Elliott v Age Company Ltd
[2006] VSC 52
•24 February 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 7717 of 2005
| HERBERT JAMES ELLIOTT | Plaintiff |
| V | |
| THE AGE COMPANY LTD | Defendant |
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JUDGE: | Bongiorno J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2006 | |
DATE OF JUDGMENT: | 24 February 2006 | |
CASE MAY BE CITED AS: | Elliott v The Age | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 52 | |
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Tort – defamation – libel – relevance of truth where no defence of justification pleaded – presumption of falsity – discovery – relevance of documents – aggravated and exemplary damages – relevance of truth of imputations arising from libellous words.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W. T. Houghton Q.C with Ms G. Schoff | Wisewoulds |
| For the Defendant | Mr B. R. McClintock SC with Dr. T. J. McEvoy | Minter Ellison |
HIS HONOUR:
On 6 August 2005, in its Business section, The Age published a feature story comprising an extensive series of articles by a number of financial journalists on the subject of insider trading – the use of confidential company information by company officers to their own financial advantage. The articles carried the overall headline: “The Inside Story”.
One of the articles was entitled “The Cases”. It contained reports concerning a number of companies, noting the relationship between share price movements in those companies and trading in their shares. With reference to one of them, Fortescue Metals, under a heading “Timing is everything at Fortescue Metals” a graph showed the proximity of substantial share price movements and the acquisition and disposal of shares by two officers of the company, Andrew Forrest and Herbert Elliott. It described Mr Elliott as being “. . . of past Olympic running fame”. He was, at the relevant time, a director of Fortescue Metals.
On 16 August 2005, Mr Elliott filed a writ in this court against the publisher of The Age claiming damages, including aggravated and exemplary damages, for defamation in respect of the feature story.
In support of his claim that the story was defamatory of him the plaintiff pleaded eight imputations as arising from the articles, the thrust of which were that he profited in various ways from insider trading in the shares of Fortescue Metals. Particulars of the circumstances said to justify an award of aggravated and/or exemplary damages included the following:
“(d)the defendant published the Feature Story without making any inquiry of the plaintiff to ascertain the facts relating to the sale by him of shares in Fortescue Metals;”
By its defence the defendant has admitted publication but has denied that it defamed the plaintiff. It has taken no substantive defences and, in particular, it has not sought to justify publication of the feature story.
By this interlocutory application the defendant seeks a number of orders including discovery from the plaintiff of specific documents falling into eight described categories. It is said that they relate to “the facts” as alleged in the particular quoted above, that is to say that they relate to the question of whether the plaintiff did or did not engage in insider trading with respect to shares in Fortescue Metals. The defendant contends that by his pleading the plaintiff has raised the issue of the truth of the imputations he has alleged as arising from the publication upon which he sues.
Mr McClintock SC for the defendant submitted that although the defendant has not sought to justify its publication of the feature story so as to put its substantial truth specifically in issue the plaintiff’s own pleading has put the question of the circumstances in which he bought and sold shares in Fortescue Metals in issue. Thus, he says, the documents sought are discoverable.
Liability to discover documents depends upon their being relevant to a fact in issue in the proceeding. Mr Houghton QC, for the plaintiff, argued that unless the defendant seeks to justify the defamatory imputations alleged, they are presumed to be false and, accordingly, no issue as to their truth arises. He relied upon a statement to that effect in the current edition of Gatley.[1] Thus, argued Mr Houghton, although “the facts” are referred to in paragraph (d) of the particulars given in support of the plaintiff’s claim for aggravated or exemplary damages they are not in issue on the pleadings as they stand. He submitted that the only question raised by paragraph (d) of those particulars is whether the defendant made any inquiry to ascertain “the facts” from the plaintiff before publication.
[1]Gatley On Libel and Slander 10th Ed (2004) para 11.3.
Mr McClintock submitted that the statement in Gatley as to the presumption of falsity of a defamatory statement is a misstatement of the law and that truth is always in issue in a defamation action, if only on the question of damages. He relied upon a statement of Windeyer J in Australian Consolidated Press Ltd v Uren[2] to the effect that upon the trial of a defamation action a defendant could call evidence of the truth of a defamatory statement without having pleaded justification.
[2](1966) 117 CLR 185 at 205.
A close examination of Windeyer J’s statement of principle as to the issue of truth in a defamation proceeding does not bear out the defendant’s contention. His Honour’s statement was confined to a consideration of the law of New South Wales and those states which inherited it where justification of a libel required a defendant to plead and prove not only truth but also public benefit. His Honour’s judgment at p 204 makes this clear. Indeed he specifically stated:
“At common law, since truth is a complete defence, evidence of the truth of the defamatory matter cannot be given unless truth be pleaded in justification. For this reason it is generally said that, at common law, a plea of the general issue without a plea in justification admits that the matter complained of was false.”
McHugh JA (as he then was) in Singleton v French[3] dealt at length, with the same principle with copious reference to well accepted authority. Thus the common law position (as applied in Victoria) at the time relevant to this case is as stated in Gatley. That evidence of truth of a defamatory statement may have been admissible in New South Wales on the issue of damages without the defendant’s having placed a plea of justification on the record is not to the point. In this state, unless there is such a plea truth is not in issue.
[3](1986) 5 NSWLR 425 at 441 et seq.
The defendant also argued that even if truth is not in issue because it has not pleaded justification particular (d) given under paragraph 6 of the plaintiff’s statement of claim can only be relevant to the issue of aggravated or exemplary damages if the plaintiff can show that the failure of the defendant to ascertain the “facts” caused additional hurt to him and that such hurt could only have been suffered if the “facts” demonstrated that the allegedly defamatory publication was false. It relied upon a decision of Beach J in this Court, Glare v John Fairfax Publications Pty Ltd[4] where aggravated and/or exemplary damages were claimed on the basis, inter alia, that the defendant knew or ought to have known of the falsity of its publication. In that case his Honour held that the plaintiff had raised “. . . as an issue in the proceeding the objective truth of the statements of alleged fact”. His Honour quoted from Windeyer J’s judgment in Australian Consolidated Press Ltd v Uren but quoted only that passage which appears on p 205 without acknowledging Windeyer J’s statement as to the common law which appeared on p 204. By the application of that part of Windeyer J’s judgment, Beach J ordered discovery in respect of the issue of the objective truth of the defamatory matter sued upon.
[4][1999] VSC 390.
I respectfully disagree with Beach J’s analysis of Uren’s case. By relying upon Windeyer J’s statement of the law of New South Wales he has misstated the law of Victoria and has failed to give effect to the presumption running in the plaintiff’s favour that the defamatory statement is false unless and until the defendant pleads and proves otherwise. As McHugh JA said in Singleton, at common law, in the absence of a plea of justification, the plaintiff’s case goes to the jury on the issue of damages on the uncontradicted presumption that the published matter is false.[5]
[5](1986) 5 NSWLR at 443.
The defendant also relied upon Tabe v Amalgamated Television Services Pty Ltd[6] where a plaintiff had pleaded, in support of a claim for aggravated damages, that his hurt and injury had been increased by his knowledge that the relevant imputations were false. The Court (Samuels and Mahoney JJA and McLelland AJA) was of the opinion that, by reason of the plaintiff’s allegation, the issue of the truth of the imputations was raised so as to invoke the jurisdiction to order discovery. In that case it was accepted that the plaintiff’s allegation was that the imputations were false and that the plaintiff’s hurt and injury were increased by his knowledge of that fact. As Mahoney JA said, the fact that the imputations were false was seen by the plaintiff as part of his case for establishing aggravated damages.
[6]Unreported Court of Appeal NSW 7 December 1987 BC 8700881.
That is not this case. The essential allegation here is not that the imputations were untrue but that the defendant did not take an easily available step to determine whether they were true or not. Their truth or falsity is not thereby raised as an issue. Tabe does not assist the defendant here.
Gillard J in Bell v Kingsbay Pty Ltd[7] held that a particular which alleged that words were published with “reckless indifference to the truth or otherwise of the imputations (arising from them . . . )” did not raise the question of the truth of the imputations arising from defamatory statements. Although his Honour did not explain his conclusion it seems obvious that what he is saying is that the particular raises questions of reckless indifference not questions of objective truth. Thus, in so far as his Honour’s reasoning is relevant to this case, it supports the plaintiff’s submission. See also Redmond v Uebergang.[8]
[7][2001] VSC 388 particularly at [65] – [67].
[8](1984) 1 NSWLR 311 at 314 per Hunt J.
The defendant’s submission in this case, if accepted, would deprive the plaintiff of the presumption of falsity to which he is entitled without the defendant having to risk a plea of justification. It must be rejected. It follows that the defendant is not entitled to the discovery sought and that part of its summons must be dismissed. As the rest of the relief sought was either agreed to by the plaintiff or not pursued, unless there are any other outstanding matters the rest of the summons can be stood over generally. I shall hear counsel on any consequential matters which need consideration.
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