Cock & Anor v Hughes & Ors - [2001] WASC 24

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: COCK & ANOR -v- HUGHES & ORS [2001] WASC 24

CORAM: HASLUCK J

HEARD: 18 DECEMBER 2000

DELIVERED : 5 FEBRUARY 2001

FILE NO/S: CIV 1540 of 2000

BETWEEN: ROBERT ENOS COCK
First Plaintiff
LLOYD PATRICK RAYNEY
Second Plaintiff
AND
ROBERT HUGHES
First Defendant
AUSTRALIAN BROADCASTING CORPORATION
Second Defendant
SWAN RADIO AND TELEVISION BROADCASTERS PTY LTD (ACN 008 689 745)
Third Defendant

Catchwords:

Defamation - Pleadings - Innuendo - Sufficiency of imputations plea - Aggravated and exemplary damages

Legislation:

Broadcasting Services Act1992, s 206

Supreme Court Rules, O 21 r 5, O 20 r 19(1)

Result:

Leave to amend refused

Representation:

Counsel:

First Plaintiff                :     Mr M L Bennett
Second Plaintiff            :     Mr M L Bennett
First Defendant             :     Mr W S Martin QC & Mr S M Davies
Second Defendant         :     Mr A C Willinge
Third Defendant           :     Mr P A Tottle

Solicitors:

First Plaintiff                :     Bennett & Co
Second Plaintiff            :     Bennett & Co
First Defendant             :     Mark Andrews & Associates
Second Defendant         :     Blake Dawson Waldron
Third Defendant           :     Tottle Christensen

Case(s) referred to in judgment(s):

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Fullam v Newcastle Chronicle & Journal Ltd (1977) 3 All ER 32
Grappelli v Derek Block Holdings Ltd (1981) 2 All ER 272
Gumina v Williams (No 1) (1990) 3 WAR 342
Jones v Skelton [1963] 1 WLR 1362
Knupffer v London Express Newspaper Ltd [1944] AC 116
Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332
Lewis v Daily Telegraph Ltd [1964] AC 234
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970696; 11 December 1997
Ronci v Nationwide News Pty Ltd & Anor, unreported; SCt of WA; Library No 960340; 21 June 1996
Sims v Wran [1984] 1 NSWLR 317
Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Smith v Littlemore (1996) 15 WAR 289
Speight v Gosnay (1891) 60 LJQB 231
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Taylor v Jecks (1993) 10 WAR 309
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Vitale & Ors v Bednall & Anor [2000] WASC 207
Webb v Bloch (1928) 41 CLR 331
Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71

Case(s) also cited:

Abbott v TCN Channel Nine Pty Ltd, unreported; SCt of NSW (Hunt J); 6 October 1987
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Australian Broadcasting Commission v Comalco Ltd (1986) 12 FCR 510
Gardiner v Ray [1999] WASC 140
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 261
Pickering v Publishing and Broadcasting Pty Ltd, unreported; SCt of NSW (Levine J); Library No 21293; 21 June 1996

HASLUCK J: The plaintiffs advance a claim in defamation arising out of certain remarks allegedly made by the first defendant, Robert Hughes, on or about 10 May 2000 in the course of a radio broadcast conducted by the ABC and on or about the same date in the course of a television broadcast put out by the Nine Network. The remarks are said to have been made following upon a court appearance by Mr Hughes and his acquittal of charges of dangerous driving brought against him in the Broome Court of Petty Sessions. The plaintiffs allege that, in the case of both broadcasts, the remarks were defamatory and that the first defendant is liable for the same because the natural and probable consequence of making the remarks in the course of the two interviews was that his remarks would reach a wide audience. The plaintiffs allege that the second and third defendants as broadcasters are liable to the plaintiffs for republishing the first defendant's remarks.
A writ of summons was issued by the plaintiffs on 12 May 2000 bearing an indorsement of claim. The Registrar of the Supreme Court extended the time for filing a statement of claim at a directions conference. The plaintiffs then filed and served a statement of claim dated 27 June 2000 setting out the words complained of and providing particulars of the various publications. This statement of claim was not filed within the time limit prescribed by the Registrar, being late by four working days.
The first defendant by his solicitors objected to the late filing of the statement of claim. The first defendant also foreshadowed an application to strike out the statement of claim in its entirety or, alternatively, certain paragraphs. The solicitors for the second and third defendants raised similar issues. Each of the defendants proceeded to file applications to strike out. This led to lengthy exchanges of correspondence between the parties concerning the adequacy of the statement of claim and other procedural matters.
In a letter to the plaintiffs' solicitors dated 9 October 2000, the solicitors for the first defendant denied that the filing of the first defendant's application to strike out constituted a waiver of their objection to the plaintiffs' alleged non‑compliance with the time limit for filing a statement of claim. They added: "You simply need to bring an application for leave to file a statement of claim in the form of the pleading that you now intend to proceed with."
The plaintiffs have now brought on for hearing a chamber summons whereby leave is sought to amend the statement of claim in accordance with a minute of proposed amendment of statement of claim filed and served on 8 December 2000. For ease of reference, I will call this minute the proposed statement of claim.
The defendants concede that the minute meets some of the objections raised in the course of correspondence. Nonetheless, they oppose the plaintiffs' application for leave to amend. Counsel for the defendants recognise that by O 21 r 5 of the Supreme Court Rules the Court may allow any party to amend his pleading. They contend, however, that the Court will not usually grant leave to amend a pleading into a form which ought to be struck out. See Seaman Civil Procedure at par 21.5.4. I note in passing that in regard to pleading issues the Court generally proceeds upon the basis that the facts alleged in the statement of claim are assumed to be true. I was prepared to receive affidavit evidence concerning the observance of time limits and the application for leave to amend.
In summary, then, I have before me four applications being an application by the plaintiffs to amend the statement of claim and an application by each defendant to strike out the statement of claim.
More particularly, the first defendant has filed and served an application to strike out the statement of claim pursuant to O 20 r 19(1)(a), (c) and (d) on the grounds that it fails to disclose a reasonable cause of action and might prejudice, embarrass or delay the fair trial of the action. The first defendant also contends that in the absence of any order extending time, the plaintiffs cannot or should not be allowed leave to amend.
The second defendant has brought on for hearing an application to strike out par 13, par 14 and par 15.2(d) of the original statement of claim on the grounds that the paragraphs in question disclose no reasonable cause of action or, alternatively, are likely to prejudice, embarrass or delay the fair trial of the action. The third defendant has made an application to strike out to similar effect. I note at the outset, however, that because the remarks made by the first defendant in the course of the third defendant's broadcast differed from those made on the radio broadcast, some different issues arise in respect of this application, although the imputations complained of by the plaintiffs in each case are similar.
It became apparent at the hearing that counsel for the various parties were prepared to proceed upon the basis that the application for leave to amend and the applications to strike out should be dealt with concurrently. This meant that debate was directed to the adequacy of the proposed statement of claim in terms of the plaintiffs' minute dated 8 December 2000. Accordingly, against this background, I will treat the proposed statement of claim as the appropriate point of reference and deal with the applications before me upon that basis.
When asked to set out his position in overview, counsel for the first defendant submitted that the minute reflecting the proposed statement of claim was characterised by significant and pervasive deficiencies and was clearly in need of reconsideration. On his case, the appropriate course would not be to allow leave to amend or, putting it another way, the Court should strike out the entire document, but with leave to replead if appropriate. Orders to this effect would compel the plaintiffs to enunciate clearly the case being advanced against the defendants so that they would be in a position to file and serve statements of defence.
Counsel for the first defendant seemed to accept that the publications complained of could arguably give rise to a cause of action, but on his submission causes of action had not yet been enunciated in the manner required by the rules of court. The failure to comply with the prescribed time limits represented an additional reason why leave to amend should not be allowed. His description of the first defendant's position in overview was expressly made subject to a reservation concerning a broadcast of the first defendant's words on Channel Nine, being the television station controlled by the third defendant. The first defendant's position in regard to that matter was that there was nothing defamatory of the first plaintiff in the broadcast in question and that no statement of claim, however formulated, would be able to identify a cause of action by the first plaintiff with respect to that publication. I will return to this aspect of the matter in due course.
I pause to note that counsel for the second and third defendants were generally content to follow the lead provided by counsel for the first defendant, save for certain matters affecting their clients in particular. Accordingly, for the sake of an orderly discussion, I will henceforth treat the submissions made by the first defendant as a convenient point of reference in identifying the objections taken to the proposed statement of claim and will turn to the specific matters raised by the second and third defendants where necessary. I note, however, that the second and third defendants did not maintain any objection to the statement of claim being filed out of time. They accepted that there was a statement of claim before the Court which was capable of being amended if the Court was satisfied that the amendments proposed by the plaintiffs were appropriate.
Before turning to the issues raised by the defendants, it will be useful to look at the structure of the proposed statement of claim.
The plaintiffs say that the first plaintiff is the Director of Public Prosecutions or DPP for the State of Western Australia. The second plaintiff is a barrister and solicitor employed by the DPP as a prosecutor. It was common ground at the hearing before me that the second plaintiff was counsel for the Crown at the hearing before the Court of Petty Sessions in Broome. The second defendant, or ABC, is the broadcaster of radio programmes throughout the Commonwealth of Australia, including a programme hosted by its employee, Mr Liam Bartlett. The third defendant is the proprietor of Channel Nine and broadcasts television programmes throughout the Perth metropolitan area, including the Channel Nine "Today" morning television programme hosted by Ms Tracy Grimshaw.
The plaintiffs allege in par 5 of their claim that on or about 10 May 2000 and from Broome, the first defendant spoke and thereby published the words complained of to, inter alia, Mr Liam Bartlett and to all ABC radio listeners within the broadcast area.
The paragraph in question includes a transcript reflecting various exchanges between Mr Bartlett and Mr Hughes. It commences with some introductory comments by Mr Bartlett to the effect that dangerous driving charges against internationally renowned art critic Robert Hughes were thrown out of court in Broome by a Magistrate last night. The Magistrate declared that the prosecution had failed to prove that Mr Hughes was driving on the wrong side of the road at the time of a head‑on collision on a remote north‑west road. The two‑day trial "was effectively derailed when the Crown's two star witnesses - occupants of the other vehicle - were charged with allegedly attempting to extort money from Mr Hughes in return for changing their testimony."
In the course of the following exchanges Mr Hughes said that he was "ecstatic" about the outcome. He expressed surprise that "these turkeys that the Director of Public Prosecutions sent up to go after me had a year to prepare that case and they did it so badly." In responding to whether the Magistrate was critical of "the prosecution" he said that the Magistrate "really gave them curry at the end of his summing up which was indeed appropriate since one of them was an Indian gentleman." In responding to a possible embarrassment for "our Director of Public Prosecutions' office", Mr Hughes said that he hoped "it will be a substantial political setback for him because this was, in essence, if not purely a political trial, it was certainly a trial actuated by a career ambition on the part of the Director of Public Prosecutions and his off‑kicks." Mr Hughes added later that "this was going to be a fit‑up and I think it may have been over confidence that caused them to blow it."
Mr Hughes went on to say that he could remember little about the accident because his memory was knocked out of him. He was glad to have had his name cleared so that he could continue with the documentary series he had been working on at the time of the accident. He realised it was improper to have taken a photograph is the courtroom "of the two prosecution guys and my two attorneys". He noted that "the head prosecutor" had taken umbrage at this.
When Mr Hughes was asked whether he had a message "for the Director of Public Prosecutions here in Western Australia" he went on to say: "I think probably my message to him would be don't try and tangle with art critics and be very careful the next time you try and get somebody fairly high profile in order to make some political or professional capital of because you never know, you might make the same mistake twice, that's my message for you DPP."
Mr Hughes then added as an afterthought: "If you're doing it through a deputy make sure he does his homework."
The exchanges set out in par 5 and reflected in the transcript are called "the first defendant's radio publication".
Further particulars of publication provided in par 5 were that the broadcast area of the ABC radio station was throughout the State of Western Australia. Publication was also made from Mr Hughes to any sound engineers, producers or similar staff of Mr Bartlett's radio programme in Perth.
The plaintiffs plead in par 6 that by way of innuendo the first defendant's radio publication conveyed the imputations set out in that paragraph to the persons described in par 7. The recipients of the publication, the plaintiffs allege, knew that the first plaintiff was the DPP and that the second plaintiff was the prosecutor "who conducted and had the conduct of the prosecution of the Crown of the trial of the defendant" for dangerous driving in Broome which concluded on 9 May 2000.
Paragraph 7 contains particulars of identification/knowledge of extrinsic facts. The relevant particulars include reference to the dangerous driving charges having been the subject of extensive publicity to the public at large by the second and third defendants and in newspaper reports. The plea is that these reports had identified the roles played by the plaintiffs in the proceedings. Importantly, reference is also made to the identity of the first plaintiff as DPP as being a matter generally known to persons practising or involved in the law.
I will look at the four specific imputations comprising the par 6 imputations in due course. In essence, the words complained of are said to mean that the plaintiffs had abused their positions as prosecutors. Paragraph 6.4 is to the effect that the plaintiffs and each of them had acted illegally by intending to and actually concocting and manufacturing evidence in order to attempt to secure the conviction of the first defendant.
The plaintiffs plead in par 8 that the first defendant's radio publication was made in circumstances where the first defendant's spoken words were communicated by way of telephone to Mr Bartlett and thereby immediately broadcast or, alternatively, broadcast by way of a pre‑recorded interview, so that the first defendant is liable for publication. Further, and in the alternative, it was the natural and probable consequence of the first defendant's radio publication that its contents would be republished.
The plaintiffs say in par 9 that by reason of the matters described at par 8, the first defendant is liable for each and every republication of the content of the first defendant's radio publication because he knew that the publication was being made to Mr Bartlett in the course of an interview which would be broadcast. In par 11, it is alleged that to the extent the words published to Mr Bartlett and his staff constituted a slander, they were defamatory of the plaintiff in their occupations. In par 12, it is said that, to the extent the words were published instantaneously to listeners, the effect of s 206 of the Broadcasting Services Act1992 (Cth) is that a broadcast of this kind is deemed to be publication in permanent form. I pause here to note that these paragraphs strongly suggest that, as separate causes of action, the plaintiffs complain of, first, a slander conveyed to Mr Bartlett and his staff and, second, a defamation conveyed to the ABC radio audience for which the first defendant is liable because such a publication was the natural and probable consequence of the interview.
The plaintiffs plead in par 13 that on or about 10 May 2000, the ABC broadcast throughout the State of Western Australia the words complained of. The exchanges reflected in the transcript are then repeated. This is described as the second defendant's radio publication. The plaintiffs say in par 14 that by way of innuendo various imputations (corresponding with the par 6 imputations) were conveyed to certain recipients having knowledge of the extrinsic facts and matters set out in par 15. The description in par 15 of those having the knowledge corresponds to the description in par 7, that is to say, those who could identify the plaintiffs because of previous media publicity or because they were involved in or practising law.
The plaintiffs plead in par 18 that on or about 10 May 2000, the first defendant spoke and thereby published to, inter alia, Ms Tracy Grimshaw, the presenter of Channel Nine's "Today" morning television programme the words complained of which are then set out in the form of a transcript. These words are called the first defendant's television publication.
The first defendant's television publication covers similar ground, but the assertions made by Mr Hughes on this occasion are of a different kind. When asked about his accusation that "the prosecutor" had gone after an expatriate elitist "politically", Mr Hughes said that the purpose was less to persecute a writer, but "was to show what big fine fellows they were at putting me away. It would be good publicity for them, it was a high profile case, you know and it would've helped their political and legal ambitions." He went on to say that he was thrilled to be acquitted. It is important to note in regard to this broadcast that the first defendant did not make any explicit reference to the DPP or to his "off‑kicks" or to a "deputy". The principal reference was to "the prosecutor".

The plaintiffs plead in par 19 that by way of innuendo the words complained of conveyed the imputations set out in that paragraph. These imputations resemble the par 6 and par 14 imputations. For example, par 19.1 is to the effect that the first plaintiff had abused his position as the DPP by initiating and maintaining the prosecution of the defendant so as to further his political and professional career. In this case, however, unlike the pleas in par 6 and par 14, there is no imputation pleaded concerning illegal conduct referable to the concocting of evidence.
In par 20 reference is made to the recipients of the first defendant's television publication and their state of knowledge. In this case, however, it is pleaded, additionally, in par 20.3 and par 20.4 that the recipients of the broadcast knew not only the identity of the plaintiffs, but also that the first defendant had previously attacked the DPP and that prosecutions were conducted by prosecutors employed within the DPP's office.
The plaintiffs say in par 21 that Mr Hughes made the first defendant's television publication in circumstances where Mr Hughes knew it would be republished.
In par 24 the plaintiffs say that on 10 May 2000 the third defendant, Channel Nine, broadcast the words complained of which are described as the third defendant's television publication. Again, the transcript covers similar ground and refers to the failure of the prosecution.
The plaintiffs plead in par 25 that by way of innuendo the words complained of conveyed the imputations set out in that paragraph. The par 25 imputations correspond to the par 19 imputations. Extrinsic facts are pleaded in par 26.
In summary, then, one notices that the plaintiffs were not identified by their names in either of the two broadcasts and for that reason the plaintiffs say in each case that they were defamed by way of innuendo. Extrinsic facts are pleaded with a view to establishing that certain listeners/viewers were in a position to identify the plaintiffs as the persons under attack. To date, the plaintiffs have not provided particulars setting out the names of the listeners/viewers in question.
The statement of claim is lengthy and at a first glance might appear prolix and repetitious to a layman. Counsel for the parties, however, recognise a need for particularity so that the various discrete causes of action are clearly apparent. To my mind, it emerges after a careful reading of the proposed statement of claim that the claims being advanced by the plaintiffs are as follows:
(a)A claim in slander against the first defendant arising out of the Bartlett radio broadcast, this being referable to a publication to Bartlett and his staff (per the imputations pleaded in par 6);
(b)a defamation claim against the first defendant arising out of the Bartlett radio broadcast, this being referable to a publication to the radio audience in circumstances where such a publication was a foreseeable consequence of the interview (per the par 6 imputations);
(c)a defamation claim against the second defendant arising out of a radio broadcast, this being referable to a republication of the first defendant's allegedly defamatory remarks (per par 14 imputations);
(d)a defamation claim against the first defendant arising out of the Grimshaw television broadcast in circumstances where publication on the Nine Network's 'Today' television program was a foreseeable consequence of the interview (per par 19 imputations);
(e)a defamation claim against the third defendant arising out of the television broadcast, this being referable to a republication of the first defendant's allegedly defamatory remarks (per par 25 imputations).
The plaintiffs complain of imputations pleaded in the same form arising out of the first defendant's radio publication and the second defendant's radio publication (the par 6 and par 14 imputations arising out of the Bartlett broadcast). The plaintiffs complain of imputations pleaded in the same form arising out of the first defendant's television publication and the third defendant's television publication (the par 19 and par 25 imputations arising out of the Grimshaw broadcast), save that in this latter case concerning the TV broadcast, the pleaded imputations do not include an imputation of illegal conduct.
The plaintiffs say that causes of action arise against each of the defendants because the first defendant is responsible for publishing the words complained of and the second and third defendants are responsible for the alleged republications.
The plaintiffs go on to refer to various matters which become the basis for a claim for damages against each defendant, including compensatory aggravated damages and exemplary damages.
The defendants challenge the proposed statement of claim in various ways. I will deal with the specific criticisms in due course. It follows from the summary of the claim I have just given, however, that in general terms the structure of the pleading is clear and comprehensible. The many detailed criticisms brought forward by the defendants must be viewed in that light.
Issues raised by the defendants included the question of whether a cause of action in slander apparently disclosed by the statement of claim had been sufficiently pleaded, whether the plaintiffs in certain instances were relying on allegations of publication or republication, whether the imputations pleaded by the plaintiffs were capable of arising from the words complained of, whether the imputations had been formulated with sufficient precision, whether the persons said to have knowledge of extrinsic facts bearing upon the identity of the plaintiffs had been sufficiently described and whether the facts and matters pleaded in regard to damages were sufficient to support claims for aggravated and exemplary damages against each of the defendants.
Let me now turn to the relevant principles of law.
An imputation will be defamatory if it tends to lower the plaintiff in the estimation of right‑thinking members of the community. The first question to be addressed upon a striking‑out application will often be whether the pleaded imputations can be said to arise from the words complained of. If so, the next question will be whether the words complained of are capable of conveying a meaning defamatory of the plaintiff.
It is well accepted that imputations will be struck out at this stage of the proceedings, if they are untenable or manifestly groundless: Gumina v Williams (No 1) (1990) 3 WAR 342 at 346; Taylor v Jecks (1993) 10 WAR 309 at 319 and Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 675. Further, an imputation must express the precise act or condition asserted of or attributed to the plaintiff or with which the plaintiff was charged and should not be ambiguous or contain irrelevant matter: Taylor v Jecks at 316 ‑ 319.
Whether the words complained of are capable of conveying an allegedly defamatory meaning contended for is a question of law. The test is whether, under the circumstances in which the writing was published, reasonable people to whom the publication was made would be likely to understand it in a libellous sense: Jones v Skelton [1963] 1 WLR 1362 at 1370 ‑ 71. As a general rule, a party is entitled to have the imputations for which it contends left to the trier of fact for ultimate decision: Smith v Littlemore (1996) 15 WAR 289 at 294 ‑ 295; Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332.
In deciding whether or not words are capable of conveying an allegedly defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation and will assume that the ordinary reader is a person of fair average intelligence who does not live in an ivory tower, who is not unusually suspicious or naive or avid for scandal and who is not inhibited by strict rules of construction: See Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 ‑ 259 and Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7. An imputation should represent the final distillation of the alleged defamatory meaning. See Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 15.
A plaintiff who seeks to rely on an innuendo meaning has to plead and prove the facts or circumstances which gave the words a special meaning. He has also to prove that the words were published to one or more persons who knew these facts or circumstances. Where identification is an issue, the matter can sometimes be decided by construing the words themselves in their context.
Where identification depends on extrinsic facts, these extrinsic facts must be pleaded because they form part of the cause of action. In many, and perhaps most cases, the plaintiff will have to plead that there were persons who knew the facts which established identity or gave the words a special meaning. But there will be cases involving newspapers and similar media where the facts are known sufficiently widely for an inference to arise that some persons knew the facts. See Australian Defamation Law and Practice at par 25,095; Duncan and Neill on Defamation (2nd ed) par 6.04 and par 8.05. See Fullam v Newcastle Chronicle & Journal Ltd (1977) 3 All ER 32 at 39; Grappelli v Derek Block Holdings Ltd (1981) 2 All ER 272 at 278. This Court has held on a number of occasions that the plaintiff is not obliged to plead as a material fact the precise identities of those persons who understood the words to refer to the plaintiff. The decided cases suggest that this matter can be dealt with by a request for particulars: Gumina v Williams (No 1) (supra); Vitale & Ors v Bednall & Anor [2000] WASC 207.
Difficult questions may arise where the words complained of contain defamatory allegations against more than one person or against a group of people. Where the plaintiff is not named, the question is: would reasonable persons reasonably believe that the words referred to the plaintiff? There are cases in which the language used in reference to a limited class may be reasonably understood to refer to every member of the class, in which case every member may have a cause of action: Knupffer v London Express Newspaper Ltd [1944] AC 116 at 119.
In regard to the pleading of republications, Australian Defamation Law and Practice has this to say at par 25,090:
"The defamatory matter published by the defendant may have been republished by others. It is no defence for the republisher that he has merely repeated another's libel or slander. However, the plaintiff may choose to sue the original publisher for repetition of the libel by others, and may do so where:
(a)he has authorised or intended the person to whom he published the defamatory matter to republish it; or
(b)he published in circumstances where its republication was the natural and probable result of the original publication; or
(c)the original publication was to a person who was under a moral duty to republish it.
If the plaintiff relies upon republication by another, he must specify where and when and by whom and (except in most media cases) to whom the defamation was republished in accordance with the rules which apply to the original publication."
I note also that counsel for the parties drew attention to Sims v Wran [1984] 1 NSWLR 317. In that case, Hunt J held that where a prominent politician makes a statement at a press conference the natural and probable consequence of his act will be that his statement will be repeated in the media, thereby making him responsible for the republication thereof, and usually in whatever form in which that republication takes place. See Speight v Gosnay (1891) 60 LJQB 231; Webb v Bloch (1928) 41 CLR 331.
In essence, Hunt J indicated that a plaintiff has a choice of either complaining separately of each republication or relying upon such republication simply upon the issue of damages. If a plaintiff intends to complain separately of a republication of what took place at a press conference, he must plead each such republication as a separate paragraph in his statement of claim, to enable the defendant to plead to it whatever defence may be appropriate to that particular publication.
On the other hand, Hunt J indicated, a plaintiff is entitled if he wishes only to complain of the original publication, but to seek to recover as a consequence of that original publication the damage which he suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication. But if the plaintiff intends to do so, he is obliged to make his intention clear in his statement of claim.
In applying all these principles to the circumstances of the present case, one must keep steadily in mind that although defendants are indeed entitled to have the case being advanced against them specified with precision, the rules of pleading should not be used as a vehicle for undue technicality. Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 provides some support for the view that the degree of specificity of pleading required in a particular case is a matter of judgment, bringing into play considerations of practical justice in addition to matters of linguistic refinement. As Kirby J noted in that case at 151, the rules are not there to ensnare plaintiffs unjustly in burdensome, costly and dilatory pleading disputes where the defendant did not pause to offer the recipients of the alleged defamation the refinement of particularity which he might later wish to allege as all he meant to convey.
Against this background, I must now turn to the various issues raised by the applications before me.

Transcript issue

Prior to the comparatively recent delivery of the plaintiffs' minute of proposed statement of claim, there had been some exchanges between the parties as to the question of whether the plaintiffs were obliged to plead the entirety of the exchanges constituting the Bartlett radio broadcast and the Grimshaw television broadcast.
Counsel for the first defendant seemed to accept that the transcripts set out in the proposed statement of claim reflected the entirety of the exchanges, with the result that he did not press this point. Nonetheless, as this issue, against the background of extended exchanges between the parties, might be thought to have some importance in regard to an award of costs, I touch upon it for the sake of completeness.
It follows from the concession made at the hearing that this is no longer a live issue, and it seems that I am entitled to proceed upon the assumption that the respective transcripts are complete. I will leave any further debate concerning this matter until the question of costs falls to be dealt with.

Out of time issue

The first defendant contended that the plaintiffs' statement of claim dated 27 June 2000, and any subsequent version of it such as the proposed statement of claim, should be struck out on the ground that it was filed out of time without leave of the Court. I have already noted that the second and third defendants did not raise any issue concerning this aspect of the matter.
I noted earlier that in the course of the very lengthy exchanges between the parties concerning this matter, the first defendant put to the plaintiffs that what was required in order to rectify their supposed default was the bringing of "an application for leave to file a statement of claim in the form of the pleading that you now intend to proceed with." The plaintiffs submit that the proposed statement of claim represents a response to that invitation.
Order 2 r 1 of the Supreme Court Rules provides that where there has been a failure to comply with the rules, the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings. Order 2 r 2 provides that an application to set aside for irregularity any step taken shall not be made unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
Seaman Civil Procedure notes at par 2.2.2 that irregularities can be waived if a party has taken some step which is necessary or useful. In order to establish waiver, it must appear that the proper inference is that by going on in some way, the party has indicated an intention not to rely on the point thereafter. If the conduct makes it clear that the irregularities relied upon, it cannot constitute a waiver.
It is true that the first defendant purports to have maintained its position consistently throughout, namely, that the failure to comply would not be waived. Nonetheless, it did indicate to the plaintiffs a manner in which the irregularity could be cured, that is to say, by the filing of a further statement of claim. Accordingly, in my view, now that the plaintiffs have proceeded to file a minute of proposed statement of claim, and various challenges to that further document have been canvassed by the parties, it is no longer open to the first defendant to insist upon the earlier non‑compliance with the time limit prescribed by the Registrar's order.
I note also that the first defendant cannot point to any specific prejudice arising from the alleged non‑compliance with the time limit. At all material times, the first defendant has been at liberty to challenge the adequacy of the plaintiffs' pleading.
Accordingly, for these reasons, the application to strike out upon this basis will be dismissed.

Republication issue

Paragraph 5 of the proposed statement of claim asserts that on or about 10 May 2000, the first defendant "spoke and thereby published to, inter alia, Mr Liam Bartlett in Perth in the State of Western Australia and upon a radio programme broadcast upon the second defendant's radio station ABC Radio 720 AM and thereby to all listeners within the broadcast area in the circumstances described in paragraph 8 below, the following words of and concerning the first and second plaintiffs … " The rest of that paragraph contains the transcript of the Bartlett radio broadcast.
The first defendant submits that the plea in par 5 is embarrassing in that it rolls together a plea in respect of a publication to "inter alia" Mr Bartlett with a plea of a publication "upon a radio programme" to "all listeners within the broadcast area". It is not clear whether par 5 is only intended to relate to the publication to Mr Bartlett or also relates to a republication by the second defendant for which the first defendant is sought to be made liable.
The first defendant submits further that the embarrassment is underscored by the plea in par 11 which suggests that the first defendant is sued for a slander to Mr Bartlett and the existence of a separate plea in par 8 and par 9 relating to the alleged liability of the first defendant for republication by the second defendant.
The plaintiffs say in answer that in circumstances where there was an interview conducted (presumably by telephone) to be broadcast live or, alternatively, by way of pre‑recorded interview upon a radio station, then this is arguably (to the best of the plaintiffs' knowledge) a publication to Mr Liam Bartlett and any other persons who might have received the communication in a similar manner to Mr Bartlett, such as the radio station sound engineers, co‑presenters or producers.
The plaintiffs say further that the pleas at par 8 and par 9 are properly made to demonstrate that if the first defendant's words were immediately broadcast upon the second defendant's radio station, then the first defendant would be liable for those words. The final words of par 8.2 make it clear that the first defendant is liable not only for his publication to Mr Bartlett and for the publication of those words by the second defendant to its listeners/recipients, but also for any of those listeners'/recipients' subsequent republication of the content of the first defendant's radio publication.

The plaintiffs say further that they have been careful to particularise in particular (c) to par 9 that the republication of the first defendant's publication by listeners/recipients of the second defendant's radio signal is relied upon as to damages only and not as separate causes of action.
In reviewing the authorities bearing upon this issue, I have noted that a plaintiff may choose to sue the original publisher for repetition of the libel by others and may do so where he authorised or intended the person to whom he published the defamatory matter to republish it, or he published in circumstances where its republication was the natural and probable result of the original publication.
In the circumstances of the present case, bearing in mind the circumstances in which the radio broadcast was made, I have little doubt that the plaintiffs, by a properly formulated claim, are in a position to advance a claim in slander that the first defendant published the words to the interviewer Bartlett and others in his studio and, additionally, as a separate cause of action that the first defendant is responsible for the words having been published to the radio audience in that this was the natural and probable consequence of his being approached by an ABC radio interviewer to comment upon the successful verdict he had just obtained. It follows from my earlier summary concerning the structure of the claim that, viewed objectively, the statement of claim does seem to be advancing two discrete causes of action against the first defendant in regard to the radio broadcast, being subpars (a) and (b) in my summary.
To my mind, however, the plea as presently formulated is embarrassing because it is not made entirely clear as to whether this is the course the plaintiffs intend to pursue. In regard to this issue, I am persuaded by the first defendant's plea that the plaintiffs have arguably rolled up two separate causes of action in a manner which is possibly confusing. I note in passing that the extrinsic facts required to establish a plea by way of innuendo in regard to the small group in Mr Bartlett's studio may be different from the facts relied on in regard to the wider audience, and this, too, suggests that the plea in its present form is embarrassing.
Accordingly, for these reasons, I am not satisfied that the plaintiffs should be allowed leave to present the proposed statement of claim as the final form of their pleading. If the proposed amendment were allowed, then, for the reason I have just given, an application to strike out would succeed. It follows from what I have said, however, that the plaintiffs should be allowed leave to replead, with a view to removing the potential embarrassment. I have already indicated in my summary that in general terms the structure of the pleading is clear and comprehensible. Hence, as to this matter, the plaintiffs need only make a few adjustments to the claim in order to remove any possibility of confusion.
I am not persuaded by the first defendant's submission that the allegation concerning republication by listener recipients is embarrassing. Paragraph 9(c) makes it quite clear, consistently with the observations of Hunt J in Sims v Wran (supra), that the alleged republication is not pleaded as a separate cause of action, but goes to damages only.
The reasoning I have just provided applies with equal force to other parts of the pleading. Counsel for the third defendant raised the republication issue in regard to par 21 of the proposed statement of claim. The plaintiffs allege that the first defendant made the Grimshaw television broadcast in circumstances whereby such publication was to be broadcast immediately or, in the alternative, the first defendant intended that the broadcast be republished upon Channel Nine network Today show. The plaintiffs say in par 21.2.3 that it was a natural and probable consequence that republication would occur and the first defendant is thereby liable for each and every republication by the Nine network's broadcasters throughout the Commonwealth of Australia.
I have to say that in this case I am not persuaded that the plaintiffs' plea is insufficient as not disclosing a reasonable cause of action or being embarrassing. It appears to me that, in this case, the plaintiffs are quite clearly asserting that the circumstances in which the first defendant uttered the words complained of were such that he is responsible for a publication not simply to the interviewer Grimshaw, but to the wider audience. Accordingly, I am not satisfied that the third defendant's application to strike out should succeed on this ground.
An issue also arose concerning the plea in par 21 that the first defendant foresaw and authorised republication by the third defendant without definition of the Nine Network or its local broadcasters. It follows from my earlier summary that, in my view, the plaintiffs are not relying upon multiple causes of action in respect of each republication, but upon the cause of action indicated in subpars (d) and (e) of my summary in respect of the television broadcast, that is to say, a broadcast upon the Nine Network's "Today" television programme. I do not consider that the plea in its present form is embarrassing and particulars can be applied for it clarification is required as to the extent and alleged effect of the republication.

Imputations issue

The first defendant challenged the adequacy of the imputations pleaded in par 6 concerning the first defendant's radio publication in various ways. It will be useful at this point to voice a brief reminder that the imputations in par 6 were reproduced later in par 14, par 19 and par 25, save for (as to par 19 and par 25) the illegal conduct plea in par 6.4. Further, in each case the imputation is said to have been conveyed by way of innuendo from which it follows, as the plaintiffs recognise in later paragraphs, that extrinsic facts must be pleaded in support of the proposition that publication was made to persons who had knowledge of special circumstances enabling them to identify the individuals under attack and to comprehend the potentially defamatory nature of the words being spoken. I will return to the extrinsic facts issue in due course.
The imputation pleaded in par 6.1 is that the first plaintiff had abused his position as the Director of Public Prosecutions by initiating and maintaining the prosecution of the defendants so as to further his political and professional career.
The first defendant submits that use of the expression "so as to" amounts to an imputation that the sole purpose of the prosecution was to further the political and professional career of the relevant plaintiff. The first defendant submits that an imputation to that effect is not capable of arising from the words complained of.
The first defendant also submits that use of the expression "initiating and maintaining" is embarrassing. The words convey separate meanings and if each is sought to be relied on, they should be separately pleaded. The first defendant also submits that an imputation that the first plaintiff "initiated" the prosecution is not capable of arising from the words.
In regard to this latter criticism of the pleading, counsel for the first defendant placed reliance upon a passage in Taylor v Jecks (supra) at 320, in which Anderson J pointed out that distinct imputations should be distinctly pleaded and struck out as embarrassing the first part of a "rolled up" plea that the plaintiff in that case "had shown a lack of judgment and acted in a manner inappropriate to his office". In his view, a plea in that form suggested that different imputations were to be relied on rather than the same imputation differently expressed.
In that case, certainly, the two components of the plea were undoubtedly too broad and too far apart to be regarded as expressing essentially the same thought. In the present case, however, the words are expressing essentially the same thought.
In my view, the first defendant's submissions reflect a position which can be described as unduly technical. In the course of various exchanges, the first defendant arguably asserted that the DPP had gone beyond the strict requirements of his office in order to enhance his own standing in a way which could confer benefits upon him in terms of his career. Mr Hughes referred to a trial actuated by a career ambition on the part of the DPP and his "off‑kicks". Later, he spoke of the DPP making some political or professional capital out of the matter, and linked the DPP's "deputy" to this endeavour. I am not persuaded that the words "so as to" amount to a plea that advancement of the first plaintiff's career was the sole purpose of the prosecution. The plea indicates that advancement was simply an element of the alleged abuse of office.
In my view, the pleaded imputation is capable of arising from the words used. Further, the imputation pleaded in par 6.1 is sufficiently clear for the first defendant to appreciate the nature of the case being advanced by the plaintiffs. I am not satisfied that the imputation is untenable or manifestly groundless. I apply the precept in Smith v Littlemore (supra) and Leslie v Mirror Newspapers (supra) mentioned earlier: as a general rule, a party is entitled to have the imputation for which it contends left to the trier of fact for ultimate decision. Accordingly, I am not satisfied that this imputation should be struck out.
The imputation pleaded in par 6.2 is that the second plaintiff, that is to say, Mr Rayney, being the prosecutor who conducted the case before the Magistrate, had abused his position as a Crown prosecutor by maintaining and conducting the prosecution of the defendant so as to further his political and professional career.
The first defendant repeated the submissions I have just reviewed in regard to this paragraph also. There is, of course, a distinction between the position occupied by Mr Cock, as the DPP, and therefore as Mr Rayney's superior, and the prosecutor who was present at the hearing. This is a matter known to members of the legal profession and others with an understanding of the legal process. However, the decided cases indicate that the ordinary reasonable reader or listener cannot be expected to make fine distinctions. In my view, the audience would arguably have been left with an impression that senior figures on the prosecution side had gone beyond the strict requirements of their official positions in order to advance their careers. Accordingly, I am not satisfied that this imputation should be struck out.
The imputation pleaded in par 6.3 is that the second plaintiff had abused his position as Crown prosecutor by maintaining and conducting the prosecution of the first defendant so as to further the first plaintiff's political and professional career. The observations I have just made apply with equal force in this context.
Counsel for the first defendant described this plea as fanciful and therefore as incapable of arising from the words used. To my mind, the words used, and especially the reference to "off‑kicks", might have left the reasonable listener with an impression that the DPP had surrounded himself with compliant underlings with a view to enhancing his own career. I am therefore not satisfied that this imputation should be struck out.
The imputation pleaded in par 6.4 is that the first and second plaintiffs, and each of them, had acted illegally by intending to and actually concocting and manufacturing evidence in order to attempt to secure the conviction of the defendant.
The first defendant submits that this imputation is not capable of arising from the words. The first defendant argues further that the imputation rolls together concepts of acting "illegally", "intending to" and "actually concocting" and "manufacturing evidence" in order to secure the conviction of the first defendant. He submits that there is insufficient in the words to support those various meanings. Further, and alternatively, it is embarrassing to plead an imputation that relates to both plaintiffs in the same paragraph. Any imputations alleged in respect of a plaintiff should be separately pleaded.
I have already noted in summarising the radio transcript that Mr Hughes commented in speaking of "our Director of Public Prosecutions' office" that "it will be a substantial political setback for him because this was, in essence, if not purely a political trial, it was certainly a trial actuated by a career ambition on the part of the Director of Public Prosecutions and his off‑kicks." Mr Hughes added later that "this was going to be a fit‑up and I think it may have been over confidence that caused them to blow it."
Counsel for the plaintiffs submitted that in this context use of the words "a fit‑up" were highly potent and would have conveyed to listeners with minds not avid for scandal that untoward steps had been taken, directed improperly to affecting the outcome of the prosecution.
In the absence of any suggestion that untoward steps were directed to matters such as bribery or intimidation, I consider that the reasonable listener might have concluded that the evidence had been tampered with or not presented in the proper manner. Accordingly, I consider that the imputation is capable of arising from the words complained of and that the words, if distilled into an imputation of the kind contended for, were capable in law of conveying a meaning defamatory of the plaintiffs.
I mentioned earlier that, to my mind, the listening public would have been left with an impression that senior figures on the prosecution side were implicated, with the result that this is an imputation that can be said to be applicable to both plaintiffs with equal force. Nonetheless, I am persuaded that the plea is embarrassing because both plaintiffs are mentioned. A plea in that form gives rise to a degree of ambiguity as to the nature and degree of the supposed role played by each plaintiff in tampering with the evidence.
Accordingly, I consider that the plea in par 6.4 should be struck out as embarrassing upon that basis, but with leave to replead. In other words, the plaintiffs need to indicate clearly (if that is their position) that each plaintiff is said to have been involved in the concoction of evidence in the same manner, and this should be done by separate paragraphs.
It will be apparent from the summary I gave earlier, that the imputations pleaded by the plaintiffs in regard to the various causes of action, that is to say, the par 6 and par 14 imputations concerning the Bartlett radio broadcast, and the par 19 and par 25 imputations concerning the Grimshaw broadcast, are essentially the same, save for the plea of illegal conduct, which is not relied upon in relation to the Grimshaw broadcast. Accordingly, I will not generally go over the submissions relied upon by the parties in regard to these further issues because my response to the application to strike out in each case conforms to the view I have just expressed.
I must, however, refer to an important aspect of the Grimshaw broadcast adverted to by counsel for the first and third defendants.
Counsel submitted that in the Grimshaw broadcast it could not be said that there was any reference to the first plaintiff, with the result that no reasonable cause of action was disclosed and par 19.1 should be struck out. There was nothing in the Grimshaw broadcast, counsel argued, to suggest criticism of anyone other than those immediately involved in the conduct of the trial, that is to say, the second plaintiff, Mr Rayney, and the person assisting him. In the television broadcast, Grimshaw began by referring to "the prosecutor" and that description, in the singular, established the context.
There is undoubtedly some force in these submissions. It was for this reason, presumably, that the pleader sought to strengthen the plaintiff's hand by alleging in par 20.3 and par 20.4, as additional extrinsic facts bearing upon this cause of action, that some recipients of the television broadcast knew that the first defendant had made previous attacks upon the DPP and that the DPP employed prosecutors within his office.
Nonetheless, one has to take account of the fact that shortly after the first reference to "a prosecutor" Ms Grimshaw referred again to "a prosecutor", but, on this occasion, in a way which suggested that she was referring to the office or institution of prosecutor, meaning not simply the counsel who conducted the trial, but also the person with power to dismiss charges before they went to court. Between these two references, appears a passage in which it is clear that the first defendant is referring to the prosecution being conducted by more than one person. He said, in relation to the prosecutor's supposed political purpose: "I think they (emphasis added) did." He quickly went on to refer to those who wanted to show "what big fine fellows they were at putting me away."
His reference to Russia could arguably have led the reasonable listener/viewer to conclude that Mr Hughes was referring to the powers of the State being arrayed against him and that, in this case, the powers of the State were being exercised by senior figures (or "big fine fellows") on the prosecution side, namely, the DPP and his subordinate who conducted the Crown case at the hearing.
On balance, I consider that the imputation pleaded is capable of arising from the words used. I am not satisfied that the imputation concerning the first plaintiff which is said to be reflected in the Grimshaw broadcast is untenable or manifestly groundless. I am not satisfied that par 19.1 concerning the first plaintiff should be struck out.
This brings me to par 19.2 and the imputation that the second plaintiff had abused his position as Crown prosecutor. I am not satisfied that this plea should be struck out for failure to disclose a reasonable cause of action. Even if I be wrong in the view I have just expressed concerning par 19.1, the words can be certainly taken as a reference to "the prosecutor" who conducted the trial, that is to say, the second plaintiff, Mr Rayney. It follows from earlier discussion concerning par 6.1 and par 6.2 that I am not satisfied the plea is embarrassing.
It follows from earlier discussion that I am not satisfied that par 19.3 is embarrassing because of an alleged duplicity. The defendants submitted in addition, however, that there was nothing in the Grimshaw broadcast capable of supporting the imputation pleaded in par 19.3 that the second plaintiff abused his position so as to further the first plaintiff's career. Again, as with par 6.3, I am not persuaded that the plea is untenable or manifestly groundless. The first defendant referred to the controversy as a "high profile case" that would have helped "their political and legal ambitions". A reasonable listener might have concluded that a compliant subordinate was trying to further his superior's career.

Extrinsic facts issue

The defendants submit that where, as here, plaintiffs plead a true innuendo they must plead and eventually prove publication to someone who had knowledge of the extrinsic facts giving rise to the innuendo.
It will be apparent from my earlier summary that the rules concerning innuendo apply to each of the causes of action. Generally speaking, as exemplified by the plea in par 7, the plaintiffs say in each case that those with knowledge of the extrinsic facts which enabled them to identify the plaintiffs as the persons under attack were those acquainted with the publicity surrounding the controversy and those practising or involved in the law.
The defendants submit that the plaintiffs are obliged to identify such persons with greater particularity , that it to say, by providing the names of such persons.
I have already noted in my review of the law concerning this issue that in cases concerning the media an inference may arise that some persons knew the facts, with the result that greater particularity is not required: Australian Defamation Law and Practice (supra) at 25,095. Further, and in any event, the decided cases indicate that the plaintiffs are not required to plead as a material fact the precise identities of those persons having the knowledge: Gumina v Williams (supra); Vitale v Bednall (supra).

Accordingly, in my view, the plea as to extrinsic facts in its present forum is sufficient and par 7 and the related paragraphs in similar form should not be struck out. The prosecution, trial and acquittal of the first defendant had been the subject of extensive publicity. The plaintiffs were entitled to rely upon the inference that some of the listening/viewing audience must have been aware of the facts which are said to give rise to the innuendo: Fullam v Newcastle Chronicle (supra).
Before leaving this aspect of the matter, however, I must look briefly at par 20.3 and par 20.4 concerning the Grimshaw television broadcast which are additional to the standard form of the plea. The defendants say that these paragraphs are embarrassing because they are too broadly expressed.
It seems to me that this is a matter which can be properly dealt with by a request for further and better particulars and I am therefore not prepared to strike out these paragraphs.

Damages issue

Before turning to the matters raised by the defendants under this heading, it will be useful to look briefly at the relevant principles of law bearing upon aggravated and exemplary damages.
There is a functional distinction which is usually drawn between these two categories of damages. Aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done, whereas damages of the latter kind are intended to punish the defendant and presumably to serve one or more of the objects of punishment, namely, moral retribution or deterrence: Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149.
There is a wide range of circumstances which might warrant an award of aggravated damages, encompassing both conduct in the publication of the defamatory material and conduct thereafter. Damages will be aggravated only by conduct which is unjustifiable, improper or lacking in bona fides. A failure to apologise does not of itself necessarily justify an award of aggravated damages: Ronci v Nationwide News Pty Ltd & Anor, unreported; SCt of WA; Library No 960340; 21 June 1996.
The usual formula, in the case of exemplary damages, is that damages of this kind will be awarded in circumstances in which there is a conscious wrongdoing in contumelious disregard of another's rights or in circumstances in which it is open to the jury to find that the defendant recklessly and arrogantly attacked the plaintiff's reputation for the purpose of publishing a sensational story to attract the custom of newspaper readers: Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71. Exemplary damages are designed to punish the wrongdoer regardless of any effect of the wrong upon the plaintiff: Ronci v Nationwide News Pty Ltd & Anor (supra).
Steytler J observed in Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970696; 11 December 1997 that he would be loath to say that a failure to apologise could never give rise to exemplary damages. Much might, in the end, depend upon the circumstances. If the case was one in which an apology was self-evidently called for and there was a conscious decision, notwithstanding that fact, to refuse to make an apology, then that might ground an award of exemplary damages. It is also apparent from that case that, although the same facts may provide the basis for an award of both aggravated and exemplary damages, it is appropriate to plead the claims for aggravated and exemplary damages arising from the same set of facts in separate paragraphs.
The plaintiffs plead in par 29 that the first defendant made the first defendant's radio publication and the first defendant's television publication in circumstances where the first defendant's defamatory publications were maliciously motivated by spite, ill‑will and resentment at being prosecuted and knew of the falsity of his defamatory publications against the plaintiffs, alternatively was recklessly indifferent as to their truth or falsity. The plaintiffs support this plea by particulars referring to the first defendant's stated position in the interviews that he did not remember the car accident which was the subject of the prosecution of the defendant for dangerous driving. Accordingly, and in any event, the first defendant could not reasonably form any view or derive any basis for asserting that the prosecution case made against him was a "fit‑up".
The plaintiffs plead in par 35 that the third defendant failed to take any reasonable step to determine whether the television broadcast contained defamatory material and proceeded in the prospect that it would obtain benefits from publishing sensational material.
The first defendant submits that par 29 fails to disclose a reasonable cause of action and says further that the claims against him for aggravated and exemplary damages in par 30 and par 31 fall with par 29.
I consider that the facts and matters pleaded, if established, are sufficient to support the claims for damages being advanced by the plaintiffs and will not strike out these paragraphs. The first defendant's alleged remarks, when considered in the context of his concession that he had no clear recollection of the accident, could arguably suggest that his remarks were motivated by ill‑will or were made recklessly, without any real concern for their truth or falsity. This view of the matter is underpinned by the first defendant's derogatory reference to the plaintiffs as "turkeys" and his derogatory reference to the second plaintiff's position as an Australian citizen of Indian descent. The plaintiffs point also to the absence of any apology.
Somewhat different facts and matters were pleaded in support of the claims for aggravated and exemplary damages advanced and against the second and third defendants. In regard to the second defendant, the plaintiffs rely upon Mr Bartlett's alleged failure to cut short the first defendant's remarks and, further, to encouragement of the same. The plaintiffs also refer to the absence of any apology. Similar allegations are made in respect of the Grimshaw broadcast. I consider that the relevant paragraphs are pleaded with sufficient precision, and, having regard to the principles reflected in the decided cases, if established, are sufficient to justify claims for damages in the form contended for. I will not strike out these paragraphs of the pleading.

Summary

I consider that in general terms the plaintiffs by counsel have presented a clear and comprehensible statement of claim. Nonetheless, there are certain passages which give rise to embarrassment, with the result that if the plaintiffs were notionally granted leave to amend then par 5, par 8 and par 9 concerning the slander plea would have to be struck out, together with par 6.4 for the reasons previously given. Accordingly, I consider that the plaintiffs should not be granted leave to amend in terms of the minute, but should be granted leave to submit a further minute of proposed statement of claim within 21 days with liberty to replead with respect to the matters I have identified as embarrassing. I will hear from the parties as to the precise form of the orders to be made.