Clarke v Advertiser Newspapers Ltd No. DCCIV-98-847 Judgment No. D103

CLARKE V ADVERTISER NEWSPAPERS LIMITED
[1999] SADC 103

Judge Muecke
Civil

This is an appeal against an order of Master Berry on 23 June 1999 whereby he declined to strike out paragraphs 6, 9 and 13 of the Further Amended Defence. By this appeal the plaintiff seeks an order that those paragraphs be struck out, with consequential costs orders.
On Saturday 16 May 1998, Monday 18 May 1998, and Tuesday 19 May 1998 the defendant published three articles of and concerning the plaintiff. The plaintiff has referred to these articles as “the Saturday article”, “the Monday article”, and “the Tuesday article”. For reasons which will be apparent, I shall refer to them either in the same way, or by referring to the Saturday article and the Tuesday article as the ‘political liability articles’ and to the Monday article as the ‘nightmare article’. The pleadings, and arguments on the appeal, treat the political liability articles in an identical way. I do not set out the articles in full in these reasons but they can be found respectively in paragraphs 3, 5, and 7 of the Amended Statement of Claim.
On 17 June 1998 the plaintiff instituted proceedings against the defendant claiming he was defamed by each of the three articles. In respect of the Saturday article and the Tuesday article the plaintiff alleged that they each meant and were understood to mean by a natural and ordinary reading that:
a)..... The plaintiff is a political liability;
b)The plaintiff is finished as a politician.
In respect of the Monday article the plaintiff alleged that it ‘meant and was understood to mean on a natural and ordinary meaning (sic) that (the plaintiff) is subjecting (Ms) Pringle to a nightmare so that it is necessary for her to go into hiding to avoid his pressure (to withdraw charges) and violence”.
In its initial Defence filed on 20 July 1998 the defendant denied that the words in the political liability articles bore or were understood to bear or were capable of bearing the meanings alleged by the plaintiff. The defendant further pleaded that if the meanings alleged by the plaintiff in the political liability articles did arise, such meanings were true in substance and in fact. The defendant’s particulars of its pleas of justification included particulars which not only alleged that the plaintiff had assaulted Ms Pringle on two occasions on 13 May 1998 (3 days prior to the Saturday article), but that he had assaulted Ms Pringle on two earlier occasions. One was on 12 November 1997 at Prospect and one was at Broken Hill in or about early 1997.
As to the plaintiff’s allegation regarding the nightmare article the defendant, in its initial Defence, denied that the words in that article bore or were understood to bear the meanings alleged by the plaintiff. It further pleaded that, insofar as the words were understood to mean that the plaintiff subjected Edith Pringle to a nightmare, such meaning was true in substance and in fact. In its particulars of this plea the defendant repeated its allegations of the plaintiff’s alleged assaults on Ms Pringle on two occasions on 13 May 1998 and on two occasions in 1997.
On 27 July 1998 the plaintiff filed an Amended Statement of Claim without leave pursuant to District Court Rule 53.01(a). The plaintiff did not amend his Statement of Claim insofar as it related to the nightmare article, but did amend it insofar as it related to the political liability articles. The effect of the amendment in respect of those two articles was to plead that each article meant and was understood to mean by a natural and ordinary reading that:
(a).... The plaintiff is a political liability by reason of his having been charged with two counts of assaulting a family member;
(b)The plaintiff is finished as a politician by reason of his having been charged with two counts of assaulting a family member.
It will be seen that the plaintiff, by his Amended Statement of Claim, purported to ‘limit’ or to particularise the imputations that the plaintiff is a political liability and is finished as a politician, to imputations that he is so by a reason of his having been charged with two counts of assaulting a family member. I was told during the hearing of the appeal that the plaintiff’s original imputations were ‘incautiously’ pleaded. It was submitted that the plaintiff does not now wish to allege at trial what was said to be a ‘larger meaning’ (that is, that the plaintiff is a political liability and is finished as a politician), but seeks to confine his case to plead a 'lesser defamatory meaning within the larger meaning’, that lesser defamatory meaning being said to be that the plaintiff is a political liability and is finished as a politician by reason of his having been charged with two counts of assaulting a family member.
Likewise in respect of the nightmare article. The plaintiff submits that he only intends to allege at trial the ‘lesser’ imputation that the plaintiff ‘is subjecting (Ms) Pringle to a nightmare so that it is necessary for her to go into hiding to avoid his pressure (to withdraw charges) and violence’. He does not allege the ‘wider’ defamatory meaning that the Monday article meant and was understood to mean on a natural and ordinary reading that the plaintiff ‘subjected Edith Pringle to a nightmare’ (which imputation the defendant has pleaded and proposes to justify at trial).
The defendant filed an Amended Defence on 28 August 1998. By paragraph 4 of that Defence the defendant will seek to justify at trial the ‘lesser’ defamatory imputations now pleaded by the plaintiff in respect of the political liability articles. Its particulars include the two alleged assaults on Ms Pringle on 13 May 1998, and the alleged assault on Ms Pringle on 12 November 1997. The defendant does not now seek to rely for this plea of justification on an alleged assault in 1997 at Broken Hill which was pleaded in paragraph 4 of its original Defence. The plaintiff makes no attack upon paragraph 4 of the defendant’s Amended Defence. However, in its current Defence, the defendant seeks not only to justify the imputations now pleaded by the plaintiff in respect of the political liability articles, but also seeks to justify the imputations pleaded by the plaintiff in his original Statement of Claim. That is, the defendant seeks to justify at trial that the words meant and were understood to mean that the plaintiff is a political liability and is finished as a politician. In respect of that plea, the defendant seeks to rely on all the particulars it sets out in paragraphs 4.1 to 4.7 of the Amended Statement of Claim. It also seeks to rely on the alleged assault at Broken Hill in 1997; allegations that the plaintiff engaged in public attacks on The Advertiser in February 1985 and on The Sunday Mail in October 1996 in Parliament without Caucus sanction, in a manner politically damaging to the Australian Labour Party; and that the plaintiff has repeatedly been suspended or named in Parliament due to his conduct.
In its Amended Defence the defendant made no change to its original Defence relating to the nightmare article (except for deleting any reference to paragraph 4.3 of its current Defence). By its Amended Defence the defendant does not apparently seek to justify the plaintiff’s pleaded ‘lesser’ defamatory imputation of the nightmare article, but seeks only to justify a ‘wider’ defamatory imputation of that article. That is, one not confined to the plaintiff subjecting Ms Pringle to a nightmare such that it is necessary for her to go into hiding to avoid his pressure (to withdraw charges) and violence, but one alleging that the plaintiff subjected Ms Pringle to a nightmare.
In summary, in respect of the political liability articles, the plaintiff seeks to go to trial on the basis that he alleges that the natural and ordinary meaning of those articles is that he is a political liability by reason of his having been charged with two counts of assaulting a family member, and that he is finished as a politician by reason of his having been charged with two counts of assaulting a family member. The plaintiff will say that in one or both of those two meanings the political liability articles were defamatory of him.
The defendant seeks to go to trial on the basis that the political liability articles did not bear, nor were they understood to bear, nor were they capable of bearing the meanings pleaded by the plaintiff. If they are however, those meanings are true in substance and fact and the defendant relies on two alleged assaults on 13 May 1998 and an alleged assault on 12 November 1997. The plaintiff does not say the defendant cannot go to trial on that basis. However, the defendant further wishes to prove at trial that if the political liability articles were defamatory of the plaintiff, the words meant and were understood have the ‘wider’ defamatory meaning that the plaintiff is a political liability and is finished as a politician, and in such meaning the words were true in substance and in fact. To support this plea the defendant alleges all of the particulars in paragraphs 4.1 to 4.7 of its Defence and adds the alleged assault at Broken Hill in 1997; alleged public attacks by the plaintiff on The Advertiser and The Sunday Mail in 1995 and 1996 respectively; and the plaintiff’s alleged repeated suspension from or naming in Parliament due to his conduct.
By this appeal the plaintiff seeks an order that the defendant not be permitted to allege and seek to justify the ‘wider’ imputations and the particulars pleaded to support them.
In summary, in respect of the nightmare article, the plaintiff seeks to go to trial on the basis that he alleges that the natural and ordinary meaning of the article is that the plaintiff is subjecting Ms Pringle to a nightmare so that it is necessary for her to go into hiding to avoid his pressure (to withdraw charges) and violence. The plaintiff will say that in that meaning the nightmare article was defamatory of him. The defendant denies that the article bore such a meaning. The defendant does not (on its current Defence) seek to justify the ‘lesser’ imputation pleaded by the plaintiff, but does seek to justify a ‘wider’ imputation that the plaintiff subjected Ms Pringle to a nightmare (if the article was understood to have such a meaning). To support this plea the defendant gives particulars of the alleged assault at Broken Hill in 1997; the alleged assault on 12 November 1997; and the two alleged assaults on 13 May 1998.
By this appeal the plaintiff seeks an order that the defendant not be permitted to allege and seek to justify the ‘wider’ imputation and the particulars pleaded to support it. All the particulars except the one referring to the alleged assault at Broken Hill in 1997 has been alleged in another paragraph of the Amended Defence, which paragraph is not under challenge by the plaintiff in this appeal.
If the plaintiff is successful in this appeal, the only factual matters that the defendant would be prevented from adducing at trial is an alleged assault on Ms Pringle by the plaintiff at Broken Hill in or about early 1997; the plaintiff’s alleged attacks on The Advertiser and The Sunday Mail in 1995 and 1996 respectively; and the plaintiff’s repeated suspension from and naming in Parliament due to his conduct.
I was greatly assisted in this appeal by two experienced counsel practicing in the law of defamation. Both counsel referred me to authorities relating to applications to strike out pleadings (in particular in the law of defamation), and to authorities relating to the law of defamation and its practice in South Australia.
The political liability articles
The plaintiff submitted that the defendant should not be allowed to allege and seek to justify by its pleaded particulars a meaning of these articles that the plaintiff is a political liability and is finished as a politician. The plaintiff submitted that such a meaning is a wider and different meaning than that contended for by the plaintiff and does not have a common sting with the meaning relied upon by the plaintiff.
Further (or alternatively), the plaintiff submitted that the ‘wider’ meaning pleaded by the defendant is not a natural and ordinary meaning of the two articles; it is a strained, forced, and utterly unreasonable meaning (or one or more of those); and it has a clear tendency to embarrass and prejudice the plaintiff in the prosecution of his claim. It should therefore be struck out on those grounds.
The plaintiff conceded in his submission that it is open to the defendant to plead that the meaning of a publication includes a different defamatory meaning which is not separate and distinct from the meaning relied upon by the plaintiff where it has a common sting with that meaning. It was submitted that the defendant is entitled to justify that common sting (Polly-Peck (Holdings) v Trelford [1986] QB 1000 at 1020-1, 1032. See also Gatley 9th Ed, para 11.12; Gillooly, pp 108-111). The plaintiff submitted that it was not open to the defendant to plead that the natural and ordinary meaning is some larger defamatory meaning to that pleaded by the plaintiff falling outside of a common sting and to seek to justify that. The plaintiff cited the Polly-Peck case; Chakravarti v Advertiser Newspapers Ltd (1998) 154 ALR 294; (1998) 193 CLR 519 at paras. 6 to 13 incl.; Templeton v Jones [1984] 1 NZLR 448.
The plaintiff submitted that it is not part of any common sting that the plaintiff is a political liability, or finished as a politician, by reason of his Parliamentary behaviour or criticism of the defendant and The Sunday Mail. It was submitted that it is also not part of any common sting that the plaintiff is a political liability, or finished as a politician, by reason of any alleged assaults other than those in respect of which he had been arrested and charged ‘on Wednesday night’ (i.e. 13 May 1998). The assaults in respect of which he was arrested and charged ‘on Wednesday night’ are said in each of the political liability articles to be two counts thereof, and neither article identifies the date(s) the alleged assaults took place. I note that in an unchallenged paragraph of the Further Amended Defence the defendant pleads an alleged assault on 12 November 1997, and also pleads that the plaintiff was charged with three counts of assaulting Edith Pringle which three counts related to the alleged assault on 12 November 1997 and two alleged assaults on 13 May 1998.
I have come to the conclusion that there is a ‘common sting’ in the political liability articles and that sting is neither as limited or as narrow as that pleaded by the plaintiff, nor as general or as wide as that pleaded by the defendant.
Facts may be alleged and proved which are relevant to justify the sting of a libel according to any meaning which may properly be attached to it. This is subject to the so-called Polly-Peck principle that the meanings which may properly be attached to a libel must carry a common sting. It is somewhat artificial for the plaintiff to now allege a meaning that he is a political liability and is finished as a politician, confine that to the reason of his having been charged with two counts of assaulting a family member, and then to seek to confine the defendant’s case to that precise imputation. The plaintiff does not seek to confine the defendant to two counts of assaulting a family member anyway, because he does not complain about the defendant alleging and seeking to prove three counts of assault on Ms Pringle, one of which occurred many months before the articles complained of.
In Chakravarti’s case it was held that, subject to any prejudicial disadvantage to the defendant, a plaintiff is not bound to defamatory meanings as pleaded. The sting (if defamatory sting there be) in the political liability articles is that the plaintiff is a political liability and is finished as a politician because he is the subject of accusations of domestic violence. If the trial Judge was to hold, for example, that the articles were defamatory of the plaintiff by reason of his having been accused by a family member of domestic violence, or because he is a member of a party with the highest level of female representation in the country which would not allow anyone accused of domestic violence to remain a member, no doubt the plaintiff would be seeking a judgment against the defendant. Whether he would be granted judgment in view of his apparent disavowance of any imputation other than a very limited and precise one now pleaded would be a matter for the trial Judge.
The question before me in this appeal on the political liability articles is whether the words used in the articles could reasonably be regarded as meaning that the plaintiff was a political liability or finished as a politician by reason of matters completely unrelated to accusations of domestic violence. The plaintiff submitted that at trial he should not have to face allegations that he is a political liability and is finished as a politician by reason of attacks he made on The Advertiser and on The Sunday Mail in Parliament in 1995 and 1996 without a sanction from Caucus which, as I infer, had nothing to do with accusations that he committed domestic violence. The probative value of these allegations, even to support the general and wide meaning pleaded by the defendant, is not immediately apparent. The plaintiff also submits that he should not have to face a trial based upon allegations that he is a political liability and is finished as a politician because he has repeatedly been suspended from or named in Parliament due to his conduct. The relevance of those allegations, even to support the general and wide meaning pleaded by the defendant, is also not immediately apparent.
I agree with the plaintiff’s submission. In coming to that conclusion, I have found some support in Bookbinder v Tebbit [1989] 1 All ER 1169. In that case both the plaintiff and the defendant contended for imputations of wrongdoing. In circumstances which were similar but not identical to this case, the plaintiff in Bookbinder amended his defamatory imputation by limiting the alleged wrongdoing to a particular wrongdoing constituted by a quite limited circumstance. The Court of Appeal held that the defendant could not plead and seek to justify the same wrongdoing constituted by far more extensive facts. In Bookbinder the imputation contended for by both the plaintiff and the defendant involved an allegation of the same wrongdoing (which is not the case here) but I have found the comparison between the circumstances in Bookbinder and the circumstances here helpful.
In my view, had the defendant here limited its particulars to those set out in paragraph 6.3 and 6.4 of its Further Amended Defence and not included the particulars set out in paragraphs 6.5 and 6.6, then I would have found that the defendant was, in the circumstances of this case, entitled under the Polly-Peck principle to plead as it has in paragraphs 6 and 13 of its Further Amended Defence, because then I would have considered that the imputation there pleaded, supported by the particulars in paragraphs 6.3 and 6.4, contained a common sting to the imputation pleaded by the plaintiff.
The plaintiff also submitted that paragraphs 6 and 13 of the Amended Defence should be struck out because the meanings pleaded by the defendant are strained, forced and utterly unreasonable, or one or more of those. It was submitted that they were not the natural and ordinary meanings. I infer that this submission was put on the basis of those meanings being supported by the particulars pleaded. I assume the same submission would be made by the plaintiff even if paragraphs 6.5 and 6.6 were not pleaded, because the plaintiff challenges paragraph 6.4, the alleged assault at Broken Hill in 1997.
I am not satisfied that it is appropriate on a strike‑out application to uphold that submission. The defendant’s plea was the plaintiff’s, albeit incautious, plea in the original Statement of Claim. I am not satisfied that the defendant’s plea, if it was limited by particulars to accusations of or the commission of domestic violence by the plaintiff, is the product of some strained or forced, or utterly unreasonable interpretation (see Jones v Skelton [1963] 3 All ER 952 per Lord Morris of Borth-y-Gest at p. 958) or is the result of ‘a strained and unnatural interpretation upon the words’ (see Prichard v Krantz (1984) 117 LSJS 488 per King CJ at p 495).

I would allow the appeal so far as it relates to paragraphs 6 and 13 of the Further Amended Defence for the limited purpose of striking out paragraphs 6.5 and 6.6 on the basis referred to in these reasons.
The nightmare article
The plaintiff alleges that the Monday article meant and was understood to mean on a natural and ordinary reading that the plaintiff ‘is subjecting (Ms) Pringle to a nightmare so that it is necessary for her to go into hiding to avoid his pressure (to withdraw charges) and violence’.
The defendant has denied that meaning; has not sought to justify that precise meaning; but has sought to justify what the plaintiff submitted was a ‘wider’ meaning, that is that the plaintiff ‘subjected Edith Pringle to a nightmare’. The defendant has particularised its justification plea by referring to an alleged assault at Broken Hill in 1997, an alleged assault at Prospect on 12 November 1997, and two alleged assaults at Prospect on 13 May 1998. All but the alleged Broken Hill assault will be the subject of evidence at trial without objection from the plaintiff. The alleged Broken Hill assault is a particular of paragraph 6 of the Further Amended Defence which I have not ordered be struck out.
The imputation pleaded by the plaintiff as to the nightmare article is in a slightly different form to the imputations pleaded in the political liability articles. In the political liability articles the plaintiff confines his imputation to his being a political liability and finished as a politician as a result of a precise and particular cause. In the nightmare article he confines his imputation to his subjecting Ms Pringle to a nightmare with a precise and particular consequence. As with the political liability articles it is my view that it is artificial to try and limit the defendant’s plea of justification to the precise imputation pleaded by the plaintiff, particularly where that imputation refers to consequences. It is even more artificial to seek to draw a distinction between the tense used by the plaintiff in paragraph 6 of his Statement of Claim - that is the present tense: ‘is subjecting (Ms) Pringle to a nightmare’, and the tense used by the defendant in paragraph 9 of the Defence - that is the past tense: ‘the Plaintiff subjected Edith Pringle to a nightmare’. I wonder what the position would be if a trial judge found the imputation was that the plaintiff was subjecting Ms Pringle to a nightmare so that it was necessary for her to go into hiding to avoid his pressure to withdraw charges but was not satisfied that the imputation also was that he was subjecting Ms Pringle to a nightmare so that it was necessary for her to go into hiding to avoid violence. I doubt if the plaintiff would concede that his action should fail. In my view the real sting in the nightmare article (if defamatory sting there be) is that the plaintiff was subjecting or had subjected Ms Pringle to a nightmare concerning allegations of domestic violence. I consider therefore that the defendant’s pleading, as particularised in paragraph 9 of the Further Amended Defence, falls within a permissible Polly-Peck pleading.
The plaintiff further submits that the meaning contended for by the defendant is strained or forced or utterly unreasonable and it should be struck out on that basis.
This involves a consideration of whether the nightmare article is capable of meaning that the plaintiff subjected Edith Pringle to a nightmare.
I have considered the nightmare article and the authorities referred to me by counsel for the plaintiff.
I have concluded, reading the article as a whole, that the words of the nightmare article are not capable of bearing the defamatory meaning pleaded by the defendant in paragraph 9 of the Further Amended Defence, that is, that the plaintiff subjected Edith Pringle to a nightmare. The article referred to Ms Pringle’s love for Mr Clarke; her attempt to withdraw charges against him; that media pressure was making things unbearable; the fact that the matter was referred to the DPP despite Ms Pringle applying to have the charges dropped; the fact that Ms Pringle was looking for a place to live because Mr Clarke was not allowed to see her as a condition of his bail; and the fact that Ms Pringle was upset that ‘politics’ had become a factor in what was a private matter.
Because of those matters, it is my view that the words in the nightmare article are not capable of carrying the imputation that Mr Clarke subjected Ms Pringle to a nightmare as pleaded by the defendant.
There is no application before the Court as to the plaintiff’s pleaded meaning of the nightmare article in paragraph 6 of the Amended Statement of Claim. Accordingly, I say nothing about whether the nightmare article is capable of bearing the defamatory meaning pleaded by the plaintiff in that paragraph. That question will be a matter for determination at some later time.
I would allow the appeal for the purpose of ordering that paragraph 9 of the Further Amended Defence be struck out. I would allow the defendant to amend its Defence further by pleading directly to the plaintiff’s imputation in paragraph 6 of the Amended Statement of Claim if it be so advised.
My orders are:
Appeal allowed.
Paragraphs 6.5, 6.6, and 9 of the Further Amended Defence struck out.
Consideration of any consequential matters, including costs and a certificate for counsel, reserved.

[1999] SADC 103

11 August 1999