Gacic v John Fairfax Publications Pty Ltd

[2005] NSWSC 1210

CITATION:	Gacic v John Fairfax Publicatons Pty Limited [2005] NSWSC 1210
HEARING DATE(S):	22/11/2005
JUDGMENT DATE :	6 December 2005
JUDGMENT OF:	James J at 1
DECISION:	Applications allowed in part

CATCHWORDS:	CIVIL LAW – restaurant review – claim in defamation failed – application by defendants to strike out or dismiss claims in – negligence – contract – injurious falsehood – particulars of falsity – particulars of malice
LEGISLATION CITED:	Defamation Act Supreme Court Rules Trade Practices Act Uniform Civil Procedure Rules
CASES CITED:	Bass v TCN Channel Nine Pty Ltd (2002) 60 NSWLR 251 Bell-Booth Group Limited v Attorney-General [1989] 3 NZLR 148 El-Azzi v Nationwide News Pty Ltd [2004] NSWSC 1057 Griffith & Ors v Australian Broadcasting Corporation & Anor [2004] NSWSC 582 Harvey v John Fairfax Publications [2005] NSWCA 255 Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388 Ratcliffe v Evans [1892] 2 QB 524 Roberts v Bass (2002) 212 CLR 1 Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 South Pacific Manufacturing Co Limited v New Zealand Security Consultants & Investigations Limited [1992] 2 NZLR 282 Spring v Guardian Assurance Plc [1994] 3 WLR 354 Sullivan v Moody (2001) 207 CLR 562 Tame v New South Wales (2002) 211 CLR 317
PARTIES:	Aleksandra GACIC & Ors v John Fairfax Publications Pty Limited & Anor
FILE NUMBER(S):	SC 20233/04
COUNSEL:	CA Evatt/MK Rollinson - Plaintiffs DR Sibtain - Defendants
SOLICITORS:	David Leamey - Plaintiffs Freehills - Defendants

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Progressive List

JAMES J

Tuesday 6 December 2005

020233/04 GACIC & Ors v JOHN FAIRFAX PUBLICATIONS PTY LTD & Anor

JUDGMENT

1 HIS HONOUR: These are applications brought by the defendants in proceedings by the plaintiffs Aleksandra Gacic, Ljiljana Gacic and Branislav Ciric against the defendants John Fairfax Publications Pty Ltd and Matthew Evans. Before describing the nature of the applications, I will outline some of the matters and events giving rise to the proceedings and the history of the proceedings so far.

2 The plaintiffs were the proprietors of two restaurants at King Street Wharf in the city of Sydney, which were known respectively as “Coco” and “Roco”. The two restaurants opened on 4 September 2003.

3 On 5 September 2003 and again on 10 September 2003 the second defendant attended the Coco restaurant and ordered and ate a meal there. On 30 September 2003 the first defendant published in the Good Living magazine which formed part of the Sydney Morning Herald newspaper for that day an article about “Coco Roco” which had been written by the second defendant (“the article”). The article was severely critical of the restaurants. For example, in the article the second defendant gave “Coco Roco” a score of 9 out of 20, which, according to a scoresheet in the margin of the article, fell within the “stay home” range of scores for restaurants.

4 These proceedings were commenced by the filing of a statement of claim on 25 June 2004. The causes of action pleaded in the original statement of claim were defamation and injurious falsehood. After the defendants were served with the original statement of claim, they filed a notice pursuant to Pt 67 r 12A of the Supreme Court Rules. On 26 October 2004 Nicholas J made a number of rulings about parts of the original statement of claim and gave the plaintiffs liberty to file an amended statement of claim. On 8 November 2004 an amended statement of claim was filed, in which some amendments were made to the imputations alleged in the claim for defamation and to the particulars of falsity and the particulars of malice in the claim for injurious falsehood.

5 A trial pursuant to s7A of the Defamation Act was held before Bell J and a jury on 1 and 2 June 2005. At the trial the jury was asked to determine whether the article conveyed in relation to each of the three plaintiffs imputations (a) that the particular plaintiff sold unpalatable food at Coco Roco (b) that the particular plaintiff charged excessive prices at Coco Roco (c) that the particular plaintiff provided some bad service at Coco Roco and (d) that the particular plaintiff was incompetent as a restaurant owner because he or she employed a chef at Coco Roco who made poor quality food; and, as to any imputation which was conveyed, whether the imputation was defamatory. In the case of each plaintiff the jury found that imputations (b) and (d) were not conveyed and that, although imputations (a) and (c) were conveyed, they were not defamatory. Accordingly, each plaintiff’s claim in defamation failed completely.

6 On 14 June 2005 the proceedings again came before Nicholas J, who directed that any further amended statement of claim be filed by 12 July 2005.

7 On 4 July 2005 a further amended statement of claim was filed. In the further amended statement of claim the claims for defamation and injurious falsehood were retained. In a new paragraph 5A a claim in negligence was added and in a new paragraph 5B a claim for breach of contract was added.

8 On 12 August 2005 a written outline of arguments which the defendants wished to advance concerning the further amended statement of claim was sent to Nicholas J. In accordance with the usual practice in the Defamation List, no notice of motion was filed by the defendants.

9 On 15 August 2005 Nicholas J, after hearing some argument but without stating any conclusion, stood over the defendants’ applications to the list of the Common Law list judge and on 18 August 2005 the Common Law list judge fixed the applications for hearing on 22 November 2005. On 22 November 2005 the application came before me for hearing.

10 An appeal to the Court of Appeal has been brought against the verdicts of the jury at the s7A trial and that appeal has been listed for hearing on 31 March 2006.

11 Although no notice of motion has been filed, it is apparent from the defendants’ outline of argument of 12 August 2005 and it was confirmed by counsel for the defendants in oral submissions before me, that the applications made by the defendants can be summarised as being that the claim for injurious falsehood in the further amended statement of claim should be struck out on the grounds that all the particulars of falsity and all the particulars of malice are defective or that at least some of those particulars should be struck out as being defective; and that the claims in negligence and in contract should be struck out on the grounds that the pleading of each of those claims is defective and, more fundamentally, that the claims in negligence and in contract should be dismissed on the grounds that no cause of action in either negligence or contract is available to the plaintiffs.

12 The defendants’ applications must be regarded as having already been commenced when they came before Nicholas J on 15 August 2005. As already stated, the applications came on for hearing before me on 22 November 2005. While neither counsel suggested that it would make any practical difference in dealing with any of the defendants’ applications, whether I applied the Supreme Court Rules or the Uniform Civil Procedure Rules, it was common ground at the hearing on 22 November that, in dealing with the application concerning the claim for injurious falsehood, I should apply Pt 67 r 12A of the Supreme Court Rules and that, in dealing with the applications concerning the claims in negligence and contract, I should apply Pt 13 r 4(1)(b) of the Uniform Civil Procedure Rules.

APPLICATION TO STRIKE OUT OR DISMISS CLAIMS IN NEGLIGENCE AND CONTRACT

13 It is convenient to deal first with the applications that I should strike out or dismiss the claims in negligence and contract. If I consider that the claims should be dismissed on the grounds that no cause of action in either negligence or contract is available to the plaintiffs, it will be unnecessary to consider whether there are any defects in the pleading of those claims.

14 In order to determine these applications, it is necessary to refer more fully than I have so far to the further amended statement of claim.

15 In paragraph 1 of the further amended statement of claim it is alleged that the first defendant was the publisher of the Sydney Morning Herald. In paragraph 2 it is alleged that the defendants wrote and published of and concerning the plaintiffs the article, a copy of which is annexed to the further amended statement of claim.

16 In paragraph 4 of the further amended statement of claim it is alleged that the article contained the imputations defamatory of the plaintiffs which were considered by the jury at the s7A hearing, namely that each of the three plaintiffs sold unpalatable food at Coco Roco, charged excessive prices at Coco Roco, provided some bad service at Coco Roco and was incompetent as a restaurant owner by reason of employing a chef at Coco Roco who made poor quality food.

17 In paragraph 5 of the further amended statement of claim it is alleged that the defendants wrote and published the article falsely and maliciously, that is to say that the defendants committed the tort of injurious falsehood in writing and publishing the article.

18 Paragraph 5A of the further amended statement of claim pleads a cause of action in negligence and is in the following terms:-

“5A. Further and in the alternative to paragraph 4 the plaintiffs say that the publication by the defendants referred to above and the damage flowing therefrom, including actual damage, was caused by the negligence and breach of duty of the defendants”.

19 Paragraph 5B of the further amended statement of claim pleads a cause of action in contract and is in the following terms:-

“5B. Further and in the alternative to paragraph 4 in consideration of the plaintiffs permitting the second defendant to inspect and dine at the Coco Roco Restaurants at their request, it was agreed that the defendants would publish a review of same and it was a term of the said agreement that the defendants would exercise proper and reasonable care in inspecting the said premises of Coco Roco and in writing and publishing the review and it was a further term of the said agreement the defendants would take proper and reasonable care to be factually accurate yet in breach of the said agreement the defendants did not take proper and reasonable care in the inspection of the said premises and in writing and publishing the review and did not take proper and reasonable care in ascertaining that the review was factually accurate whereupon the plaintiffs suffered loss, injury and damage”.

20 In paragraphs 6 and 6A of the further amended statement of claim the plaintiffs claim that they have been injured in their character, credit, reputation, trade and profession and have been brought into public hatred, ridicule and contempt and that they have suffered great pain of body and mind, including anxiety, worry, nerves and upset.

21 In further paragraphs of the further amended statement of claim the plaintiffs, without furnishing any particulars, claim general damages, special damages, aggravated damages and exemplary damages.

22 There are then set out in the further amended statement of claim particulars of publication, particulars of falsity, particulars of malice, particulars of negligence and particulars of breach of contract.

23 In a number of the particulars of falsity it is alleged that the second defendant, who went to the Coco restaurant only, applied his criticisms to both the Coco restaurant and the Roco restaurant.

24 The particulars of negligence supplied in the further amended statement of claim are in the following terms:-

“The defendants owed a duty to the plaintiffs:-
(a) To take reasonable care to ensure that the facts set out in the article complained of were accurate.
(b) To make reasonable and adequate enquiries as to:-
(i) the ownership of the business operating the restaurant ‘Coco’ and the restaurant ‘Roco’.
(ii) the arrangements regarding kitchens for each of those two restaurants.
(iii) the identity of the chef for each of those two restaurants.
(iv) the nature and quality of the food served in each.
(v) the quality of the service provided in each.
(vi) the prices charged in each.
(c) To take reasonable care that the restaurant being reviewed is correctly named and identified.
(d) To take care that the name of another and separate restaurant was not included in a critical review of an associated restaurant.
(e) Not to mislead readers including prospective restaurant patrons as to the correct name, title, identity, facilities and quality of the restaurant whose food and services are reviewed.
“The defendants acted negligently and in breach of the above said duties because they did not take reasonable care to ensure that the facts set out in the article complained of were accurate; they did not make reasonable or adequate enquiries as to the matters set out in paragraph (b) above; they did not take reasonable care that the restaurant being reviewed was correctly named and identified; they did not take care that the name of another and separate restaurant was not included in a critical review of an associated restaurant and they misled readers including prospective restaurant patrons as to the correct name, title and identity of the restaurant whose food and services were reviewed. The plaintiffs further rely on the particulars of falsity and malice set out above”.

25 The particulars of breach of contract supplied in the further amended statement of claim are in the following terms:-

“The defendants reviewed the Coco restaurant at the request of the plaintiffs through and by their general manager and Leisa Lindsay and through and by the second plaintiff and the duties referred to above in the particulars of negligence were implied terms of the agreement to the effect that the defendants would visit, inspect and eat at the Coco restaurant and review same. The particulars of breach of the said contract and agreement are set out in the particulars of negligence, falsity and malice above.”

26 In support of the applications it was submitted by counsel for the defendants that, leaving aside any pleading defects, it was apparent from the further amended statement of claim that the gist of the plaintiffs’ complaints was that the plaintiffs’ reputations had been damaged and their feelings had been injured by the publication by the defendants to third persons of words about the plaintiffs’ restaurant and that the damage which the plaintiffs claimed to have suffered by reason of the alleged negligence and the alleged breach of contract was the same as the damage which the plaintiffs claimed to have suffered by reason of the publication of the defamatory imputations or by reason of the commission of the tort of injurious falsehood. It was submitted that, in these circumstances, no action for negligence or breach of contract was available. Counsel for the defendants referred to Sullivan v Moody (2001) 207 CLR 562; Tame v New South Wales (2002) 211 CLR 317 and Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 (Levine J).

27 In oral argument counsel for the plaintiffs conceded, on the basis of the authorities referred to by counsel for the defendants, that, if there had been a subsisting claim for damages for defamation, no claim in negligence or for breach of contract would have been available but submitted that, because the jury at the s7A hearing had found that no defamatory imputation had been conveyed about any of the plaintiffs and all the claims in defamation, notwithstanding the pending appeal to the Court of Appeal, had to be regarded as having failed, the plaintiffs were now at liberty to bring claims in negligence and for breach of contract.

28 Counsel for the defendants submitted that it made no difference that the claims in defamation had failed and referred to Griffith & Ors v Australian Broadcasting Corporation & Anor [2004] NSWSC 582 (Cripps AJ).

29 In my opinion, the submissions of counsel for the defendants should be accepted.

30 In Sullivan v Moody the fathers of children who had been examined for evidence of sexual abuse by medical practitioners and social workers employed by a department of the South Australian Government sued the State of South Australia, the medical practitioners and the social workers for damages for negligence in the conduct of the examinations of the children which had resulted in reports that the children had been sexually abused. The plaintiffs alleged that, as a result of the defendants’ negligence in examination, diagnosis and reporting, they had suffered emotional harm, psychiatric injury and consequential loss. Each action was struck out by the judicial officer of first instance as not disclosing a cause of action and appeals to the Full Court of the Supreme Court of South Australia and to the High Court were dismissed.

31 At 580-581 (53-55) the court, which was constituted by Gleeson CJ, Gaudron J, McHugh J, Hayne and Callinan JJ, said:-

“[53] Developments in the law of negligence over the last thirty or more years reveal the difficulty of identifying unifying principles that would allow ready solution of novel problems. Nonetheless, that does not mean that novel cases are to be decided by reference only to some intuitive sense of what is ‘fair’ or ‘unfair’. There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted.

[54] The present cases can be seen as focusing as much upon the communication of information by the respondents to the appellants and to third parties as upon the competence with which examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.

[55] More fundamentally, however, these cases present a question about coherence of the law…..”

32 These remarks by the High Court in Sullivan v Moody were referred to by a number of judges in the later High Court decision of Tame v New South Wales. In Tame a police officer in preparing a report of a motor vehicle accident in which the plaintiff had been involved mistakenly recorded that the plaintiff had had a blood alcohol level of 0.14, whereas in fact the plaintiff had had a nil blood alcohol level. The plaintiff had become obsessed about the mistake in the report and had developed a psychiatric disorder. The High Court held that the police officer had not owed a duty to the plaintiff to take reasonable care to avoid psychiatric injury to her.

33 At 335 (28) Gleeson CJ said:-

“Furthermore, as in Sullivan v Moody , this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation, and the same need to preserve legal coherence….”

34 At 343 (58) Gaudron J said:-

“The second matter which indicates that Acting Sergeant Beardsley did not owe a duty of care to Mrs Tame is the fact that the direct cause of her psychiatric illness was not the inaccurate recording of her blood alcohol level, but its communication to others. Thus, in this case as in Sullivan v Moody , ‘there is an intersection with the law of defamation which resolves the competing interests of the parties through well-developed principles about privilege and the like’. And as in Sullivan v Moody , ‘[t]o apply the law of negligence in the present case would resolve that competition on an altogether different basis’. At the very least, the law of negligence with respect to psychiatric injury ought not be extended in a disconformity with other areas of the law”.

35 At 361 (123) McHugh J said:-

“In determining whether Acting Sergeant Beardsley owed a duty of care to Mrs Tame, it is proper to take into account — quite apart from the issue of reasonable foreseeability — that the law of defamation appears a more appropriate medium for dealing with the facts of her case than the law of negligently inflicted nervous shock. Her action arises out of a communication to a third party, her concern is with her reputation and the law of defamation has various defences that reconcile the competing interests of the parties more appropriately than the law of negligence. This Court has already taken the view that, independently of policy issues relevant to the interests of the parties and persons like them, the need for the law to be coherent is a relevant factor in determining whether a duty exists. In Sullivan v Moody … , the Court said that coherence in the law was a relevant factor in determining whether a duty of care existed. In Sullivan , the Court held that officers of the Department of Community Welfare owed no duty of care to a person affected by a communication made as the result of investigating, under a statutory power, a sexual assault allegation”.

36 At 418 (298) Hayne J referred to Sullivan v Moody.

37 At 425 (323) Callinan J said:-

“Whilst it may be accepted that a plaintiff is entitled to avail herself of whatever remedies are available to her, it is important that a decision and the reasoning leading to it, in an unusual case, which this one is, be in harmony with, so far as is possible, available related causes of action, and the common law as a whole or, as it was put by this Court in Sullivan v Moody …., that they not offend the ‘coherence of the law’. The facts of this case might conceivably have given rise to actions in negligent misstatement (if that action is not confined to claims for economic loss) and defamation. That these causes of action may also be available on the facts of the case, and would then be governed by special rules affected by policy considerations, is relevant to the question whether the appellant should recover damages for ‘nervous shock’ .on the basis of those facts…”

38 At 426 (325) Callinan J said:-

“Many controls and special defences, both statutory and at common law, ordinarily operate to restrict claims in defamation; for example, defences of qualified and absolute privilege, and the need for a plaintiff to prove absence of good faith on the part of the defendant” .

39 In Sattin v Nationwide News Pty Limited the defendant newspaper had published a photograph of the plaintiff Janette Sattin and a male person, with the caption that the plaintiff and the male person were newly wed, whereas the plaintiff was married to another person and had never been married to the male person shown in the photograph. Levine J, after considering the judgments of the Law Lords in Spring v Guardian Assurance Plc [1994] 3 WLR 354 and the decisions of the New Zealand Court of Appeal in Bell-Booth Group Limited v Attorney-General [1989] 3 NZLR 148 and South Pacific Manufacturing Co Limited v New Zealand Security Consultants & Investigations Limited [1992] 2 NZLR 282, refused an application by the plaintiff to amend her statement of claim by adding a cause of action in negligence. At pp 44-45 Levine J said:-

“I would add conformably with what their Honours in New Zealand’s Court of Appeal and his Lordship Lord Keith of Kinkel (in Spring v Guardian Assurance Plc ) have remarked upon, that the law of negligence really has a limited role to play in the matter of communications, it fundamentally being confined to the Hedley Byrne situation ( Hedley Byrne & Co v Heller & Partners [1964] AC 465) or perhaps others in which freedom of speech is not a legitimate consideration. In media situations the lawfulness or otherwise of communication to the public depends on the operation of the laws and rules of defamation:”

40 In the present case I consider that the core of the plaintiffs’ complaints is that they were injured in their reputation and feelings by what was communicated about their restaurant by the defendants to third persons, that any claim in negligence (or breach of contract) would intersect with the law of defamation with its well established principles for striking a balance between freedom of expression and injury to reputation and feelings and that to permit the plaintiffs to rely on a cause of action in negligence (or breach of contract) would be to destroy, and not preserve, coherency in the law.

41 As I have previously noted, counsel for the plaintiffs sought to distinguish what was said in Sullivan v Moody and Tame v New South Wales and what was said and held in Sattin v Nationwide News Pty Ltd, on the basis that, in the present case, the cause of action in defamation had, subject to the appeal to the Court of Appeal, failed, whereas in Sattin the claim in defamation was still subsisting and Levine J had observed in his judgment that there was no defence to the claim in defamation, such as qualified privilege, comment or justification.

42 However, it seems to me, as a matter of principle, that, if the gist or core of a plaintiff’s complaint is that the plaintiff has suffered injury to his or her reputation and injury to his or her feelings by reason of what the defendant communicated or published about the plaintiff to third persons, the plaintiff’s remedy, if any, lies in defamation (or injurious falsehood) and not in negligence or breach of contract and it makes no difference, if by reason of the operation of any of the controls or defences which apply to claims in defamation, no claim in defamation could have been brought or a claim in defamation which was brought has failed. To hold otherwise would be to destroy, and not to preserve, coherency in the law and the balances which have been struck in the law of defamation between damage to reputation and freedom of expression.

43 As I have already noted, counsel for the defendants referred the Court to Griffith v Australian Broadcasting Corporation. In Griffith three of a number of plaintiffs, all of whom had brought proceedings in defamation, had also brought claims for the tort of deceit. At a s7A trial the jury found that one defamatory imputation had been conveyed about the first plaintiff Mr Griffith, that no defamatory imputation had been conveyed about the second plaintiff Foundation for Humanity’s Adulthood (FHA), two defamatory imputations had been conveyed about the third plaintiff Mr Macartney-Snape and no defamatory imputations had been conveyed about the other six plaintiffs. The defendants had pleaded justification, qualified privilege both common law and statutory, and comment.

44 In paragraph 16 of his judgment Cripps AJ summarised the defendant’s submission (which his Honour ultimately upheld) as being:-

“The essence of the defendants' submission is that the three plaintiffs are claiming (or in the case of the second plaintiff had claimed) damages for injury to reputation by reason of the publication of the defamatory matter and (in the case of the first and third plaintiffs) for hurt feelings and that such claims are properly and exclusively in the domain of defamation law”.

45 In his judgment Cripps AJ discussed Sattin, Bell-Booth Group v Attorney-General, Sullivan v Moody and Tame v New South Wales.

46 In part of paragraph 27 of his judgment Cripps AJ said:-

“…The case FHA brought against the defendants in defamation was unsuccessful. If FHA is allowed to proceed in deceit it will, on the argument advanced by the plaintiffs, be entitled to damages, because there will have been no defence of justification, privilege or comment found in favour of the defendants. In my opinion, if the damages claimed are for reputational harm and distress consequent upon publication of defamatory material a claim in deceit is foreclosed, whether or not there is a concurrent claim in defamation” .

47 At paragraphs 29 and 30 of his judgment Cripps AJ rejected a submission that it had been material to Levine J’s decision in Sattin that the matter published in Sattin had undoubtedly been untrue and that there had been no prospect of a successful defence of privilege, comment or justification. In rejecting this submission Cripps AJ referred, as Levine J had in his judgment in Sattin, to an observation made by Cook P in Bell-Booth that:-

“The law as to injury to reputation and freedom of speech is a field of its own. To impose the law of negligence upon it by accepting that there may be common law duties of care not to publish the truth would be to introduce a distorting element”.

48 At paragraph 32 of his judgment Cripps JA rejected a submission that claims in deceit should not be viewed in the same way as claims in negligence.

49 I have concluded that in the present case the core or gist of the complaints made by the plaintiffs against the defendants lies in the publication by the defendants of words about the plaintiffs to third persons and that the damage which the plaintiffs claim they have suffered consists of damage to the plaintiffs’ reputations and injury to their feelings. In these circumstances, the plaintiffs’ remedies, if any, are in defamation and injurious falsehood and the plaintiffs cannot seek to rely on the tort of negligence or a claim in contract of the type propounded by the plaintiffs. These conclusions are not affected by the circumstance that the plaintiffs’ claims in defamation must, at least at the present, be regarded as having failed. I order that paragraphs 5A and 5B of the further amended statement of claim and the particulars of negligence and the particulars of breach of contract be struck out and that the proceedings in negligence and in contract be dismissed.

APPLICATION TO STRIKE OUT CLAIM IN INJURIOUS FALSEHOOD

50 I turn now to the application that the claim for injurious falsehood in the further amended statement of claim should be struck out on the grounds that all the particulars of falsity and all the particulars of malice are defective or that at least some of those particulars should be struck out as being defective. I will deal first with the part of the application which relates to the particulars of falsity.

Particulars of Falsity

51 In the further amended statement of claim the particulars of falsity are set out in nine paragraphs numbered (i) to (ix) but principally in paragraph (vii), which contains no fewer than thirty sub-paragraphs identified as sub-paragraphs (a) to (ad).

52 At the hearing counsel for the plaintiffs abandoned a large number of the particulars of falsity set out in the further amended statement of claim. The particulars of falsity which counsel continued to press are particulars (i) to (vi), some sub-paragraphs of paragraph (vii) being sub-paragraphs (c), (h), (k), (n), (v), (w), (y), (aa), (ac), and (ad) and paragraph (viii). These particulars are in the following terms:-

“(i) Coco Roco comprised two separate restaurants. The Coco restaurant is upstairs and the Roco restaurant downstairs. There are two separate kitchens both of which were open to the dining areas. Each of the two restaurants had its own chef. Adam Birtles was the chef for the Roco restaurant. The chef who prepared and made the meals for Coco restaurant was David Buchanan. The Coco and Roco restaurants had separate menus, separate prices and separate staff.
(ii) The Coco Roco restaurants were officially opened on 4 September 2003. The second defendant (Matthew Evans) came to the Coco Roco restaurants on 5 September 2003 and had lunch at the Coco restaurant. He came again on 10 September and had dinner in the Coco restaurant.
(iii) The chef who prepared the meals at Coco which were provided to and consumed by the second defendant on 5 and 10 September 2003 was David Buchanan.
(iv) The staff who served the second defendant while dining at Coco restaurant on 5 and 10 September 2003 were different from the staff who served at the Roco restaurant.
(v) The second defendant did not dine or consume food at the Roco restaurant and did not experience the service at that restaurant.
(vi) The statements by the second defendant in the matter complained of referring to Coco Roco such as ‘Matthew Evans fails Coco Roco’, ‘Coco Roco, city 9/20, ‘more than half the dishes I’ve tried at Coco Roco are simply unpalatable’, ‘Coco Roco is a bleak spot on the culinary landscape’, and other similar references to Coco Roco including reference to the service and the value are false because they refer to the two restaurants (Coco and Roco) combined when the second defendant’s statements in the review complained of were relevant only to the restaurant in which he dined (Coco).
(vii) Other statements by the second defendant set out in the matter complained of were also false. Such statements were:-
(c) ‘the black reflector tiles in the bathroom make me feel I should be wearing a pink shirt and a thin leather tie’. These statements are false. The tiles were predominantly ceramic with a high gloss finish. The inference that the bathroom was for homosexuals is also false.
(h) ‘The limoncello (had) flavours… all at once it’s sickly sweet, overtly alcoholic, slippery, salty and bitter’. These statements are untrue because … it was not at once sickly sweet, overtly alcoholic, slippery, salty and bitter.
(k) ‘I scraped the whole wretched garnish to one side’. This statement is false as Mr Evans consumed the garnish completely and left his plate clean.
(n) ‘In the interests of impartiality’. This statement is false because Mr Evans (the reviewer) was not impartial.
(v) ‘(The menu) is flawed in concept and execution’. This statement is false because the menu was not flawed in concept and execution.
(w) ‘Coco Roco is a bleak spot on the culinary landscape’. This statement is false because Coco Roco was not a bleak spot on the culinary landscape.
(y) ‘The service – good and bad’. This statement is false because the service was not bad.
(aa) ‘The value – a shocker’. This statement if false because the value was not a shocker and was good value.
(ac) ‘When dining on the view is the only recommendation’. This statement is false because dining on the view was not the only recommendation.
(ad) ‘Coco Roco – 9/20 – stay at home 0/9’. This statement is untrue as Coco Roco did not warrant the stay at home appraisal.
(viii) The unflattering and critical statements concerning the food, service, décor, kitchen and prices referred to in paragraph (vii)(a)-(ad) above were false in respect of the Roco restaurant. As stated in (v) above the second defendant had not dined at the Roco restaurant and did not experience its food, service, décor and prices. It was false to state or imply in the matter complained of that the two separate restaurants were combined under the name Coco Roco as if they were one.”

53 It was submitted by counsel for the defendants, as is clearly the case, that paragraphs (i) to (v) are not in themselves particulars of falsity but particulars of what the plaintiffs assert are matters of truth. Although not in themselves particulars of falsity, it was not suggested by counsel for the defendants that any of particulars (i) to (v) should be struck out.

54 As to paragraph (vi), it was submitted that, apart from criticisms of the individual sub-paragraphs of paragraph (vii) which are referred to in paragraph (vi), paragraph (vi) was defective, because not all of the statements referring to Coco Roco of which the plaintiffs complained were precisely identified. Counsel referred to the use in paragraph (vi) of the expressions “such as” and “other similar references”.

55 Two principal submissions were made by counsel for the defendants about the sub-paragraphs of paragraph (vii) which are still pressed. These submissions were:-

56 1. As the elements of a cause of action in injurious falsehood include the publication by the defendant to a third person of a false statement of and concerning the plaintiffs’ goods or business (for this proposition counsel cited Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388 at 404 (52) per Gummow J), it is necessary for a plaintiff pleading a cause of action in injurious falsehood to identify each statement which it is alleged is false and such a statement cannot be identified in the plaintiff’s pleading by directly quoting a part of the matter published but must be identified in the pleading by distilling from the actual words published by the defendant a statement which contains the real sting or charge of which the plaintiff complains.

57 Counsel for the defendants did not cite any authority in support of this submission about how a claim in injurious falsehood should be pleaded and informed me that there is no authority on the subject.

58 Counsel for the defendants referred to the principles which have governed pleading in defamation in this State, which require that the plaintiff plead the imputations which he alleges were conveyed by the matter complained of, and submitted that similar principles should apply to pleading in injurious falsehood. As to pleading in defamation, counsel referred to the judgment of Hunt AJA in Harvey v John Fairfax Publications [2005] NSWCA 255 especially at paragraphs 118 to 132.

59 Counsel for the defendants also referred to the manner in which claims under s52 and s53 of the Trade Practices Act are commonly pleaded, as affording some kind of analogy.

60 2. The other principal submission made by counsel for the defendants was that, even if the particulars of falsity were not liable to be struck out on the grounds that they were improperly pleaded, they should be struck out on the ground that a statement cannot be the subject of a claim for injurious falsehood unless it is capable of being true or false and that many of the statements on which the plaintiffs continued to rely were merely expressions of opinion by the second defendant which were not capable of being true or false.

61 I will now consider counsel for the defendants’ principal submissions.

62 1. I do not consider that counsel for the defendants’ submissions about the way in which the statements the plaintiff complains of in a claim for injurious falsehood should be pleaded, should be upheld.

63 The claim by the plaintiffs is a claim in injurious falsehood and not in defamation and is not subject to Pt 67 of the Supreme Court Rules.

64 Although I was not referred to any authority on the way in which a claim in injurious falsehood should be pleaded, judicial formulations of the elements of the tort of injurious falsehood usually include as an element of the tort that the defendant should have published a “statement” about the plaintiff. See for example, Ratcliffe v Evans [1892] 2 QB 524 at 527 per Bowen LJ and Palmer Bruyn & Parker v Parsons at 404 (52) per Gummow J. The word “statement” is a different word from “imputation” or “representation” (the word used in s53 of the Trade Practices Act) and, in my opinion, the word “statement” is more apt to refer directly to what was actually said by a defendant rather than to anything which might be distilled from what was said by the defendant.

65 I accept that it might be possible to bring a claim in injurious falsehood, where the “statement” relied on was not express but should be implied or inferred from what was said. However, when what the plaintiff complains of is what was expressly said, I consider that it is permissible for the plaintiff to plead those express words as constituting the statement of which he complains. By pleading the express words the plaintiff clearly identifies the statement of which he complains.

66 2. As to the second submission made by counsel for the defendants I accept that a statement can be the subject of a claim for injurious falsehood, only if it is capable of being true or false and I accept that many of the matters particularised by the plaintiffs in paragraph (vii) on which the plaintiffs continue to rely contain, at least to some extent, are expressions of opinion by the second defendant. However, I have concluded that, except in the case of part of sub-paragraph (c), I should not hold that the statements are incapable of being true or false or incapable of being shown to be true or false. The part of sub-paragraph (c) which pleads that the tiles in the bathroom “make me feel I should be wearing a pink shirt and a thin leather tie” seems to me to be, both in content and in language, so much an expression by the second defendant of his personal opinion as to be incapable of being true or false (provided that the opinion was actually formed by the second defendant) and I strike out this part of sub-paragraph (c) of paragraph (vii) and the alleged inference that the bathroom was for homosexuals.

67 Although the words pleaded in sub-paragraph (n) do not form a grammatically complete sentence, they are equivalent to an assertion by the second defendant that he was being impartial.

68 As to each of paragraphs (vi) and (viii), I consider that I should strike out the paragraph in its present form, on the grounds that the statements now relied on by the plaintiffs are not clearly identified but I give the plaintiffs leave to file amended particulars.

Particulars of Malice

69 I turn now to the application that the claim for injurious falsehood in the further amended statement of claim should be struck out on the grounds that the particulars of malice are defective or that some at least of those particulars should be struck out as being defective.

70 Part 15 r 1 of the Uniform Civil Procedure Rules provides that a pleading must give such particulars of any claim as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet. Part 15 r 4 provides that a pleading that alleges any condition of mind must give particulars of the facts on which the party pleading relies. “Condition of mind” is defined as including malice.

71 As the claim for injurious falsehood is not a proceeding in defamation, Pt 67 of the Supreme Court Rules has no application to the pleading of the claim for injurious falsehood.

72 In the further amended statement of claim particulars of malice were set out in twenty numbered paragraphs as follows:-

“(i) The plaintiffs hired and employed Chris Mebberson as the general manager of the Coco Roco restaurants. He is and was as fried of the second defendant and on behalf of the plaintiffs he invited the second defendant to review the Coco Roco restaurants.
(ii) Leisa Lindsay was employed by the plaintiffs as front office manager for the Coco Roco restaurants and her close associate Richard Latham was a friend and associate of the second defendant.
(iii) Both Chris Mebberson and Leisa Lindsay were dismissed for alleged dishonesty by the plaintiffs on 1 September 2003.
(iv) Upon and after the dismissal of Mr Mebberson he said he would make sure that Mr Evans gave a bad review and said words to the effect ‘I will ensure that Matthew Evans and the Sydney Morning Herald destroy this restaurant’.
(v) Upon her dismissal Leisa Lindsay said, words to the effect ‘I am going to call Richard (Latham) and he will destroy Coco Roco through Matthew Evans who will give a very bad review’.
(vi) When the second defendant dined at the Coco restaurant and subsequently when he published his review being the matter complained of he was biased and prejudiced against Coco Roco and their owners by reason of the dismissal of Chris Mebberson and Leisa Lindsay.
(vii) The second defendant dined at the Coco restaurant on 5 and 10 September 2003. The second defendant acted maliciously and/or with reckless and irresponsible carelessness in expanding his criticisms of the food, service, prices and décor of the Coco restaurant to include the Roco restaurant as well. Such malice and recklessness was aggravated by the fact that the second defendant had never dined at the Roco restaurant and had not experienced its service or been subject to its prices. The second defendant knew that the prices were less expensive at the Roco restaurant but notwithstanding he included in his attack the princes of the Roco restaurant which he said were excessive, too high and not good value.
(viii) The second defendant wrongfully failed to make proper enquiries as to the running, service, food, prices and décor of the Roco restaurant.
(ix) Prior to the publication of the matter complained of in the Good Living magazine of 30 September 2003 various employees, servants and agents of the first defendant including journalists and editorial staff, visited the Coco Roco restaurants where they dined and consumed wine gratis. They were invited to visit the restaurants. They saw that there were two open kitchens and they were informed by the second and third plaintiffs and by the plaintiffs’ public relations staff that there was a chef for each of the two kitchens and each restaurant had separate staff, separate menus and separate prices. They observed the two kitchens, separate staff, menus and separate prices when they dined in both the upstairs and downstairs restaurants. They expressed the opinions that the food and service was good.
The employees, servants and agents included Bernoth Ardyn, Scott Boyle, Kirsten Galliott, Susan Skelly, Harris Carentha, William Petley, Holly Byrnes, Lisa Breen and Brooke Turner.
At the time of publication the first defendant through and by its servants and agents above referred to knew the imputations to be false in their application to the Coco and Roco restaurants.
(x) The second defendant knew or should have known had he made even perfunctory enquiries and observations that each restaurant had different staff, a different chef and a different kitchen.
(xi) Wrongful failure to apologise and retract for the publication of the defamatory imputations made against the Coco and Roco restaurants.
(xii) The second defendant acted unfairly and with hostility towards the plaintiffs because when he attended and dined at the Coco restaurant on 5 September 2003 he knew the restaurants had only been officially opened the day before. He wrote in his review that he came back a few days later in the interest of impartiality but by coming back so soon (five days later) he acted unfairly and with malice since he gave the Coco restaurant inadequate time to settle in and improve if indeed the food and service required improvement.
(xiii) The defendant knew that the restaurants had been fitted out at a cost of $3 million and had only just opened. Had he not been biased and prejudiced towards the plaintiffs and their restaurants he would have waited a longer time to give them the opportunity of carrying out any necessary improvements.
(xiv) The defendants had an improper motive being an intent to injure the plaintiffs as evidence by the large and widespread publication of the material complained of; sensational manner of presentation; sensational manner of setting out and phrasing together with headlines and colour photographs.
(xv) The matter complained of is intrinsically malicious.
(xvi) The plaintiffs rely on the publication of the false statements and matters which are set out in the particulars of falsity above.
(xvii) The second defendant knew that the plaintiffs as owners of the Coco Roco restaurants were newcomers as restaurateurs. His review was too harsh and uncompromising. The second defendant knew that such a harsh and uncompromising review would have drastic consequences on both the Coco and Roco restaurants thereby adversely affecting a $3m investment and leading to probable closure. The second defendant should have refrained from reviewing the restaurants at that stage. He should have deferred a review until the next year at the earliest.
(xviii) The first defendant acted maliciously and unfairly by not publishing any of the many letters written to ‘The Sydney Morning Herald’ from patrons who had dined at the Coco Roco restaurants and disputed and/or contradicted the statements made by the second defendant in the material complained of.
(xix) When the second defendant dined at the Coco restaurant he did so with a companion and the two of them were charged $185.10 on the first occasion and $173 on the second occasion. Bearing in mind the number of items ordered from the menus the second defendant knew that the prices were reasonable and were not big end of town prices. The second defendant knew that the prices were moderate as compared to many Sydney Restaurants and were neither excessive nor shocking.
(xx) Describing or implying in the matter complained of that the two separate restaurants (Coco and Roco) were combined as if one with the one kitchen, the same food, the same service and staff and the same décor”.

73 Counsel for the defendants submitted that the particulars of malice supplied in the further amended statement of claim were defective. A general submission was made about the particulars and specific submissions were made about some of the individual particulars.

74 The general submission made was that in pleading a cause of action for the tort of injurious falsehood, an element of which is that the defendant in publishing the matter complained of acted maliciously, it is necessary for the plaintiff to specify what the plaintiff alleges was the defendants’ improper motive or purpose in publishing the matter complained of and then to set out the facts and circumstances from which it is alleged that improper motive or purpose can be inferred. In support of this submission counsel for the defendant’s referred to Roberts v Bass (2002) 212 CLR 1; Bass v TCN Channel Nine Pty Ltd (2002) 60 NSWLR 251 and especially the judgment of Spigelman CJ; El-Azzi v Nationwide News Pty Ltd [2004] NSWSC 1057 (Levine J). All of these cases were defamation cases and were concerned with whether a defence of qualified privilege had been defeated by malice. However, it was submitted by counsel for the defendants that there was no difference between the concept of malice as a matter which defeats an otherwise available defence of qualified privilege and the concept of malice as an element in the tort of injurious falsehood.

75 Counsel for the defendants relied particularly on paragraphs 10 and 30 of the Chief Justice’s judgment in Bass v TCN Channel Nine Pty Ltd, in which the Chief Justice, after noting that the particulars of malice which had been supplied did not contain any statement asserting that the respondent (defendant) had published the matter complained of for any specified purpose or motive being a purpose or motive not within the occasion of the qualified privilege, held that the particulars which had been supplied were not sufficient and that the particulars had properly been struck out because they did not assert what the defendant’s unauthorised purpose had been.

76 It was conceded by counsel for the defendants that Handley JA had taken a contrary view to that of the Chief Justice but it was contended that the third member of the Court, Wood CJ at CL, had not agreed with Handley JA and that in El-Azzi Levine J had preferred the Chief Justice’s approach.

77 Counsel for the plaintiffs suggested that the requirements for providing particulars of malice in a claim for injurious falsehood might not necessarily be the same as the requirements for providing particulars of malice in proceedings for defamation when it is asserted by the plaintiff that the defendant in publishing the matter complained of had a motive or purpose which was outside the occasion of a qualified privilege. In such a context there might be more reason for requiring the plaintiff to specify what the plaintiff alleges the defendant’s motive or purpose was. However, on the assumption that the same principles apply in both contexts, counsel for the plaintiffs submitted that it was not necessary for the plaintiffs to specify the purpose or motive which they alleged had actuated the defendants, that Handley JA had so held in Bass v TCN Channel Nine Pty Ltd and that Wood CJ at CJ had supported the judgment of Handley JA rather than the judgment of the Chief Justice. It was submitted that, in any event, the plaintiffs had specified some purposes or motives which they alleged had actuated the defendants in publishing the article.

78 In the judgments in Bass v TCN Channel Nine Pty Ltd there are frequent references to parts of the joint judgment of Gaudron, McHugh and Gummow JJ in Roberts v Bass, the judgments in Roberts v Bass having been handed down while the Court of Appeal was reserved in Bass v TCN Channel Nine Pty Ltd, and I will now refer to certain parts of the joint judgment.

79 At 30 (75) malice which will destroy qualified privilege was defined as “any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff”.

80 At 31 (76) their Honours, in a passage strongly relied on by counsel for the plaintiffs, said in part:-

“ Improper motive in making the defamatory publication must not be confused with the defendant's ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication. Indeed, proof that the defendant knew that a defamatory statement made on an occasion of qualified privilege was untrue is ordinarily conclusive evidence that the publication was actuated by an improper motive. But, leaving aside the special case of knowledge of falsity, mere proof of the defendant's ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication. Even knowledge or a belief that the defamatory statement was false will not destroy the privilege, if the defendant was under a legal duty to make the communication”.

81 As 32 (77) their Honours said that, if a defendant knew that his statement was untrue at the time of making it, that would almost invariably be conclusive evidence of malice. However, at 32 (78) their Honours said that knowledge that matter published is false or a lack of any honest belief that the matter is true is not equivalent to malice. At 32 (79) their Honours said that what is decisive of malice is the motive or purpose for which the defendant used the occasion, not the defendant’s belief in the truth of the matter published.

82 At 34 (83) their Honours said:-

“In our opinion, neither lack of honest belief nor knowledge of falsity ipso facto destroys a defence of qualified privilege. But knowledge of falsity is ‘almost conclusive evidence’ of improper motive, except where the defendant is under a legal duty to publish the defamation”

83 At 35 (87) their Honours said:-

“Further, mere lack of belief in the truth of the communication is not to be treated as if it was equivalent to knowledge of the falsity of the communication and therefore as almost conclusive proof of malice.”
………………
“…recklessness, short of wilful blindness, is not enough to destroy the privilege. It must be accompanied by some other state of mind. Where that is so, the recklessness is evidence that the publication was actuated by the accompanying state of mind, be it anger, hatred, bias or unreasoning prejudice”.

84 At 39 (98) their Honours said:-

“When the plaintiff proves that the defendant knew the defamatory matter was false or was reckless to the point of wilful blindness, it will constitute almost conclusive proof that the publication was actuated by malice”.
………………
When the plaintiff can only prove that the defendant lacked a belief in the truth of the defamatory material, however, it will be no more than evidence that may give rise with other evidence to an inference that the publication was actuated by malice”.

85 In Bass v TCN Channel Nine Pty Ltd the defendant television channel sought to rely on the derivative qualified privilege of a third party publisher, where the matter published is a reply by a person who has been attacked in the same forum by the plaintiff and has the primary qualified privilege.

86 The plaintiff in Bass v TCN Channel Nine Pty Ltd was a building sub-contractor who in an interview which was broadcast by Channel Nine had attacked the Building Workers’ Industrial Union. Channel Nine broadcast parts of an interview with the secretary of the Union in which the secretary replied to the plaintiff’s attack on the Union. The plaintiff’s action for defamation was based on some of the things said by the secretary of the Union in these parts of the interview. Channel Nine pleaded a number of defences including qualified privilege and the plaintiff in his reply alleged malice on the part of Channel Nine.

87 The particulars of malice pleaded were:-

“(a) The defendant had no belief in the truth of what it published.
(b) The defendant was reckless as to the truth of what it published.
(c) The defendant knew that the Building Workers’ Industrial Union spokesman was motivated by malice towards the plaintiff.
(d) The defendant believed that what it published about the plaintiff was false”.

88 At the trial the trial judge held that the particulars as pleaded did not amount in law to malice and the trial judge took the issue of malice away from the jury. The jury found that two defamatory imputations had been conveyed by the matter published, upheld a defence of truth to one of those imputations and rejected all the defences left to the jury in respect of the other imputation. The trial judge later upheld the defence of qualified privilege, so that the plaintiff’s action in defamation failed.

89 The plaintiff appealed to the Court of Appeal against the trial judge’s decisions on qualified privilege and malice. All three members of the Court of Appeal held that the trial judge had correctly found that, subject to malice, the defendant had had a qualified privilege but the Court of Appeal held by a majority (Handley JA and Wood CJ at CL, Spigelman CJ dissenting) that the trial judge had erred in holding that the particulars of malice pleaded were insufficient.

90 I have already referred to parts of the judgment of the Chief Justice in which the Chief Justice held that the particulars of malice pleaded were insufficient, because they did not contain a statement asserting that the respondent had published the matter complained of for a specified purpose or motive being a purpose or motive foreign to the occasion of the qualified privilege in question. His Honour held that, as a result of the joint judgment in Roberts v Bass, particulars (a) and (b) were insufficient and further held that particulars (c) and (d), although they might constitute evidence from which an inference of an improper purpose might be drawn, “did not go far enough”.

91 Handley JA in his judgment held that, as a result of the joint judgment in Roberts v Bass, each of particulars (a) and (b) “fails as a matter of law”. His Honour proceeded to consider particulars (c) and (d) together and concluded that a media organisation would lose a derivative qualified privilege, if it knew that its joint publisher had lost its primary privilege because it was actuated by malice, the exception where the holder of the derivative qualified privilege is under a duty to pass on a defamatory statement not being applicable. Hence, particulars (c) and (d) were sufficient particulars of malice.

92 At paragraphs 124 to 137 of his judgment Handley JA considered the parts of the Chief Justice’s judgment dealing with malice. Notwithstanding what the Chief Justice had said in his judgment, Handley JA adhered to the conclusion he had already reached that particulars (c) and (d) were “capable of establishing a prima facie case of malice and as such were proper particulars of the ultimate facts on which the plaintiff relied”. Handley JA held that Supreme Court Rule Pt 16 r 3(1), corresponding to Uniform Civil Procedure Rule Pt 15 r 4, and Supreme Court Rule Pt 67 r 19 “only require the plaintiff to state the facts matters and circumstances on which he relies to prove malice. The plaintiff is not required to particularise the unauthorised purpose or motive which actuated the defendant”.

93 In his judgment Wood CJ at CL held, applying Roberts v Bass, that neither particular (a) nor particular (b) would, by itself, as a matter of law, establish malice but each could “continue to be relevant as one of a series of circumstances which, when considered together, would support an inference of malice”.

94 Wood CJ at CL stated that the issue to be determined was whether or not particulars (c) and (d), in conjunction with either particular (a) or particular (b) (which his Honour considered to be alternatives) would be sufficient to support a case of malice.

95 In paragraph 164, a part of Wood CJ at CL’s judgment particularly relied on by counsel for the defendants, his Honour said:-

“The position would have been clear, and would have been resolved in favour of the appellant, had the particulars gone on to expressly allege, for example, that TCN had published the reply in circumstances where it knew that the material which it put to air was not balanced, or where it did so in order to unfairly harm the appellant, or where it acted for some other improper motive personal to itself”.

96 However, Wood CJ at CL proceeded to hold at paragraph 171:-

“Particulars (c) and (d), when read together as part of a circumstantial case, would, in my view, be capable of establishing an improper motive, depriving TCN of the qualified privilege that would otherwise have attached”.

97 Accordingly, Wood CJ at CL agreed with Handley JA that the appellant should have been allowed to rely on malice and that the appeal should be allowed. In other words, Wood CJ at CL agreed with Handley JA that the particulars pleaded were sufficient, even though the particulars pleaded did not contain any allegation that the respondent in publishing the matter complained of had been actuated by a specified improper purpose or motive.

98 In El-Azzi Levine J said that the approach of the Chief Justice in Bass v TCN Channel Nine, and not the approach of Handley JA, appeared to Levine J to be correct and that it is necessary in providing particulars of malice to specify a motive or purpose. Levine J noted that Handley JA had been “in stark disagreement with the Chief Justice” and said, with regard to Wood CJ at CL’s judgment, “I am unable to read anything in the judgment of Wood CJ at CL, who concurs with Handley JA, that directly concurs with Handley JA’s clear dissent from the Chief Justice”.

99 It is true that there is no passage in Wood CJ at CL’s judgment in which he expressly concurs with Handley JA’s dissent from the Chief Justice. However, as I have sought to show, Wood CJ at CL’s reasoning and conclusion is consistent only with his concurring with Handley JA that it is not necessary in providing particulars of malice to specify an improper motive or purpose actuating the publication.

100 I have concluded on the basis of what I consider to be the views of the majority in Bass v TCN Channel Nine Pty Ltd that in pleading a cause of action for the tort of injurious falsehood it is not necessary for the plaintiff to specify what the plaintiff alleges was an improper motive or purpose of the defendant in publishing the matter complained of.

101 In any event, the plaintiffs have in some of the particulars of malice specified what they allege was an improper motive or purpose of the defendants. In particular (vi) it is alleged that when the second defendant published the article he was biased and prejudiced against Coco Roco and their owners by reason of the dismissal of Mr Mebberson and Ms Lindsay. In paragraph (xiv) it is alleged the defendants had an improper motive being an intent to injure the plaintiffs.

102 In the particulars which have been supplied the plaintiffs have alleged a number of matters which, according to paragraph 76 of the joint judgment in Roberts v Bass, will usually provide premises for inferring that a defendant was actuated by an improper motive in publishing the matter complained of; for example, bias and prejudice in particular (vi), recklessness in particular (vii), knowledge on the part of the first defendant that what had been published was false in particular (ix) and an intent to injure in particular (xiv). The judges who delivered the joint judgment went on to say that the evidence of the publication must also show some ground for concluding that such matters existed at the relevant time and actuated the publication. In my opinion, this requirement is satisfied by, among others, particulars (vi), (ix), (xii), (xiv) and (xvi).

103 I accept that some of the particulars, and indeed most of the particulars, when considered individually, would be insufficient to establish malice. However, notwithstanding some of the language used by Handley JA in his Honour’s judgment in Bass v TCN Channel Nine (for example, that each of particulars (a) and (b) in that case “fails as a matter of law”), I do not understand his Honour to be saying that a matter which is insufficient of itself to establish malice is necessarily to be struck out as not being a proper particular of malice. Especially in the present case, where the only Rules to be complied with are Pt 15 rr 1 and 4 and the plaintiffs in alleging malice are obliged to give particulars of the “facts” on which the plaintiffs rely, a fact stated in a separate paragraph of the particulars may be one of a combination of facts from which an inference of malice is capable of being drawn, even though no such inference could be drawn from the individual fact considered in isolation from other facts. I would adopt the approach of Wood CJ at CL in Bass v TCN Channel Nine, that a particular which would not by itself establish malice may continue to be relevant as one of a set of circumstances which, considered together, would support an inference of malice. A particular should be struck out on the ground that it is incapable of supporting a finding a malice, only if it is incapable of constituting one of a set of circumstances from which, considered together, an inference of malice could be drawn.

104 Some of the particulars refer to conduct of the first defendant occurring after the publication of the article, for example particulars (xi) and (xviii). It is well established that conduct on the part of a defendant subsequent to the publication of defamatory material may provide evidence of improper motive at the time of publication. Australian Defamation Law and Practice paragraph (18040).

105 Some of the particulars of malice refer only to the second defendant, for example particulars (vi), (vii), (viii), (x), (xii), (xvii) and (xix). However, the first defendant, as the publisher of the Sydney Morning Herald of 30 September 2003, as alleged in paragraphs 1 and 2 of the further amended statement of claim, would be vicariously liable for any malice of the second defendant in writing the article. See Australian Defamation Law and Practice paragraph (18045) and the cases there cited.

106 Various criticisms were made by counsel for the defendants of some of the individual particulars of malice. Except where I otherwise indicate, I have decided that I should decline to strike out an individual particular.

Particulars (i) to (vi)

107 Counsel for the defendants acknowledged that he could not say much by way of criticism of these particulars, except that he submitted, in accordance with his general submission, that any improper purpose or motive alleged should be expressly stated and that it should be expressly alleged that at the time the article was written and published the second defendant was aware of the dismissal of Mr Mebberson and Ms Lindsay. I have already dealt with the general submission. It seems to me to be clearly implicit in particular (vi) that the second defendant at the time of writing the article was aware of the dismissal of Mr Mebberson and Ms Lindsay. I give the plaintiff leave, if they wish, to amend the particulars so as to add an express allegation that the second defendant was aware of the dismissals.

Particular (vii)

108 This particular was criticised by counsel for the defendants on the grounds that the allegation that the second defendant had acted maliciously was merely “rhetorical”, that recklessness by itself is not sufficient to amount to malice and that the criticisms which were expanded to include the Roco restaurant were not sufficiently identified.

109 I consider that I should strike out the words “maliciously and/or” in the second line of the particulars. While recklessness by itself is insufficient to amount to malice, recklessness may be one of a set of circumstances from which malice can be inferred. In my opinion, the criticisms which were expanded to include the Roco restaurant are sufficiently identified.

110 Particular (viii) was criticised by counsel for the defendants on the grounds that a failure to make enquiries is not a proper particular of malice and that the particular did not identify the enquiries which the second defendant ought to have made. However, a failure to make enquiries as to the truth of matter published may, at least in some circumstances, enable an inference to be more easily drawn that the publisher’s intention was to injure the plaintiff. I do not consider that the plaintiffs were obliged to supply further particulars of the enquiries which they alleged should have been made, which could obviously have been made at the Roco restaurant.

Particular (ix)

111 It was pointed out by counsel for the defendants that this particular is restricted to the first defendant and does not apply to the second defendant. Counsel for the plaintiffs accepted that the particular is so restricted. I was informed by counsel for the plaintiffs that the particulars given of the names of employees, servants and agents of the first defendant are the best particulars the plaintiff can give. It was accepted by counsel for the plaintiffs that the word “imputations” in the last paragraph of the particulars should be “statements”. I strike out the last paragraph of the particular and I give the plaintiffs leave to amend the particular.

Particular (x)

112 It was pointed out by counsel for the defendants, and accepted by counsel for the plaintiffs, that this particular refers only to the second defendant.

Particular (xi)

113 Counsel for the plaintiffs accepted that the words “defamatory imputations” should have read “the statements”. I strike out particular (xi) and give the plaintiffs leave to file an amended particular.

Particular (xii)

114 Counsel for the defendants submitted that this was not a proper particular of malice. In my opinion, it is capable of forming part of a set of circumstances from which malice could be inferred.

Particular (xiii)

115 It was submitted by counsel for the defendants that it was unclear which defendant was being referred to in this particular. In my opinion, it is clear that the defendant referred to is the first defendant. I give the plaintiffs leave to amend the opening words of the particular so as to refer to “the first defendant”.

Particular (xiv)

116 It was submitted by counsel for the defendants that this particular does not sufficiently identify what matters are relied on as against each defendant as establishing an improper motive on the part of that defendant. I uphold this submission and strike out the particular but give leave to the plaintiffs to file an amended particular.

Particular (xv)

117 It was objected by counsel for the defendants that this particular is “meaningless”. However, the language used in, and the manner of presentation of, an article in a newspaper is a matter which in combination with other matters is capable of supporting an inference of malice. The particular can be read with particular (xiv).

Particular (xvi)

118 Counsel for the defendants submitted that the matters forming part of the plaintiffs’ case on malice were not identified. However, the matters alleged to be false are set out in the particulars of falsity in the further amended statement of claim. Counsel for the defendants submitted that the plaintiffs would appear to be relying on something more than the mere falsity of the statements. I accept this latter submission and I strike out particular (xvi) but give the plaintiffs leave to file an amended particular.

Particular (xvii)

119 Counsel for the plaintiffs submitted that it was unclear whether the plaintiffs are complaining about the timing of the publication of a harsh and uncompromising review or simply the fact of the publication of a harsh and uncompromising review, which, it was submitted, would not be a proper particular of malice. It seems to me that this particular should be clarified. I strike out the particular but give leave to file an amended particular.

Particular (xviii)

120 It was objected by counsel for the plaintiffs that matters occurring after the date of the publication would have no bearing on the state of mind of either defendant at the time of publication. However, as I have already stated, this submission is not well founded. A plaintiff is entitled to call evidence of the defendants’ conduct at any time up to and after publication, if it is probative of the defendant’s state of mind at the time of publication.

Particular (xix)

121 No submission was made by counsel for the defendants about this particular.

Particular (xx)

122 This particular is clearly not sufficient of itself to establish malice but, in my opinion, it is capable of constituting part of a set of circumstances from which malice could be inferred.

123 I dismiss the application to strike out the claim for injurious falsehood. However, I have struck out some individual particulars of falsity or of malice, to the extent which I have indicated.

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