Clarke v Channel 9 South Australia Pty Ltd (No 2)

[2006] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

CLARKE v CHANNEL 9 SOUTH AUSTRALIA PTY LTD & ORS (NO 2)

[2006] SADC 139

Judgment of His Honour Judge Lovell

21 December 2006

DEFAMATION

Defence of fair comment - whether particulars sought to justify "public interest" are confined by the meanings pleaded by the Plaintiff.

Clarke v Channel 9 South Australia Pty Ltd & Ors [2006] SADC 87; Manock v Channel Seven Adelaide Pty Ltd [2006] SASC 322, discussed.

CLARKE v CHANNEL 9 SOUTH AUSTRALIA PTY LTD & ORS (NO 2)
[2006] SADC 139

Background

1. The Defendants by Proposed Third Further Amended Defence plead particulars of Public Interest as part of the defence of Fair Comment. The Plaintiff challenges particulars 5.20 to 5.41. These particulars are identical to the particulars 4.3.1 to 4.3.22 that I dealt with in relation to the question of justification in Clarke v Channel 9 South Australia Pty Ltd & Ors.[1] In that judgment I also dealt with the question as to whether those particulars could be pleaded as part of the defence of fair comment when the particulars were not contained within the publication nor were notorious.

   [1] [2006] SADC 87

2. The matter that now falls to be decided was not argued before the Learned Master. I agreed, upon the application of both parties, to hear the matter without referring it to the Masters list.

   Defence of Fair Comment

3. To make out a defence of fair comment, the following must be established: that the matter or words in question were comment rather than a statement of fact; that the comment related to a matter of public interest; that the comment sufficiently indicated the facts on which it was made; that those facts are true or protected by privilege; and that the comment is fair in the sense that any fair minded person could express the opinion in question honestly.[2]

   [2] Manock v Channel Seven Adelaide Pty Ltd [2006] SASC 322

4. The defence of fair comment is only available with respect to comments on matters of public interest, the rationale being that free discussion of such matters promotes the “common weal”.[3]

   [3] Gillooly, The Law of Defemation in Australia and New Zealand.

   Arguments

5. Mr Swan, who appeared on behalf of the Defendants, argued that it was for the Defendants to establish that the matter was one of public interest and the topics of public interest should not be unduly confined. He argued that he was not confined by the imputations or nuances pleaded by the Plaintiff when particularising the matters relied upon by the Defendants relating to the question of public interest. Thus he argued, to establish the public interest the Defendants could plead and then rely on matters that it could not rely on, for example, in its defence of justification.

6. Mr Swan argued that the public interest topic in this case is the conduct of an elected Member of Parliament, his relationship with his defacto and the administration of justice. The particulars sought to be added deal with the question of the Plaintiff’s relationship with his defacto.

7. Mr Harms, who appeared for the Plaintiff, argued that the public interest has to be identifiable within the meaning of the comment as pleaded by the Plaintiff. The Defendants, he argued, have to address the imputations as pleaded by the Plaintiff not what the Defendants want to address. The plea of fair comment has to be confined to the plaintiff’s pleaded imputations not by the publication itself. The public interest has to be identifiable within the meaning of the comment. Mr Harms argued that you cannot go outside the comments to justify the public interest.

8. In Manock v Channel Seven Adelaide Pty Ltd[4] the Full Court found that a plea of fair comment must address the imputation pleaded by the plaintiff. This allows a defendant to address any substantially similar or lesser meaning on which a plaintiff may be permitted to rely at trial.[5]

   [4] supra

   [5] supra at para 40

9. Whilst the Court was not specifically dealing with the question of the facts underpinning the question of public interest it was dealing with the defence of fair comment as a whole; that of course includes the question of public interest. In my opinion Manock’s case supports the arguments of Mr Harms. In my opinion the comment has to be confined to the plaintiff’s pleaded imputations or any substantially similar or lesser meaning that he may be permitted to upon at trial.  Thus, the Defendants cannot go outside the comments to justify the “public interest”.

10. I have already found that the particulars in question, in relation to the question of justification, raised matters which were substantially different to the imputations pleaded by the Plaintiff. I found that the Defendant could not plead or rely on those particulars to establish the defence of justification.

11. Consistent with that decision the particulars that are now sought to be used in relation to the question of “public interest” also do not address the imputations alleged by the Plaintiff. Accordingly I find that particulars cannot be relied in that way. The proposed amendment will not be allowed.

12. I will hear the parties as to the form of the orders and the question of costs.