyed or one that is no different in substance on the one hand or, alternatively, he fails.  He wishes to tie his case to that meaning and is prepared to do so irrevocably.  I submit that ultimately this issue depends to some extent upon an interpretation of the decision in Chakravarti and I submit that there is no basis in any of the judgments for asserting that a plaintiff in the position of my client is not bound by his meaning. 

I am content to leave it there and leave it to your Honours to review the judgments.  As your Honour Justice Kirby said yesterday, there is no reason why a plaintiff cannot say, putting his eggs all in one basket, that is the meaning which I seek to establish and I do not rely upon any other meaning.  If that meaning or one no different in substance is not conveyed, then I lose.  We accept in this case that my client does lose in that situation, that is, if the meaning or one no different in substance is not conveyed. 

KIRBY J:   That is all very interesting in this case, but we have to look at this case as a species of the general.  I suppose you then say, if the plaintiff does confine himself in that way, it is not unfair, as a matter of pleading practice and law, that the defendant has to meet that case and that case alone.

MR REYNOLDS:   Quite.  Let us move away from this case.  If a plaintiff ran an application like my client has the strike‑out the defence and then sought down the line to alter the imputation, either by amendment or somehow, if the case proceeded off the pleadings, at the trial on a different meaning, then the defendant would then be able to amend his defence of comment so that it dealt with the plaintiff’s new meaning.  If my client did make such an amendment application, which he now cannot because of the undertaking I have given to your Honours, but assuming that a plaintiff in my client’s situation did that, there would be an issue, first of all, about whether he should be permitted to depart from the case he previously pleaded, that is, whether the amendment should be granted, and no doubt there would be cost issues.  So that, using this case as an analogy, if my client were to back out in some future hearing, there would no doubt be costs orders made in relation to all of the strike‑out applications and all of the appeals that have followed.  That is the way the matter would be handled and the way matters are normally handled in the courts in relation to pleadings. 

Moving then to the question of whether meaning and comment have to be the same in substance, I submit that on the application before the lower courts they had to assume that the plaintiff’s meaning and the meaning of the defendant’s comment were the same in substance.  The first proposition I would like to raise in that regard with your Honours is the proposition that comment must have a meaning.  This is referred to in our written submissions in paragraph 27 where there is a quote from the Privy Council in Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728, at pages 735 to 736.

I will not read the whole of that passage because your Honours can read it to yourselves but it is important because it stresses two things and that is that the plea of comment is a plea in confession and avoidance, which means that the jury, if considering the defence of comment, would have to assume that the imputation was conveyed.  The second thing is, as their Lordships say in terms, comment must have a meaning.  So there is no doubt about that. 

KIRBY J:   What does that Delphic requirement mean?

MR REYNOLDS:   It means that it is not open to a defendant to argue as perhaps, on one view, the defendant here is suggesting that comment does not necessarily have to have a meaning ascribed to it, comment must have a meaning.  It has to be given a meaning as a matter of commonsense because, as my learned friends point out, if you are determining the objective fairness of a comment, you first have to ask, what does it mean to see if it can be based on the facts.  Likewise, on the issue of malice, it will be relevant.  It will be relevant on whether the plaintiff’s meaning and the comment relate to the same allegation and whether there is a basis in fact for the comment.  All of these issues in the law of fair comment necessarily proceed upon the basis that the court or the tribunal of fact ascertains the meaning of “comment”.

Now, the more important proposition, I submit, is this and that is that the defendant in order to succeed with a defence of comment, we submit, must establish that the meaning found by the tribunal of fact to be conveyed was conveyed as comment.  We submit that that proposition is central to the resolution of this particular issue.  Putting it in terms of – because this, I submit, assists clarity in analysing the issue – in a jury trial where there is of course a split tribunal of law and tribunal of fact, the following question would have to go for the jury’s consideration, this question, “Has the defendant established that the meaning which you have found to be conveyed was conveyed as comment?”  That, I submit, is a question which would have to be put to the jury.  Your Honours will find a precedent for that, and I will not take your Honours to the decision but give your Honours a reference to the decision of the Court of Appeal, in Radio 2UE v Parker (1992) 29 NSWLR 448 and I refer your Honours particularly to pages 464D, 464F and 469G.

This proposition is a matter which we raised in our submissions in paragraph 30 where we submitted that the defendant must accept that the plaintiff’s imputation or one no different in substance is conveyed and must show that that meaning was conveyed as comment.  A similar matter is referred to in paragraph 22.  I do not think this is a matter which my learned friends took up with us in their reply but we submit that it is bread and butter law in this area and can I refer your Honours to some authorities to establish that proposition.

The first is Radio 2UE v Parker which your Honours do not have but the relevant passage is referred to in a decision on our list of authorities called New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 and their Honours quote the relevant portion of Radio 2UE at the bottom of page 345 where page 469 of Radio2UE is quoted and also at the bottom of page 344 there is also a similar quote.  Perhaps a more important passage to take your Honours to is a passage in the decision of the Court of Appeal in New South Wales of Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174. I am not certain whether your Honours have access to that. Perhaps if I can hand up copies to your Honours.

GLEESON CJ:   Thank you.

MR REYNOLDS:   We would like to take your Honours to a passage at page 193, a page my learned friends rely upon.  There is a passage at about B which I will not read but which I rely upon in this regard but the more important passage is from D to E where Justice Samuels talks about what the trial judge needs to get the jury to consider.  He says, and I paraphrase, that the defendant must establish “that the words said to carry the imputations are . . . statements of opinion” and that is the issue that he should invite the jury to consider and these are the important words:

if the portions of the matter which allegedly give rise to the imputations specified amount to comment . . . the [comment] defence is made good –

They are the important words, and some of your Honours will recall from the special leave application that Justice Samuels did not regard the comment defence in New South Wales as a defence to the imputations.  He is talking here about the operation of the defence and says in clear terms that the meaning must be conveyed as comment and that that is an element which needs to be established by the defendant.

There are many other references I could give your Honours on this point.  There is an analogous passage in the judgment of Justice Glass in Lloyd v David Syme [1984] 3 NSWLR 346 at page 358D where he talks about the need for congruency between the imputation and the comment. My learned friend says, correctly, those are New South Wales cases where the imputation is the cause of action, but the proposition, I submit, is one which is shared in common with the common law of comment. Can I give your Honours some references in that regard. The first is Bailey v Truth and Sportsman Ltd (1938) 60 CLR 700 which I believe your Honours have. At the bottom of page 724 at about point 8 Justice Dixon talks about the parts of the libel which:

could not but be considered as imputations defamatory of the plaintiff, might . . . be held to amount to comment –

Likewise at page 725 at about point 2 his Honour says:

It is only in reference to that behaviour, if it occurred, that the imputations can be considered as comment.

Further down at point 3:

I think that the defence of fair comment was not made out in respect to the imputations mentioned –

There is another case we rely on for this, we submit, bread and butter proposition in the law of comment and that is Smith's Newspapers v Becker (1932) 47 CLR 279. I am not sure if your Honours have that judgment but I have some copies here. There are a couple of brief passages that I will take your Honours there. The first is again a judgment of Justice Dixon where he says at page 296 at about point 7 that “the serious imputations contained in the libel are not comment” and a little more clearly Justice Evatt at page 302 at about point 2:

In order to substantiate such a defence –

that is a defence of fair comment –

the defendants had to show that their description of the plaintiff as a “German Quack” was published as and for an expression of their opinion about him.

That was the imputation.  If your Honours go to page 290 at about point 7 it is said that the substance of the meaning was that the plaintiff was described “as a German quack”.  I give your Honours one other reference which is not on our list but it is a case that is often quoted in this regard and that is Myerson v Smith’s Weekly Publishing Co Ltd (1923) 24 SR (NSW) 20. There is a passage at page 26 at about point 7 where Justice Ferguson refers to various words and says:

They cannot be defended as comment at all, if they convey that imputation as a matter of fact, and not as the conclusion drawn by the speaker or writer from the facts.

There are other references I could give to similar effect.  One is Chakravarti at page 528 at about point 2.

KIRBY J:   Could you just clarify for me, did you seek to have this defence struck out on the basis that nothing in the promotion was a comment?

MR REYNOLDS:   No.

KIRBY J:   That is what I thought.  I thought you accepted for the purpose of these proceedings that these statements are a comment.  I mean, on the face of it it is at least arguable, it seems to me, that they are not comment at all, they are statements of fact.  “The new Keogh facts” that sounds like a statement of fact.  “The evidence they kept to themselves” sounds like a statement of fact.  “Dates that don’t add up”, that might be a comment.

MR REYNOLDS:   That is an issue which we dealt with yesterday but I am stuck with the way the case has been put so far.

KIRBY J:   What is the relevance of all of this material you are pressing on us now?

MR REYNOLDS:   I am sorry, your Honour, I attempted to explain that earlier.  There are four issues, as I said, that arise on the appeal.  The first is the issue of truth.  Then the second issue is my learned friend says one cannot assume that the plaintiff is bound by his meaning.  We say the plaintiff is bound by his meaning.  The third issue is whether or not the plaintiff’s meaning and the meaning of the comment must be taken to mean the same thing in substance.  The reason my learned friend is running those last two points is the Full Court struck out the comment defence by looking at the plaintiff’s meaning and seeing whether it was supported by the facts which have been particularised.  So, there is the plaintiff’s meaning and there are the facts.  He says that is a false analysis because you cannot assume that the plaintiff is bound by his meaning, so it could be something different and then he says you cannot assume that the comment is the same as the plaintiff’s meaning, it could be different in substance.

I am submitting as to the latter in that the Court must assume in dealing with this application that the meaning of the comment and the meaning of the imputation are the same in substance because comment must have a meaning and in order to succeed with the defence the meaning must be conveyed as comment or as Justice Samuels said to make good the defence the defendant must show that the portions of the matter which carry the imputations amount to comment.  If the portions of the matter which convey the imputations amount to comment, it follows necessarily that the plaintiff’s meaning and the meaning of the comment must be substantially the same.  Both arise out of the same words.  As I said before, we have to assume because this is a plea in confession and avoidance that the tribunal of fact would never get to this issue about the defence until there was first a finding that the plaintiff’s meaning had been conveyed.

There is one other reference I will give your Honours.  It is to a decision of the Hong Kong Court of Final Appeal in Eastern Express Publisher Ltd v Mo Man Ching [1999] 3 HKLRD 530, in particular, at page 541 where non‑Permanent Justice Sir Anthony Mason made a relevant statement. I will give your Honours copies of that, it is only a brief passage. This is a printout from Westlaw and the page numbers are a bit hard to find. If your Honours go to page 9 in the right‑hand top corner and go to the left‑hand column about three‑quarters of the way down, Sir Anthony with whom I think most of the justices, permanent and non‑permanent agreed, said that:

In order to make out the defence of fair comment the Appellants had to show that (i) the defamatory imputation was comment –

Which is the same, really, as Justice Samuels, that is, to make good the defence the defendant must show that the portions of the matter which carry the imputations amount to comment.  Though that proposition is accepted, I submit it must be the case that on an application of this kind the Court is entitled to assume that the meaning of the comment and the meaning of the plaintiff’s meaning are the same in substance because necessarily they will be derived from the same words in the matter complained of.

GUMMOW J:   I see that on page 9 in the right‑hand column there is a reference after Kemsley v Foot to Harper and James, the 1956 edition.  That might also be worth a look.  It is the leading US text on torts.

MR REYNOLDS:   Page?

GUMMOW J:   Page 9, just after Kemsley.

MR REYNOLDS:   I am sorry, it turns out I have a different reprint.  Thank you, your Honour.  We will have a look at that, also.  So, I submit there is no substance in this argument that somehow the meaning and the comment can have two different meanings.  One does not need to get into the issue, I submit, of how the defence is pleaded, one simply needs to look at whether or not the strike out could have proceeded on this and I submit that it could have.

I mentioned yesterday a fallback submission that I make in that regard and in our submissions at paragraph 34(iii) where we make reference to some observations made by Justice Meagher in the decision in New South Wales Aboriginal Land Council v Perkins, the point that his Honour made there is that consideration of whether the defence is a defence to the meaning, that is, the plaintiff’s meaning or to the words of the matter complained of are clearly congruent with, that is, the same in substance as the plaintiff’s meaning.  Here the expression “the evidence they kept to themselves” which must be taken to mean the evidence the plaintiff kept to himself must, as I submitted yesterday, in substance be the same as the plaintiff’s imputation. 

The last issue that I would like to deal with is whether or not on the merits the strike out should have been rejected.  Can I mention very, very briefly some legal issues on this point.  The first is, on the question of the appropriate test on a strike out we refer your Honours to the decision of this Court in Favell v Queensland Newspapers (2005) 221 ALR 186, relevantly at page 189. I have copies of that decision for your Honours. I will not take up time with it.

The test, as my learned friend says, is a test of objective fairness.  He said on at least two occasions that that imports a notion of reasonableness.  Can I give your Honours a reference in that regard to a couple of cases.  The first is O’Shaughnessy v Mirror Newspapers (1970) 72 SR (NSW) 347 at page 361 where Justices Mason and Jacobs talked about whether an honest man might reasonably draw a conclusion. Likewise, Chief Justice Jordan to similar effect in a case Goldsbrough v John Fairfax (1934) 34 SR (NSW) 524 at page 532, point 4.

Your Honour Justice Kirby raised with my learned friend when he mentioned the words “obstinate” and “prejudiced” that one needs to bear in mind that the overall test is one of objective fairness, so one must allow, if I can put it this way, for a measure of obstinacy, a measure of prejudice but still with an overriding requirement that it be the opinion of a reasonable and honest man.  The words “obstinate” and “prejudice”, I submit, do not subvert the overall test.  Can I make very briefly just three observations about the particular meaning here?  The first is that it talks about concealment which is an active process rather than a passive one.  The second is it talks about deliberate conduct, not inadvertent conduct and the third is that it talks about conduct which on any view would be very gross misconduct, we submit, very obviously criminal conduct.

There are some criminal statutes here in South Australia which make it an offence to conceal anything that may be required in evidence and, of course, there are perjury and contempt offences, and may I add to our note simply by giving your Honours reference to those statutory provisions.  Thank you, your Honour.  Just one brief aside before I look at this argument on the merits.  Your Honours remember the famous statement by Justice Dixon in Briginshaw v Briginshaw talking about a serious allegation and the sort of proof that a man would require before reaching a state of reasonable satisfaction.  Of course, that was a discussion directed to the question of proof of the truth of an allegation but I would submit that, allowing for that distinction, an honest and reasonable man would be looking for reasonably good material before he would come to the conclusion that someone had been guilty of this serious criminal act encapsulated in this imputation.  As I say, I only reply upon that by way of analogy, not in terms.

The appellant’s argument, as we understand it, on this point is that the opinion could be honestly and reasonably held, and they say this in paragraph 70 of their submissions, because of the large number of inconsistencies and inadequacies in the investigation by my client and in the opinions that were proffered.  If your Honours go the Full Court’s decision at paragraph 46 which is to be found on the bottom of page 98 of the appeal book your Honours will see that they say there that:

An analysis of the particulars discloses matters that can be characterised [merely] as a failure to meet professional standards, unprofessional conduct, inconsistencies in expert evidence and inadequacies in professional practice and in expert evidence.

Your Honours will note from the appeal book at page 19 at about line 32, that there was a defence of truth pleaded upon the supposition that a meaning was conveyed of the plaintiff giving unsatisfactory evidence and it is important to note that on the top of page 20 that in that regard the defendant relied upon all of the same particulars in support of the truth of that allegation, that is, of unsatisfactory or inadequate conduct as are relied upon in relation to this defence of comment.

The submission made by my friends raises the issue of what facts would need to exist to lead an honest and reasonable man to form an opinion that a professional witness or an expert witness had deliberately concealed evidence from a court.  My friends say there are simply just a large number of instances of incompetence.  We submit that that is not enough and submit that at a minimum your Honours would need to find in these facts four things.  First all, as my learned friends say, a substantial number of relevant acts or omissions.  Second of all, a reasonable factual basis by way of primary fact for the conclusion that these acts were negligent or incompetent.  Thirdly, facts showing that the plaintiff knew of this negligence or incompetence and, fourthly, specific statements of fact that he had not disclosed those matters to the Court, that is, not disclosed his own negligent acts or omissions.

Can I say briefly on this point, that as to knowledge there seems to be only one paragraph that refers to it, that is, knowledge on the part of the plaintiff and that is paragraph 3.35.4 and even this is watered down and it is

made somewhat fuzzy by two things.  First of all, it is introduced at 3.35 at line 22 on page 15 with the words “failed to adequately disclose”.  It is not said this was not actually disclosed.  Second of all, in that paragraph it talks argumentatively about not excluding something “on any scientific basis”.  We submit that unless there are proper particulars of knowledge of negligence a reasonable man would not form the view that there had been deliberate concealment of acts of negligence. 

The other matter that I would like to raise briefly is this issue of non‑disclosure.  The idea is multiple acts of negligence, knowledge of that and then not disclosing it to the court, they are the base facts, we submit, one would need, at least, to form this opinion.  One would need specific statements in the particulars in saying that in fact these matters were not disclosed.  In the particulars we can only find one clear statement as to non‑disclosure and that is in paragraph 3.26.1 on page 13.  All of the other particulars in this regard are made in a distinctly fuzzy way by using, if your Honours go to the beginning of paragraph 3.35 which governs the whole of that paragraph, the third line “failed to adequately disclose”.

Paragraph 3.35.15 “failed to properly or adequately disclose” and paragraphs 3.38.2 and 3.39.2 do talk about failure to disclose but talk about that again in a fuzzy way by reference back to paragraphs 3.36 and 3.37 which talk about aims of a forensic autopsy and requirements of giving evidence.  So there is, other than paragraphs 3.26.1, no clear statement as to non‑disclosure.  Finally, we submit that the particulars would have to contain primary facts showing a reasonable factual basis for the conclusion of negligence, for example, breaches of standard or practice or expert opinions of that kind.  Those are our submissions in relation to that final point.  So we say that even if your Honours simply consider the application afresh on the merits, these particulars should have been struck out.  If the Court pleases, those are my submissions.

GLEESON CJ:   Thank you, Mr Reynolds.  Yes, Mr Whitington.

MR WHITINGTON:   May it please the Court.  Can I deal first with my learned friend’s reference to Pervan’s Case at page 327.  We submit that that reference cannot be viewed in isolation without reference to the entirety of the reasons and, in particular, at page 330.  Further, in the context of Pervan’s Case, my learned friend submitted that the appellant’s, in order to succeed on the appeal, had to say that the reasons of the majority at page 327 were wrong.  We say it is not so.  What we say, respectfully, is that properly understood the reasons are an endorsement of Kemsley v Foot and the distinction between a subject matter and the detailed facts within it.  So it is not a matter of us having to say that page 327 is wrong, rather, we say that page 327 properly understood supports our case. 

Can I say this; the majority in that passage on two occasions used the expression “enabled”.  They say that the reader must be “enabled” and “to enable persons”.  We say that that expression is entirely consistent with Lord Porter’s reference to affording the reader the opportunity to ascertain facts for themselves, which expression he uses at page 356.

KIRBY J:   But they are not going to be afforded that opportunity from within the four walls of the promotion.

MR WHITINGTON:   But our submission is that they do not have to be.  The promotion has to indicate to them the subject of the criticism but it does not have to indicate the very matters that the commentator has in mind that found his criticism, but they then have the opportunity of ascertaining for themselves facts which will allow them to consider the criticism if they want to.

KIRBY J:   That does not seem to fit very well on the rationale that the purpose of the defence is to permit the citizen there and then to weigh up all the matters and say, “Well, that is just your opinion and you are entitled to your opinion.  I reached my own view and that is different”.

MR WHITINGTON:   Exactly, your Honour.  That is, in a sense, the issue at the heart of this case; whether that is the function of the defence of fair comment and the right of freedom of expression, whether its function is to foster debate so that if I express an opinion, I have to indicate the basis and somebody can say, “Well, that is simply wrong” or whether I simply express an opinion and somebody can say, “That is your opinion.  I can see that.  It is simply your opinion”.  In a sense, that is where the battlelines are drawn on this issue in this case.

GLEESON CJ:   You said a moment ago that a viewer of this promo would have the opportunity to see the facts that the commentator had in mind.

MR WHITINGTON:   Yes.

GLEESON CJ:   Which would be that opportunity?

MR WHITINGTON:   They would have to go and investigate the cases, your Honour, the trials, the matter in the Medical Tribunal.  My learned friend has not ‑ ‑ ‑

GLEESON CJ:   Would they have to see the program for which this was a promo?

MR WHITINGTON:   Not necessarily, your Honour.  We do not put the submission that if the opportunity lies in the future that is sufficient, but, nonetheless, the program would have elucidated matters already on the public record and in the public arena, being the investigations to trials, a Medical Tribunal hearing.

GLEESON CJ:   What about the new facts?  Depends what you mean by “new”.

MR WHITINGTON:   Exactly, your Honour, and that is a matter for trial.

GLEESON CJ:   You seem to disclaim an argument – and I am not suggesting there is anything wrong with this – that a promo ought to be treated like a headline with a subjoined article.

MR WHITINGTON:   We have not put that argument.  There is authority in South Australia in the Full Court in which it was held that a promotion was defamatory and not defensible as fair comment, but that a subsequent program based upon the matters indicating a promotion was defensible.

GLEESON CJ:   What was going through my mind was that you probably were not putting that argument because there would be so many viewers who would see the promo but never see the program.

MR WHITINGTON:   That is right, your Honour.

GLEESON CJ:   Whereas, if you have got in front of you a front page of a newspaper with a headline and then an article under that headline, anybody who reads the headline can read on.

MR WHITINGTON:   Yes.

KIRBY J:   But there is the intermediate position that Justice Evatt dealt with of the screaming banner on the street.

MR WHITINGTON:   But that is a slightly separate question, with respect, your Honour.

KIRBY J:   That is closer to the promo.

MR WHITINGTON:   Yes, except the question there is whether that screaming banner is comment or fact and that is a slightly separate question.  We have stepped through that and assume that that banner is treated as comment.  The next question is, is it fair comment on matters sufficiently stated or indicated?  We say if, like the advertisement in Pervan, that invokes in the mind of the reader some other event, that is enough, as in Kemsley v Foot, the newspapers, where there the defendant proposed then to support the comment or the substratum of fact by reference to articles in the paper that the recipient may never have themselves read.

GLEESON CJ:   In all events, we do not have to concern ourselves with an argument that a promo ought to be treated as a headline with a subjoined article and we do not have to consider an argument that the promo has to be considered together with the program it is promoting.

MR WHITINGTON:   We have not put that, your Honour, because of the timing difference that your Honours referred to and the potential different audiences.

KIRBY J:   So far as Pervan is concerned, you would latch onto the words “are sufficiently indicated”?

MR WHITINGTON:   Yes.

KIRBY J:   And you say that six members of the court have said it is enough that the words are “notorious” or “are sufficiently indicated” and that does not mean sufficiently indicated in the sense of sufficiently elaborated and set out.  It just, you say, means indicated where you can get them.

MR WHITINGTON:   Yes, and for this reason, that the underlying rationale of the defence, although not always stated in these terms because the defence of fair comment frequently presents in a particular and narrow context, the underlying rationale of the requirement that there be some indication of a substratum is so that I can, as the recipient, say that is all very well, that is only your opinion.  I do not have to have the opportunity to go the further step at that time and say, now let me consider your opinion as in a debating society, I think you are right or I think you are wrong, because otherwise the right of free expression would be considerably shackled, if not emasculated, if I had to lay out my opinions for everybody to endorse or not endorse. 

Now, can I move to the next proposition my learned friend made.  He appeared to suggest that the appellant suggested or submitted that the defence of fair comment imports a totally subjective test.  I am sorry.  My learned friend says he does not.  We put the submission that the commentator should have the facts in mind to found the comment and, as I understood my learned friend, he suggested that was a slightly novel or unorthodox proposition, but we say not so.  The standard case of fair comment is that the facts will be stated or indicated with the comment and, if stated, they must be truly stated.  That is a clear case where the law assumes that the commentator will have the facts in mind.  The only difficult case is where the commentator simply indicates a substratum without reciting the particular facts and then the question is, to what extent should the commentator have in mind the specific facts that they rely on later? 

That is a matter dealt with by Justice Eady in Lowe v Associated Newspapers where he says that the commentator must be able to demonstrate at some later point that they at least had the particular facts in mind in a general way.  So I interpolate there an answer to a submission my learned friend put this morning in the context of the time at which the facts might arise.  We accept that the commentator cannot rely on facts which come into either existence or to the commentator’s knowledge after the relevant event.  My learned friend took the court to three places in the defence where it was clear on the face of the defence that matters were relied on after the date of the comment.  We accept that was a pleading in solecism.  It should not have been there and, in fact, those three passages, as I understand my learned friend’s suggestion, have been struck out.  So there is no suggestion in our case that we can rely on matters of either fact or knowledge postdating the comment.

My learned friend also this morning put a related submission about the knowledge of the compere.  If the Court pleases, it is not a matter for the compere having to have the relevant knowledge.  This is analogous to a letter case dealt with by the majority in Pervan at page 529 and there they said that, in effect, the newspaper, in the case of a letter written to the paper and published by the paper, adopts the letter writer’s defence of fair comment and we would say the same here.  To the extent that the commentator must have knowledge, it is the producer who must have the knowledge and the compere has the benefit of the Telnikoff kind of vicarious defence. 

Your Honour Justice Hayne drew my learned friend’s attention to Lord Porter’s question in Kemsley v Foot at page 354, point 9 on the page and my learned friend in response drew attention to the reference to “arguable” at page 357, point 6 and he took your Honour back to that this morning.  With respect, we say your Honour Justice Hayne’s question was a very material one and that the reference to “arguable” on page 357 is beside the point because that was a reference to the question whether there was a subject matter sufficiently indicated in terms of Lord Kemsley’s control of his newspapers.  As to that, Lord Porter said it was arguable.  Now, that is the same point being addressed by Justice McHugh in Pervan’s Case at page 349 when he said it was not arguable that in the case of that advertisement it was referring to the Parliamentary speech.

HAYNE J:   It may be important to bear in mind the course of argument in Kemsley v Foot, see in particular the argument of Mr Gerald Gardiner, as he then was, at page 350 to 351 where he accepted:

that a defendant must have identified the subject‑matter commented on but he need not have identified the facts.

Argument proceeded on that distinction.  There may be some question about its content.

MR WHITINGTON:   Yes, your Honour is quite right.  But in further answer to your Honour’s query of my learned friend, can I point out this further matter.  In the very next sentence after Lord Porter refers to something being arguable, he answers the question by suggesting that a proposition is not maintainable.  In other words, what he is putting is that the question that your Honour drew attention to at page 354 does not admit of an affirmative answer, which is more than a matter of mere arguability.

My learned friend this morning made a considerable amount of the issue whether the defendant’s defence must respond to the plaintiff’s meaning.  With great respect to my learned friend, the foundation of his submission appeared to overlook the fact that it is our premise that our pleading says that the statement is fair comment in any event, that is, in any meaning which might be attributed to it.  So on that, for the purpose of the pleading, we say even in the meaning attributed by the plaintiff, the words are fair comment.  So in this case there is no suggestion that the defendant has not engaged the plaintiff meaning. 

My learned friend also referred to the New South Wales authorities and he put the point, as I understood him, that those cases stand for the proposition that the imputation must be comment, but the real point made by those cases is that the imputation must be conveyed as comment.  That is a very material and important distinction.  Those cases ultimately come to the position not that the imputation must be comment but that the imputation must be conveyed as comment, which then permits one to look behind the words of the imputation to the matter itself and that is, of course, why Justice Samuels in Petritsis’ Case used the expression “the vehicle by which the meaning is expressed”.

My learned friend in dealing with the test of objective fairness suggested that I imposed an element or condition of reasonableness within that test.  If I did, then I strayed perhaps in the course of too discursive a submission.  I did not intend to suggest that was an element of the test and we put the test as we have in our written submissions at paragraph 23.4.  Can I also give the Court a reference to a High Court authority.  My learned friend referred to O’Shaughnessy (1970) 125 CLR 166 in New South Wales in the Court of Appeal. O’Shaughnessy went to the High Court.  At page 175 their Honours said that reasonableness was not a requirement of the test.  So if it is to be imported now then that would require the court to consider a change in the law.

My learned friend then addressed the pleadings themselves.  It is our overarching submission that his complaints are, essentially, either a complaint with a lack of particularity in the pleading or a complaint that in fact evidence should be pleaded.  In either respect we say that that is not really a matter that this Court should be required to deal with.  If there is any suggestion that the pleadings are inadequate in point of form, that is a matter which should be sent back for a procedural determination rather than dealt with by this Court.  I do not want to now pick through each and every one of the pleadings. 

My learned friend says that in a number of respects they ought to plead that the plaintiff knew of certain matters and that certain matters were not disclosed and he said that in each case one might only divine those elements in one particular pleaded particular.  Without picking through them all now, if one reads them, they are capable in certain places of the construction when read with other particulars that the plaintiff knew or must have known of certain matters and that certain matters did not come forward at the appropriate time.

HAYNE J:   The difficulty is the pleadings relied on the epithets to do the work.  You have wrongfully, knowingly, all of the epithets to do all of the work in that pleading and that is just not desirable forms of pleading.

MR WHITINGTON:   We accept that, your Honour.  I accept that the pleading is open to criticism by use of epithets which generally in this area are not helpful.  I have not addressed the cross‑appeal because, as I understand it, it has either not been pursued or it has only been pursued to the extent that matters are properly raised by the notice of alternative contentions.  I note my learned friend made no written submissions pressing, I think, it is paragraphs (p) to (r) in the notice of cross‑appeal, nor did he appear to address any oral submissions to those paragraphs.  They are, of course, the only matters that go beyond the grounds raised in the notice of alternative contentions.

Finally, can I address the matter of textbooks and literature.  We will undertake to do as the Court has suggested.  Can I also indicate to the Court, particularly Justice Hayne, we will also endeavour to get out Sack on Defamation, which the American standard text, but as your Honour knows it is ‑ ‑ ‑

HAYNE J:   Not now.  Go back to the 1960s.  Go back before New York Times.

MR WHITINGTON:   Yes, I accept that, and that is why Sack is no longer terribly helpful.  We will also see if we can get out the latest edition of Brown, the Canadian text, and see if that assists.  We have copied, as Justice Kirby requested yesterday, a passage from George, Defamation Law in Australia and also the article of Andrew Kenyon, but if we are going to be providing material, it might be more convenient if we provided it all at once, if the Court pleases.  May it please the Court.

MR WHITINGTON:   Thank you, Mr Whitington.

MR REYNOLDS:   May I be permitted a one‑minute reply on the notice of contention.  First of all, as to the cross‑appeal, the reason it is there in substance is to give your Honours the option of striking out the whole defence on the basis of what we have put by way of notice of contention, just to clarify that.  Just one other point.  My learned friend talked in his reply as if the only topic in this publication is the court case and sort of suggested that one could ascertain or the viewer could ascertain facts in relation to that.  Can I say two things about that. 

The first is that this pleading talks most of all not about what did happen at the court case, but what did not happen.  In order to form a judgment about that or to ascertain the facts one would need to be not just in the court room but to look at what happened aliunde.  Secondly, a lot of the facts, or indeed perhaps most of them, relate to the investigation into Ms Cheney’s death and, I submit, it is unreal to suggest that the facts relating to that issue and indeed to the preparation of his evidence for the trials would be in any way ascertainable by a viewer.  If your Honours please.

GLEESON CJ:   Thank you.  We will reserve our decision in this matter and we will adjourn for a short time to reconstitute.

AT 10:54 AM THE MATTER WAS ADJOURNED