Hore-Lacy v Cleary
[2007] VSCA 314
•19 December 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 9049 of 2005
| DYSON HORE-LACY |
| v |
| PHIL CLEARY AND ANOR |
---
JUDGES: | ASHLEY, NEAVE and REDLICH JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 April 2007 | |
DATE OF JUDGMENT: | 19 December 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 314 | |
---
Defamation – Pleading of fair comment – Whether necessary to address the sting of the libel as pleaded – Whether alleged fair comment met sting of libel as pleaded – Whether particulars may be ordered of facts upon which alleged comment is founded when fair comment defence is of the ‘rolled-up’ kind – Aga Khan v Times Publishing Co [1924] 1 KB 675 considered.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J L Sher QC with Mr L W Maher | Lennon Settle & Mazzeo |
| For the Respondents | Mr W T Houghton QC with Ms G L Schoff | Gibson Legal |
ASHLEY JA:
This appeal, brought by leave, concerns a pleading issue in a defamation claim brought by the appellant, Dyson Hore-Lacy against three defendants, the first two of whom, Phil Cleary and Allen & Unwin Pty Ltd, are the respondents to the appeal.[1] Specifically, the appeal concerns a rolled-up plea advanced by the respondents in their amended defence dated 4 October 2006.
[1]The appellant having resolved matters with the third defendant, McPhersons Printing Pty Ltd.
By oral application made on 31 October 2006 the appellant sought to have the plea struck out, or else particularized. A judge of the Trial Division dismissed the application, handing down written reasons for doing so on 6 November 2006.
Pertinent circumstances
In order to understand the issues which arise it is necessary to set out a little of the history of the matter.
The appellant’s claim arises out of the publication of a book titled ‘Getting Away with Murder: The True Story of Julie Ramage’s Death.’ The book was written by the first respondent and published by the second respondent. In general terms, the book is concerned with the killing of Julie Ramage by James Ramage on 21 July 2003, and the circumstance that Ramage was found not guilty of murder but guilty of manslaughter by operation of the defence of provocation.
The appellant’s writ was filed on 28 October 2005. The respondents admitted a number of matters pleaded by the statement of claim: that the appellant is and was at all material times a member of the Victorian Bar practising as senior counsel;[2] that the first respondent was the author of the book and the second respondent its publisher; and that each of the respondents published the book in Victoria in or about September 2005 of and concerning the appellant.
[2]Since the writ was filed, the appellant has been appointed a Deputy Coroner; but nothing turns on it.
I go to matters alleged by the appellant and denied by the respondents as the statement claim was initially framed.
By paragraph 6, the appellant pleaded that the book disparaged the appellant personally and in his calling as a member of the Victorian Bar. In that connection, the appellant identified particular excerpts from the book, and relied also upon its ‘general tenor and theme’.
By paragraph 7, the appellant pleaded a false innuendo. In its ordinary natural meaning, he alleged, the book meant and was understood to mean that –
(a)the plaintiff had manufactured a defence of provocation for James Ramage thereby perverting the course of justice;
(b)the plaintiff had, in combination with James Ramage and/or another agreed to manufacture a defence of provocation for James Ramage thereby perverting the course of justice.
By paragraph 8, the appellant pleaded true innuendo. He alleged that the book conveyed the same defamatory meanings to readers with knowledge of the laws of the State of Victoria relating to provocation as a defence to a charge of wilful murder and relating to the crime of perverting the course of justice.
Pausing for a moment, and in order to give life to the pleaded words, the book – which I read as a background to the hearing and determination of this appeal – asserts that Ramage contacted and met with the appellant, and also another lawyer, on the evening of the day on which he killed his wife – that being not long before he surrendered himself to the police. The book also appears to assert that, by the time he was interviewed by the police, Ramage was, shortly put, possessed of a provocation defence which was at odds with the true circumstances of the matter as the author perceived them to be.
There is no issue between the parties, it seems, that Ramage did ring the appellant on the evening of the killing, that he and the appellant did meet later that evening, and that the appellant arranged for another lawyer to attend the meeting place. So much appears, we were told from the Bar Table, from the appellant’s answers to interrogatories.
Returning to the statement of claim in its original form, by paragraph 9 the appellant pleaded loss and damage, and by paragraph 10 that the circumstances of the publication entitled him to an award of aggravated and/or exemplary damages – that plea being extensively particularized.
By their original defence, delivered 6 December 2005, the respondents in part relied upon a rolled-up plea as follows:
They say further that, if the book was defamatory of the plaintiff (which is denied), then insofar as it consisted of statements of fact, those statements are true in substance and in fact and, insofar as it consisted of expressions of opinion, those expressions are fair comment on a matter of public interest, namely whether James Ramage should have been entitled to rely on a defence of provocation to the charge of wilful murder brought against him.
The appellant sought particularization of the substance of the alleged comment. The respondents said that they were under no obligation to provide it.
By summons dated 28 July 2006 the appellant sought leave to amend his statement of claim; and an order that the rolled-up plea be struck out, or else that the respondents particularise the alleged comment.
On 20 September 2006 Kellam J (as he then was) ordered that the appellant have leave to file and serve an amended statement of claim, and that the respondents file and serve an amended defence containing particulars which specified the fair comment pleaded by paragraph 11 of their defence.
The permitted amendments to the statement of claim were to paragraphs 7 and 8, and to particularization of the claim for aggravated and/or exemplary damages. I should set out paragraphs 7 and 8 in their amended form, although paragraph 7 is of central importance.
7.In its ordinary and natural meaning, the book meant and was understood to mean that:
(a)The Plaintiff had manufactured a defence of provocation for James Ramage thereby perverting the course of justice;
(b) The Plaintiff had, in combination with James Ramage and/or Stephen Pica, agreed to manufacture a defence of provocation for James Ramage thereby perverting the course of justice;
(c)The Plaintiff had committed a serious breach of barristers’ ethics;
(d)The Plaintiff had committed an act of professional misconduct.
8.Further or alternatively, by way of innuendo arising for readers of the book with knowledge of the facts set out below, namely the class of persons comprising practising lawyers, judges, members of the Victoria Police Force, legal academics, members of law reform bodies, members and officers of professional legal associations, and persons engaged in law enforcement and the application of the criminal law, the book conveyed the defamatory meanings set out in paragraph 7 above.
PARTICULARS OF THE EXTRINSIC FACTS
The law of the State of Victoria relating to:
(a)provocation as a defence to a charge of wilful murder; and
(b)the crime of perverting the course of justice;
(c) the general duties of counsel;
(d)the Rules of Conduct of the Victorian Bar, more specifically Rules 4, 16, 19, 20, 29, 46 and 149;
(e) s 147 of the Legal Practice Act 1996.
The respondents filed an amended defence by which they continued to deny the allegations made by paragraphs 7 and 8 of the statement of claim. Their re-pleaded paragraph 11 was follows:
They say further that, if the book was defamatory of the plaintiff (which is denied), then insofar as it consisted of statements of fact, those statements are true in substance and in fact and, insofar as it consisted of expressions of opinion, those expressions are fair comment on a matter of public interest, namely whether James Ramage should have been entitled to rely on a defence of provocation to the charge of wilful murder brought against him and the role played by the legal practitioners who communicated with Ramage shortly before he turned himself into the Police. The substance of the comment was that:
(i)there is a serious question to be investigated as to whether the Plaintiff played any role in manufacturing the defence of provocation on which James Ramage relied at his trial for wilful murder of his wife Julie;
(ii)there is a serious question to be investigated as to whether the Plaintiff had committed a serious breach of barristers’ ethics or an act of professional misconduct.
It was paragraphs 7 and 8 of the statement of claim in their amended form, and paragraph 11 of the defence in its amended form, which were at the heart of the unsuccessful application by the appellant from which this appeal is brought.
The opposing submissions
Senior counsel for the appellant relied upon a number of matters in challenging the refusal of the learned judge below to strike out the impugned paragraph. He submitted that:
(1) Assuming – which the appellant disputed – that the respondents had pleaded and particularised comments, the same were impermissibly remote from the defamatory imputations relied upon by the appellant. The decision of Bongiorno J in Gutnick v Dow Jones & Co Inc (No 4)[3] (‘Gutnick No 4’) was correct, and applied by analogy.
[3](2004) 9 VR 369.
(2) An allegation that there is a serious question for investigation whether a plaintiff has committed a criminal act or other serious wrongdoing should be defensible only as an allegation of fact, not of opinion.[4]
[4]Counsel referred to Gatley on Libel and Slander, (10th ed, 2004), [3.26], First Supplement, [11.1]–[11.7], and Lewis v Daily Telegraph Ltd [1964] AC 234.
(3) The alleged comments were not recognisable as such. They were allegations of fact masquerading as comments.
(4) The alleged matters of public interest did not meet that description. Particularly that was so having regard to the obscurity of the references to the role of the legal practitioners in both the body of paragraph 11 and in subjoined particular (i).
(5) The amendment did not conform with what had been permitted by the order of Kellam J. His Honour had ordered the respondents to particularise the fair comment which they pleaded. But they had instead added a second matter of alleged public interest, and had provided not the substance of the comments, but rather their meaning.
The appellant further complained that the respondents had not been required in any event to particularise the facts upon which the alleged comments were founded. That was objectionable, counsel submitted, bearing in mind the length of the book, the multiple references to the appellant, and the multiple approaches to the book’s overall thesis. The highwater mark of the submission was that this Court should hold that Aga Khan v Times Publishing Co,[5] relevantly, is not good law.
[5][1924] 1 KB 675
Counsel for the respondents submitted, in response, that –
(1) The fair comment defence met the appellant’s case, and complied with the requirements laid down in David Syme & Co Ltd v Hore-Lacy.[6]The meanings relied upon were a variant on, not substantially different from, and no more injurious or serious than a pleaded meaning. The matters pleaded by the respondents were ‘inextricably bound up with’ or ‘allied to’[7] the meanings pleaded by the appellant. The similarities between the pleaded imputations and the comment were closer than those which were permitted to go forward in Nationwide News Pty Ltd v Moodie.[8]
[6](2000) 1 VR 667.
[7]Paraphrasing Gillard AJA in Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 67, [324] and 71, [347].
[8](2003) 28 WAR 314, 330 (Steytler J).
(2) The decision in Gutnick No 4 was readily distinguishable; but in any event was wrong. The authorities upon which Bongiorno J relied had been decided in an entirely different context.
(3) The authorities which deal with imputations of criminality are relevant to the defence of justification, and to whether a matter is a statement of fact or of opinion. Defendants who plead the rolled-up plea are not called upon to justify the meanings of their comments. In any event, the judge below had been correct to treat the plea as equating to the third level of meaning described by Gatley - so that it was properly characterised as comment.
(4) It is for the judge at trial, not a court on a pleadings dispute, to determine whether a statement, based upon inference from facts stated, is capable of being regarded as a comment. Then, if the matter is permitted to go to the jury, it is for the jury to determine whether a fair comment defence is made out.
(5) The facts upon which the comments were based were not in doubt. They were ‘the facts stated in the book’. Further, ‘it serve[d] no purpose in the case of the rolled-up plea to require a defendant to identify those parts of the publication sued upon that it says are statements of fact and those that are statements of opinion, nor is a defendant required to do so’. Neither the Rules of Court relied upon by the appellant, nor the decision of the English Court of Appeal in Control Risks and others v New English Library and another,[9] detracted from that position.
[9][1990] 1 WLR 183.
(6) The re-pleaded defence was consonant with the order made by Kellam J. In any event, the appellant had not demonstrated any real prejudice by reason of the amendment, and the respondents should not be deprived of the potential benefit of their amended defence.
(7) The learned judge at first instance had correctly decided that the plea raised matters of public interest.[10]
[10]Citing London Artists Ltd v Littler [1969] 2 QB 375, 391 (Lord Denning MR).
Resolution of the appeal
In my opinion, the appellant was correct to contend that the amendment to paragraph 11 went outside the parameters set by the order of Kellam J. But I agree with the submission for the respondents that this should not prevent them relying upon the amended plea in the absence of any demonstrated prejudice to the appellant. It therefore becomes necessary to consider the substance of the dispute – though not all the issues which counsel debated.
In my opinion, assuming but not deciding that paragraph 11 pleads one or more matters of public interest, and that it pleads the substance of comment (as distinct from matters of fact, and also as distinct from the meanings of comment), the subject-matter of the comment is so remote from the pleaded imputations as to make the plea impermissible. I would strike out paragraph 11.[11] The respondents having specified what they claimed was the substance of the comment residing in the publication, there is no revealed basis for giving them an opportunity to re-plead a fair comment defence. It is not to be supposed that they would now seek to allege a comment the substance of which met the sting of the libel pleaded by the appellant.
[11] Counsel made no submissions as to the appropriate strike-out test. I take it to have been uncontroversial that to succeed in such an application the Court must be satisfied that the plea should be characterised as ‘obviously unsustainable’, or ‘so obviously untenable that it cannot possibly succeed’, or ‘so manifestly faulty that it does not admit of argument’.
Although I would strike out paragraph 11, and although I doubt the likelihood that a basis for giving the respondents an opportunity to re-plead a fair comment defence could be revealed, I will later say something - having regard to the fact that the judge below refused to make an order for particulars - upon the question whether Aga Khan will always deny the making of an order for particularisation of the statements of fact to which a rolled-up plea refers.
A fair comment defence must engage with the sting of the alleged libel
I turn to explain the conclusions which I expressed a moment ago.
Although, in Victoria,[12] a plaintiff sues on the publication, a plaintiff is in general bound by the meanings which he attributes to it. That is subject to the right of the tribunal of fact to find a defamatory meaning which is a permissible variation of the pleaded meanings.[13] A permissible variation is correlative with the limits on the operation of a Polly Peck[14] justification defence. It may be regarded as the other side of the coin. According to the majority judgments in David Syme & Co Ltd v Hore-Lacy,[15] for a Polly Peck defence to be available it must plead a meaning not more serious and not substantially different from the meaning pleaded by the plaintiffs.[16]
[12]By contrast with the position in NSW.
[13]Chakravarti v Advertiser Newspaper Ltd (1998) 193 CLR 519, 532-534, [17]-[24] (Brennan CJ and McHugh J), 542-546, [52]-[60] (Gaudron and Gummow JJ), 578-581, [139] (Kirby J).
[14]Polly Peck (Holdings) Pty Ltd v Trelford [1986] QB 1000.
[15](2000) 1 VR 667.
[16][21], [22] and [24] (Ormiston JA); [46], [52]-[54] and [60]-[61] (Charles JA).
The gist of what was relevantly said by Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd[17] was that a fair comment defence, like a justification defence, must engage with the sting of the alleged libel, or a permissible variant. In Anderson v Nationwide News Pty Ltd (No 1),[18] it was concluded, in a considered obiter dictum, that what their Honours said had application to a fair comment defence pursued in this State. In Anderson v Nationwide News (No 2)[19] Bongiorno J struck out the defendant’s fair comment defence, applying what had been said in Anderson No 1.[20] The same approach was to be found in the decision of the Full Court of the Supreme Court of South Australia in Manock v Channel Seven Adelaide Pty Ltd.[21]
[17](1998) 193 CLR 519, 528. Their Honours agreed in the result, but differed in their reasoning, from the other members of the Court. But that different reasoning does not impact, I consider, on the force of the presently relevant aspect of their Honours’ judgment.
[18](2001) 3 VR 619, 633, [66], [67] and 636, [81]-[83].
[19](2002) 3 VR 639, 641-642, [7]-[14].
[20]The central concept, that what is said to be the fair comment must address the sting of the alleged libel, equally applies in New South Wales, where each imputation gives rise to a cause of action: New South Wales Aboriginal Land Council vPerkins (1998) 45 NSWLR 340; Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728. In Anderson No (1), (2001) 3 VR 619, 633-635, [68]-[71], the submission was rejected that because a plaintiff sues in Victoria on the publication, and not each separate imputation, there need be no correlation between the imputations alleged by a plaintiff and the subject matter of the fair comment.
[21](2006) 95 SASR 462, 479-480, [38]-[43]. In that case, a number of issues arose in the context of a pleading of fair comment in the general form.
Very recently, in Channel Seven Adelaide Pty Ltd v Manock,[22] an appeal from the decision last-mentioned, the question of the correct approach was considered by the High Court. Indeed, anticipated consideration of the question made it necessary that this Court’s decision in the instant appeal should be delayed for some months.
[22][2007] HCA 60, reasons published 13 December 2007.
Subsequent to the High Court publishing its reasons in Manock, the Court gave the parties an opportunity to make further submissions. Upon the issue now pertinent, it was submitted for the appellant that although the High Court had not used the language of ‘the defence [of fair comment] having to meet the sting of the pleaded libel’ its formulation of the relevant question had in substance been the same; and its unanimous answer to the question which it framed reinforced the appellant’s argument. For the respondents, it was submitted that the joint judgment[23] had simply affirmed the principle that a fair comment defence must relate[24] to the meaning – that is, of the impugned publication – found to be conveyed by the jury. It is in that meaning, it was submitted, that the publication is to be ‘scrutinised by the jury to determine whether it was conveyed as comment and, if so, was fair and base on true fact’.
[23]Of Gummow, Hayne and Heydon JJ.
[24]As being relevant.
In my opinion, Manock does give support for the appellant’s position. The third issue framed by their Honours in the joint judgment was as follows: Is the meaning pleaded by the plaintiff relevant to the defence of fair comment pleaded by the defendant?[25] Their Honours answered that question in the affirmative.[26] Gleeson CJ[27] and Kirby J[28] agreed in that answer.
[25][2007] HCA 60, [31].
[26]Ibid [32].
[27]Ibid [2].
[28]Ibid [108]–[109].
It was concluded in the joint judgment that, even if the defendant had been correct in arguing that it sufficed for the defence of comment to be directed to the words complained of,[29] the defence did not meet that criterion. Even so, their Honours dealt with the point of principle.
[29]That is, as distinct from their meaning, let alone the meaning pleaded by the plaintiff.
Addressing the pleadings, their Honours said this:
Here the defendant, after denying the meaning alleged by the plaintiff and denying that the promotion referred to the plaintiff, “[f]urther, or in the alternative”, pleaded fair comment to the matter complained of which is defamatory of the plaintiff …
and
The issues set up by the pleadings are thus structured as follows. The plaintiff pleaded in par 5 of the statement of claim only one meaning – that the plaintiff had deliberately concealed evidence. The defendant denied that the promotion bore that meaning. If the plaintiff were to fail to establish that the promotion bore that meaning or a meaning not substantially different, the trial judge would not have to go further and the proceedings would be dismissed. If the plaintiff’s allegation were to succeed and the defendant’s denial were to be rejected, the defendant’s further and alternative plea of fair comment would have to be considered.
and
The matter sued on – 28 words spoken while a picture of the plaintiff was displayed on the screen – would have been found to have had the meaning alleged, and the only question would be whether those 28 words, bearing that meaning, constituted fair comment. Hence the defendant’s contention that in this case the meaning pleaded by the plaintiff is irrelevant to the defence of fair comment at common law is wrong. It is wrong because by the time the trial judge comes to consider the fair comment defence the question of meaning will have been decided adversely to the defendant. The meaning found is the comment to be scrutinised for its fairness.
and
If the defendant’s contention were not wrong, it would be open to the defendant to contend that the promotion bore some meaning other than the defamatory meaning which the trial judge had already found, which is impossible.[30]
[30]Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60, [83].
The concept of ‘the meaning found’, it can be seen, does not necessarily depend upon the jury having determined that meaning. So much is made clear by the second to fourth passages which I have just cited.[31]
[31]The references to ‘the trial judge’ in the cited passages do not tell to the contrary. Their Honours were exploring, for the purposes of a strike-out application, the consequences of a finding at trial that the impugned ‘promo’ bore the meaning pleaded by the plaintiff, or a permissible variant.
I should set out two further passages in the joint judgment which in my opinion assist the appellant in the present case. Thus:
Another flaw in the defendant’s position is that the defendant accepts, correctly, that the meaning of defamatory words is relevant to the fair comment defence in several ways: in determining whether the comment is fair; in determining the issue of malice, to which an absence of honest belief in the proposition stated is relevant; in determining whether the plaintiff’s pleaded meaning was conveyed as a statement of fact or a statement of opinion; in determining whether the plaintiff’s pleaded meaning and the defendant’s comment relate to the same allegation; in determining whether the comment is based on facts which are true or protected by privilege, a question which cannot be answered without assessing what the comment means; and in determining whether the comment relates to a matter of public interest, which also depends on its meaning. It would be anomalous if the meaning of the comment is relevant in all these respects, but not relevant in an assessment of whether it responds to the meaning of the promotion pleaded by the plaintiff.[32]
and
Finally, the defendant’s submissions would lead to an injustice. In this case the defendant’s submissions would lead to the conclusion that if the plaintiff establishes the meaning pleaded, he will have been accused of deliberately concealing evidence, while the defendant will escape liability by saying merely that he was incompetent and mistaken in various respects. There is a great gulf between displaying incompetence and deliberately concealing evidence.[33]
[32]Ibid [85].
[33]Ibid [86].
The fair comment defence does not meet the sting of the libel
The sting of the libel alleged by paragraph 7 of the amended statement of claim is that the appellant engaged in criminal conduct,[34] and conduct which seriously infringed professional standards.[35]
[34]Sub-paragraphs (a) and (b).
[35]Sub-paragraphs (c) and (d). The word ‘seriously’ is apt, in my opinion, to each of the matters alleged by those sub-paragraphs. Such conduct, assuming it was proved, would lay the appellant open to substantial sanctions.
All of the imputations pleaded by the appellant, then, allege that the meaning of the publication is that the appellant in fact acted in a particular way, which was on the one hand criminal and on the other hand a serious breach of professional standards.
Turning to paragraph 11 of the defence, it should be noticed that the matter of public interest initially identified -
… whether Ramage should have been entitled to rely on a defence of provocation . . .
was supplemented, in the amended defence, by the addition of –
… and the role played by the legal practitioners who communicated with Ramage shortly before he turned himself into the Police.
As amended, the paragraph raised a new matter of alleged public interest. It was considerably different from the matter first identified, which had focused upon Ramage’s entitlement to rely on a provocation defence. The added focus was upon ‘the role played by the legal practitioners’ – words of notable ambiguity.
It is not however, the matter(s) of alleged public interest which must meet the sting of the libel. It is the comment, the substance of which in this case, as the respondents contend, is specified by sub-paragraphs (i) and (ii) of paragraph 11. Those particulars may conveniently be set out again:
(i)there is a serious question to be investigated as to whether the Plaintiff played any role in manufacturing the defence of provocation on which James Ramage relied at his trial for wilful murder of his wife Julie;
(ii)there is a serious question to be investigated as to whether the Plaintiff had committed a serious breach of barristers’ ethics or an act of professional misconduct.
Again I pause to give life to the pleadings. It was common ground that neither of the alleged comments could be found, so stated, in the book itself – the length of the main text of which is 243 pages. Rather, according to the submission of respondents’ counsel, the comment was to be inferred from facts stated, and opinion vouchsafed (sometimes in the form of rhetorical questions) within the text. In that respect, counsel submitted, the situation was like the imputations pleaded by the appellant. That is, they cannot be found, so stated, in the book itself.
I return to the particulars. It is clear enough that, superficially, particular (i) addresses the imputations pleaded by paragraph 7(a) and (b) of the amended statement of claim, and that particular (ii) addresses the imputations pleaded by paragraph 7 (c) and (d). But it can be seen immediately that there are marked differences between the pleaded imputations and the substance of the alleged comments.
First, whilst imputations (a) to (d) plead meanings that the appellant acted in a certain way, particulars (i) and (ii) plead alleged comment that ‘there is a serious question to be investigated’ whether the appellant acted in particular ways.
Second, the thrust of imputations (a) and (b) is that, by manufacturing, or agreeing with others to manufacture, a defence of provocation, the appellant had thereby perverted the course of justice. But the thrust of particular (i) is that the question for investigation is whether the appellant played ‘any role’ in manufacturing the defence of provocation; and there is no reference to a role which involved the commission of a criminal offence
Counsel for the respondents essayed a number of reasons why no reference had been made in particular (i) to meet the pleaded imputation that the appellant had committed a criminal offence. It was said that to do so would have been conclusionary, that it would not have stated a material fact, and that it would have added nothing. Counsel submitted also that the appellant had not complained about the respondents not pleading such a thing – which seemed to imply that the appellant had been under some obligation to ensure that a comment that he had engaged in criminal conduct was pleaded against him.
Those explanations for the form of the plea were, I think, unconvincing. But regardless whether that be so, counsel’s answers to questions from the Bench made it clear that the reference in particular (i) to ‘any role’ comprehended anything between two extremes - at one extreme, the appellant simply having put Ramage in contact with the other lawyer; at the other extreme, the appellant having actively engaged in ‘manufacturing’ a false provocation defence, and thereby having acted criminally. Counsel also made it clear that his client’s preferred position at trial would be that the appellant acted in the role of facilitator – that being remote from active engagement in manufacturing a provocation defence. Counsel did not suggest that, by facilitating a meeting between Ramage and another lawyer, the appellant would have acted criminally.
Pertinent to both particulars (i) and (ii), counsel asked rhetorically, why, when Ramage told the appellant that he had killed his wife, did the appellant not immediately take him to a police station, or advise him to go to a police station. Presumably, particular (ii) should then be understood as a comment, at least, that if an acquaintance tells a barrister, in a non-professional setting, that he has killed someone, and if the deceased is also known to the barrister, and if the barrister declines to act for the acquaintance, but facilitates the acquaintance seeing another lawyer before he goes to the police, there is a serious question to be investigated whether the barrister has thereby committed a serious breach of barrister’s ethics or an act of professional misconduct. I say ‘at least’, because according to particular (i) the comment that there is a serious question for investigation of the appellant’s role embraces, inter alia, investigation not only whether the appellant facilitated Ramage meeting another lawyer, but at the other extreme, whether the appellant actively manufactured Ramage’s provocation defence, or assisted to do so.
In the circumstances which I have described, I am of opinion that, for more than one reason, the substance of the alleged comment does not meet the appellant’s pleaded imputations, or a permissible variant upon which he would be permitted to go to the jury.[36]
[36]In so concluding I note, but do not rely upon, the statement of senior counsel for the appellant that at trial he would not submit that his client could recover a verdict on any of the meanings said to reside within the alleged comment; that he would not argue that any such meaning was a permissible variant of his client’s pleaded case.
First, whilst it is true, and favours the respondents’ position, that a comment that there is a serious question to be investigated whether A acted in a particular way is less serious than an imputation that A did act in that way, I consider – assuming in the respondents’ favour that the conduct the subject of the imputation and of the comment is one and the same – that there is nonetheless a great difference in the meanings pleaded by the appellant and the substance of the alleged comment at its closest point to such meanings.
In Gutnick No 4[37] Bongiorno J had to consider a proposed justification defence. In response to the plaintiff’s case that the impugned publication imputed that he had been a tax evader who had laundered large amounts of money through a man who had been imprisoned for tax evasion and money laundering, and that he had bought the other man’s silence, the defendant sought to allege and justify meanings that the plaintiff was reasonably suspected by relevant authorities of having been a money laundering customer of the other man, that there was reason to investigate that matter, and reason to investigate also whether he had bought the silence of the other man.
[37](2004) 9 VR 369.
The plaintiff opposed the defendant’s reliance on a defence in that form. He argued that it infringed the boundaries established by David Syme & Co Ltd v Hore-Lacy, and that the proposed meanings were vague, unclear and imprecise.
The learned judge held that the proposed imputations neither met the plaintiff’s imputations, nor were permissible variants of the same. They raised, he said, false issues, and should not be permitted to be litigated. His Honour said this:
The defendant’s imputations are, in each case, imputations of reasonable suspicion. But the issue raised by the plaintiff’s imputations is not whether he was merely suspected of particular arguably reprehensible conduct but rather whether he engaged in that conduct. In Lewis v Daily Telegraph Ltd Lord Reid expressed himself as being firmly of the view that there is a great difference between saying that someone has behaved in a suspicious manner and saying that he is guilty of an offence. Lord Hodson, in the same case, acknowledged that whilst it might be defamatory to say that someone is suspected of an offence, such a statement does not carry with it an allegation that he has committed the offence. Simon Brown LJ (with whom Sir Ralph Gibson agreed) in Stern v Piper accepted that Lewis’ case decided that an allegation that someone is suspected of guilt is different to and less serious than an allegation that he is actually guilty. See also Corse v Robertson and Singleton v Hudson.[38]
and
[Counsel] contended that the plaintiff in this case could obtain a verdict in his favour if the tribunal of fact found, not that the article conveyed an imputation of guilt but merely that it contained an imputation of reasonable suspicion of guilt.
I cannot agree. As the cases to which I have referred make clear, whilst both allegations might be libellous they are not variants of each other as that term is used in Hore-Lacy. The two sets of imputations raise quite different cases. To meet the plaintiff’s case the conduct of the plaintiff must be impugned. But the “Particulars of truth” proffered by the defendant in support of its proposed plea of justification do not implicate the plaintiff in any way at all.[39]
[38]At 372, [8].
[39]At 373, [11]–[12].
Gutnick No 4, unlike this case, concerned a plea of justification. The authorities cited by Bongiorno J were cases in which the defence had been one of justification. One of the issues which had arisen in that context was whether a meaning sought to be justified was a matter of fact or opinion. Counsel for the respondents understandably sought to distinguish the issues joined in the present case.
Gutnick No 4, then, is not this case. But in my opinion it is useful by analogy in resolving the present dispute. It demonstrates the gulf between an imputation that a man acted in a criminal or like manner, and a comment (put at its highest) that there is a serious question for investigation whether he acted in such a way.
Second, as it emerged in argument if it was not already clear, the substance of the alleged comment in particular (i) would embrace, as a serious question for investigation, the question whether the appellant engaged in conduct which carried no hint of criminality. That is still further removed from the imputations pleaded by the appellant.
Third, the substance of the alleged comment set out in particular (i) is impermissibly ambiguous and vague. The Court should not countenance a pleading which would permit the respondents at trial to rely upon a comment the content of which on any view would be remote from the appellant’s pleaded imputations; but which, depending upon the way in which the respondents chose to present their case at trial, would be remote to a greater or lesser degree from such imputations.
Aga Khan v Times Publishing Co [1924] 1 KB 675
I said earlier that for several reasons I should address the submissions made concerning Aga Khan.
Counsel for the appellant submitted that the learned judge below had erred when, having refused to strike out paragraph 11 of the defence, she had not ordered that the respondents provide particulars of the facts upon which the alleged comment was based. Counsel further submitted that the respondents’ persistent refusal to provide particulars was in itself a reason for striking out the plea, rather than giving them an opportunity to provide particulars now. But according to the respondents’ submissions, it would have been wrong for the judge to have ordered provision of such particulars; and in any event they could not be criticised for their refusal to provide them, this being consonant with the law as stated in Aga Khan, and as applied by Hedigan J in Watt v Herald & Weekly Times Ltd.[40]
[40][1998] 3 VR 740, 745-746.
In my opinion, if Aga Khan stands for the proposition that such an order cannot be made in any case in which a defendant relies upon the rolled-up plea, then it ought not be followed. Whether an order should be made for provision of particulars should depend upon the circumstances of the case. In my opinion, the present case is one in which, if paragraph 11 of the amended defence was not to be struck out, an order for particulars should be made. But the respondents could not be criticised for relying upon Aga Khan to resist the making of such an order; and neither could the learned judge be criticised for concluding, in reliance upon Aga Khan, that no such order should be made. So I would reject the appellant’s submission that, if paragraph 11 of the defence otherwise survived, nonetheless it should have been struck out by reason of the respondents’ refusal to provide the particulars which were sought.
The competing submissions, written and oral, and further written submissions provided in response to the Court’s invitation, highlighted two questions of principle: First, what exactly did Aga Khan decide? Second, does what was there decided hold good in Victoria in light of developments in the common law of defamation since 1924, and/or in light of rules of court made pursuant to the Supreme Court Act 1986 (Vic)?
Neither question is proscribed from consideration by this Court. In that connection, the following matters are in point. First, this Court should pay careful attention to, but is not bound by, a decision of the English Court of Appeal.
Second, there is no decision of the High Court which has relevantly adopted Aga Khan as representing the common law of defamation of this country.[41]
[41]Aga Khan was referred to in O’Shaughnessy v Mirror Newspaper Ltd (1970) 125 CLR 166, 174 (Barwick CJ, McTiernan, Menzies, Owen JJ); but only as authority for the proposition that it is for the jury to say what is fact and what is opinion in what has been published.
Third, the Full Court of the Supreme Court of South Australia nominally applied Aga Khan in Becker v Smith’s Newspapers Ltd.[42]But there the plaintiff sought particulars of the facts upon which the defendant intended to rely to establish the truth alleged by a rolled-up plea. The Court pointed out that such a plea is not a plea of justification. It said this:
. . . We feel constrained to hold . . . that it is not open to the defendant under the rolled-up plea to prove that the allegations of fact in the libel are true, and therefore no particulars under this paragraph should be ordered.[43]
In the event, I doubt that Becker should be regarded as requiring this Court to follow Aga Khan in order to maintain comity in the decisions of intermediate appellate courts in this country. That is so even without bringing into consideration changes in the common law of defamation over the ensuing years, and the further development of rules of court.
[42][1929] SASR 469, 473-474.
[43]Ibid [474].
Fourth, whilst there are single judge decisions in Australia which are in point, they are not uniform in result.
Fifth, it is the fact that there have been pertinent developments in the common law of defamation since 1924.
Sixth, there have been alterations to rules of court which are arguably of relevance.
Aga Khan involved a pleading issue dealt with ex tempore by the Court of Appeal. The plaintiff claimed to have been defamed in a series of newspaper articles published by the defendants. The defendants denied that the words complained of were defamatory. They further pleaded that –
In so far as the said words consist of allegations of fact the said words are in their natural and ordinary meaning true in substance and in fact, and in so far as the said words consist of expressions of opinion they are fair comment made in good faith and without malice for the benefit of the public upon the said facts which are a matter of public interest.
The plaintiff sought particulars as to which of the words set out in the relevant paragraphs of the statement of claim were statements of fact, and which were expressions of opinion. The plaintiff also sought particulars of facts in respect of which such expressions of opinion were made and upon which the defendants intended to rely.
The primary judge made orders requiring the defendants to state which of the words set out in the relevant paragraphs of the statement of claim were statements of fact, and which were expressions of opinion. He refused to make an order requiring particularisation of facts intended to be relied upon by the defendants, having been informed that the defendants relied upon the facts set out in the statement of claim, and none other.
On appeal, the order requiring the defendants to differentiate between statements of fact and expressions of opinion was set aside, and the order refusing provision of other particulars was upheld.
Bankes LJ said this:
But here the plea itself states the matters upon which the comment is based, and the defendant ties himself down to the admission that it is the statements of fact contained in the libel, and no others, on which he intends to rely. It cannot possibly assist the plaintiff that the defendants should be required to pick out the statements which they say are statements of facts and those which they say are matters of opinion, for the category to which the several statements belong is a question for the jury, subject to a direction from the judge.
and
To ask the defendants in the present case to go through the libel and point out which statements are statements of fact and which are comment would only result in this – the defendants would pick out what are obviously facts and say they are facts, and would also pick out what are obviously matters of opinion and say that they are matters of opinion. With respect to any statements, as to which it was doubtful to which class they belonged, the defendants would be entitled to say that it was a question for the jury, that they might be fact or they might be opinion, and that under those circumstances the defendants relied upon them as both.
and
the third paragraph [of the request for particulars] amounts to the same thing as the first, and, as proposed to be amended,[44] is nothing but an application for particulars of the evidence on which the defendants seek to establish their case.[45]
[44]The plaintiff unsuccessfully sought to amend head 3 of his summons by substituting a request for particulars ‘of the facts relied upon in support of the allegation that the statements alleged to be statements of facts are true’.
[45]Ibid 681.
Scrutton LJ expressed no doubt that the plaintiff’s cross appeal should be dismissed. He said this:
As the summons was originally drawn head 3 appears to me to ask the same thing as head 1. As amended it appears to ask for the evidence by which the defendants are going to prove the facts, and is therefore contrary to all principle.
As to the proper outcome of the defendants’ appeal, however, his Lordship did express doubt. He said that as a judge he had ‘formed the strongest objection to the so called “rolled-up plea”’. He went on –
Personally, if I were not hampered by authority, I should be inclined to say in every case in which this rolled-up plea is pleaded that the plaintiff is entitled to ask the defendant to specify the statements of fact which he says are true, and the comments which he says are fair. It is quite possible that the adoption of such a practice might, as my Lord suggests, result in the pleader making an alternative allegation: “If this is a statement of fact it is true, if it is a comment on a fact it is fair,” but at any rate it would result in much greater clearness of mind in the pleader, and would afford much assistance to the judge who had to try the case. But I cannot overlook the fact that there has been a series of cases in which it has been held that particulars ought not to be given of the rolled-up plea where the comment is alleged, as here, to be “on the said facts.”
And he said -
… I find that the general trend of the decisions in this Court is in the direction of not making the order where the facts, the comment on which is said to be fair, are defined as being the facts stated in the libel.
Sargant LJ professed himself to be in a worse position than the other members of the Court, having had no experience of defamation actions either as counsel or judge. But on general principles he concluded that the defence sufficiently specified the facts relied upon – albeit that the plaintiff might find difficulty in distinguishing between what was fact and what was comment. That difficulty, his Lordship said, might be ‘incapable of solution until the case has been tried by a judge and jury’.
A number of aspects of Aga Khan should be highlighted:
· First, the central issue was whether the defendants should be obliged to particularise what they alleged was fact, and what they alleged was comment, in the words relied upon by the plaintiff. The plaintiff’s request for particulars of the facts in respect of which expressions of opinion were made and upon which the defendants intended to rely was treated as being simply another way of seeking particulars which separated fact and comment.
· Second, the defendants conceded that the only relevant facts – whatever be the difficulty in isolating them from comment – were to be found in the words pleaded by the plaintiff.
· Third, in the present case, by contrast with Aga Khan, the appellant relies upon three passages from the book, and upon its ‘general tenor and theme.’ He refers to ‘the book’ as the source of the pleaded imputations. By their rolled-up plea, the respondents refer to ‘the book’, and to alleged statements of fact and expressions of opinion in it. It is thus clear that both the appellant and the respondents – most particularly for present purposes the respondents – rely upon passages in the book which are unidentified.
· Fourth, in Aga Khan the plaintiff’s proposed amendment of head 3 of his summons, to seek particulars of the facts relied upon in support of the allegation that the statements alleged to be statements of facts were true, was characterised as a request for particulars of evidence. The request for particulars in the present case was not phrased that way.
· Fifth, the decision on the defendants’ appeal in Aga Khan, although unanimous, was subject to expression of concern by Scrutton LJ, whilst Sargant LJ approached the matter with a professed lack of experience in defamation cases.
· Sixth, the plea was also notable in that, by contrast with modern pleadings, it did not identify the alleged matter of public interest.
· Seventh, Aga Khan long predated analogous developments in the common law of defamation with respect to the defences of justification and fair comment, one consequence of which is that a defendant may be requested, in the latter case, to specify the substance of the alleged comment.
In England, Aga Khan survived until 1949. Then its effect was obliterated by a rule of court. Order 19, r 22A required a defendant relying upon the rolled-up plea to –
give particulars stating which of the words complained of he alleges are statements of fact and of the facts and matters which he relies on in support of the allegation that the words are true.
In the period between 1924 and 1949, Aga Khan had been followed in England with some reluctance. It was criticised by Atkin LJ in argument in Hobbs v People Newspaper Publishing Co.[46]In Tudor-Hart v British Union for the Abolition of Vivisection,[47] the statements of fact upon which the defendant to counterclaim relied were specified; and what the plaintiffs to counterclaim sought were particulars of the allegations relied upon to prove the specified statements. That seems to me to have been distinct from the issue which was decided in Aga Khan.[48] Nonetheless, the Court of Appeal considered that Aga Khan decided the question, and that it should be followed, notwithstanding Lord Atkin’s obiter dictum. Greer LJ, for the Court, said this:
We think we are bound, by the decision of the Court of Appeal in the Aga Khan case, to hold (i) that a defendant pleading the rolled-up plea cannot be ordered to deliver particulars stating which of the statements in the words complained of the defendant relies on as statements of fact, and which as being expressions of opinion; (ii) that the court cannot order such defendant to give particulars of the facts he relies on as being the basis of his comments, if the plea limits those facts to the said facts.
[46]The Times, 30 March 1926, cited in Tudor-Hart v British Union for the Abolition of Vivisection [1937] 4 All ER 475.
[47]Citation at n 34.
[48]Perhaps the request was akin to the request which the plaintiff in Aga Khan sought to make by amendment to head 3 of his summons.
His Lordship went on –
If the question we have to determine here were free from authority, the inclination of our minds would be in the same direction as that indicated by Scrutton, L.J., in his judgment in the Aga Khan case, and by the proposition implied in the words of Lord Atkin above quoted, but we are clearly of opinion that this court is bound by authority to hold that the order appealed from was wrongly made, …
In Lord v Sunday Telegraph Ltd,[49] decided after the amendment to the English rules of court, the defendants pleaded a fair comment defence in general form. It set out in its defence facts upon which the comment was based. But the plaintiff sought to use the then current version of the 1949 rule of court so as to require the defendants to state which of the words relied upon by the plaintiff were alleged to be statements of fact. The attempt failed. It was held that the rule did not apply to the general plea of fair comment. But speaking of the rolled-up plea, Denning MR said this:
That was at one time a very popular plea, for the simple reason that the defendant could not be compelled to give any particulars of it. He could not be compelled to say which was fact and which was comment. The plea came under the criticism of Scrutton L.J. in Aga Khan v. Times Publishing Co. Ltd. [1924] 1 K.B. 675, 681, and of Atkin L.J. in Hobbs v. People Newspaper Co. Ltd., The Times, March 30, 1926, quoted in Tudor-Hart v. British Union for the Abolition of Vivisection [1938] 2 K.B. 329. Eventually in 1948 Lord Porter’s Committee on the Law of Defamation (Cmd. 7536) recommended that the law should be changed. They recommended in paragraph 177 that:
“where a defendant pleads the ‘rolled-up plea’ or any other plea to the like effect, the plaintiff should be entitled to particulars of the facts relied upon by the defendant in support of such plea.”
That recommendation was implemented in 1949 by the former R.S.C., Ord. 19, r. 22A, which is now replaced by R.S.C., Ord. 82, r. 3 (2). But it is to be noted that when the rule-makers framed their rule, they went beyond the recommendations of the Porter Committee. Whereas the Porter Committee only required “particulars stating which of the words complained of are statements of fact.” So that the defendant has to say which are facts and which are comment.
[49][1971] 1 QB 235.
In New South Wales, Western Australia, South Australia and Tasmania there has been amendment to rules of court approximating the English rule. Elsewhere, Aga Khan has been generally followed by single judges. See, in this Court, Watt v Herald & Weekly Times Ltd;[50] in the ACT, Comalco Ltd v ABC;[51] and in the Northern Territory, Perpetual Trustees of Australia Ltd v Brenton.[52] Contrast McLachlan v Rural Press Ltd (No 2).[53] See also the historical critique of the rolled-up plea by Byrne J in Hill v Comben,[54] culminating in his Honour’s observation that ‘(t)he rolled-up plea has an unfortunate potential and no utility.’
[50][1998] 3 VR 740, 741 lines 12–24, 744 line 42 to 747 line 12 (Hedigan J); and, subject to what I say later in these reasons, Li & Anor v Herald & Weekly Times Ltd & Anor (2005) 13 VR 211, 220-224, [43]-[59] (Gillard J).
[51](1985) 64 ACTR 1, 38–40.
[52](1985) 35 NTR 44.
[53](1992) 108 FLR 106.
[54][1993] 1 Qd R 603, 608-609.
In Anderson No 1[55] it was concluded that a defendant who pleaded the rolled-up plea might be ordered to provide the substance (but not the meanings) of the alleged comment. In that way it could be determined whether a plea of fair comment met the sting of the imputations pleaded by the plaintiff. That conclusion was criticised by Gillard J in Li & Anor v Herald & Weekly Times Ltd.[56] His Honour said that ‘if an imputation is proven to be defamatory of the plaintiff, it is that defamatory sting which the fair comment defence is pleaded to meet’.[57] He said also that ‘it is not until the tribunal of fact decides what is or is not defamatory that the defence of fair comment is to be considered. [It] is a defence to the defamatory sting or stings found by the tribunal of fact.’[58]
[55](2001) 3 VR 619.
[56]Citation at n 33.
[57](2005) 13 VR 211, 221 [52].
[58]Ibid 222, [53].
Aga Khan was principally concerned with the plaintiff’s entitlement or otherwise to the separation of fact and comment, not with identification of the substance of the alleged comment. Anderson No 1 was concerned with identification of the latter,[59] so as to see whether the alleged comment in fact engaged the plaintiff’s case. Anderson No 2 illustrated, as does this case, that the alleged comment will not always do so.
[59]The identification of which will not necessarily reveal the former.
As a postscript I should add, if it is not already evident, that in my respectful opinion Gillard J mistook the effect of Anderson No 1. It did not, contrary to his Honour’s opinion,[60] alter a practice established by Aga Khan.
[60][2005] 13 VR 211, 220 [43].
To conclude that particulars may be ordered of the substance of an alleged comment pleaded by a rolled-up plea does not necessarily mean, of course, that the specific proposition for which Aga Khan has been said to stand is impugned.
In Watt, the plaintiff sought particulars of –
(a) . . . the acts, facts, matters, circumstances and things relied upon to support the allegation that insofar as the first article consisted of statements of fact, the same were true in substance and fact;
(b) . . . the facts therein referred to as being the facts upon which the comment alleged to be fair was based.
It can be seen that the request made by paragraph (a) was akin to the proposed amended head 3 of the plaintiff’s summons in Aga Khan; whilst the request made by paragraph (b) was akin to the request made by the appellant in the present case.
Hedigan J offered this rationale why it would not be proper to order the particularisation sought: in the case of a rolled-up plea, the defendant is confined to the facts stated in the publication. To require particularisation would be to require the defendant to identify the substance of the evidence and the argument to be relied upon at trial.
I think that the validity of the rationale – at least on an all-embracing basis - may be doubted. Consistently with Aga Khan, it could be applied to paragraph (a) of the plaintiff’s request. But as to the request made by paragraph (b), the rationale would sanction a practice which could be quite uneven in its application. There is a big difference between, on the one hand, a publication consisting of a few paragraphs pleaded in extenso by the plaintiff and specifically identified by the defendant in his rolled-up plea as the sole source of fact and comment; and, on the other hand, a publication of some 250 pages which is relied upon by the defendant in a rolled-up plea as the source of relevant fact and comment.
Authorities aside, there has not been much enthusiasm for Aga Khan in Australia. The author of Gillooly’s Law of Defamation in Australia and New Zealand,[61] speaking of the forensic advantages of the rolled-up plea, observes that there is conflicting authority whether particulars should be ordered which differentiate between fact and opinion, and which specify matters relied upon in support of the truth of the factual assertions; and concludes that –
(t)he better view is that the defendant should be required to supply such particulars – the old practice to the contrary is anomalous and should no longer be followed.
[61]Federation Press, 1998, 146.
Aga Khan has also received attention in Canada, both in cases and text writing. In Toronto Star Ltd v Globe Publishing Co[62] and Gouzenko v Doubleday Canada Ltd[63] the importance was emphasised of a party being entitled to know, well in advance of trial, what case must be met. The same approach is commended by the author of Brown, The Law of Defamation in Canada.[64]
[62](1941) 4 DLR 113,119 (Hope J, Ontario High Court).
[63][1983] 34 DR (2d) 306, 310 (Reid J, Ontario High Court).
[64](2nd ed, 1994), [15.8], [19.4(5)] and [20.4(4)].
It is the fact that Toronto Star involved a plea in which the defendant sought to rely, inter alia, upon facts external to the impugned publication, this enabling Hope J to distinguish Aga Khan. Nonetheless, in Gouzenko Reid J concluded that Toronto Star stood in part for the proposition that particulars can be required where general allegations are defended by a rolled-up plea. He added this:[65]
[65][1983] 34 DR (2d) 306, 310.
Furthermore, the interpretation of Aga Khan, supra, to the effect that particulars may not be obtained of a rolled-up plea is entirely contrary to the general tenor of practice in the courts of this province and the principles governing that practice. In Toronto Star Hope J, in a passage I have already set out, states the desirability of particulars in a defamation action, so that a plaintiff may know the case he is to meet at trial. His words made it plain that the desideratum was not confined to defamation actions: it was so for all actions. Thus, so far as possible, the element of surprise at the trial should be removed
and
I am not bound by Aga Khan. But beyond that, if Aga Khan is offered for the proposition that by way of a rolled-up plea a defendant can escape the obligation to frame a statement of defence in such a way as to disclose the case defendant proposes to show against him at trial; an obligation that lies on defendants in all other kinds of action, I say unhesitatingly that would, in my opinion, contravene both principle and practice and I see no justification for it.
The argument that defendant should not be required to distinguish between fact and comment because that would pre-empt the jury’s authority is, in my respectful opinion, specious. If that argument were to succeed it would obviate the need for particulars in any action.
It is further clear that Aga Khan interpreted in the way proposed by defendant was thought for years to be out of step with principle in England. That is the effect of comments made by judges and writers and the fact that finally, in the face of that criticism, the English Rules were amended to provide, as does Order 82/3 above quoted, for particulars of a rolled-up plea.
It was accepted in Aga Khan that, as a matter of general principle, particulars may be ordered for the purpose of ‘ascertaining the nature of [the] opponent’s case’,[66] to ‘define the issues and thereby prevent either party being taken by surprise.’[67] The decision in the case seems to have turned on the proposition that, in the particular circumstances and having regard to the pleadings, the defendants’ case had been sufficiently revealed.
[66][1924] 1 KB 675, 679, (Bankes LJ).
[67]Ibid 684 (Sargant LJ).
The Rules of Court upon which the appellant relied in argument in this appeal – Rules 13.07(1)(b) and 13.10(1),(2)(c) of Chapter 1 are in my opinion most in point – are entirely consistent with the general principle recognised in Aga Khan. The question is: how do they apply in the circumstances of a particular case? In my opinion, that question is not answered by observing on the one hand that a particular rule of court of general application was made after the decision in Aga Khan; or, on the other hand, that Victoria has not made a rule specifically obliterating Aga Khan. It should rather be recognised that Rules exist which, having regard to the individual circumstances of individual cases, authorise the making of orders for the provision of particulars of any matter which has been pleaded.
I earlier expressed the conclusion that Aga Khan should not be followed if it is to be understood as standing for the proposition that an order cannot be made for particularisation of the facts relied upon where a defendant relies upon the rolled-up plea. I expressed the conclusion also that whether an order for provision of particulars should be made will depend upon the pleadings in the particular case. Those conclusions rest upon the following considerations.
First, a request for particularisation of the facts upon which alleged comment is founded might be regarded as being no different in substance to a request to identify what is fact and what is comment in an impugned publication. That is how the matter was viewed in Aga Khan. On that assumption, the decision in Aga Khan should be regarded as being squarely in point.
Second, the pleadings which arose for consideration in Aga Khan did not demand a statement of principle extending to every case of reliance upon the rolled-up plea. The defendants, by their defence and by specific concession in argument, tied themselves to the facts which were to be found in the confined words pleaded by the plaintiff. That is to be contrasted with paragraph 11 of the amended defence in the present proceeding.
Third, there is at least reason, in a case such as the present, to conclude that Aga Khan should not be given effect so as to preclude an order for particularisation of the facts upon which the defendant relies. There is a strong bias in favour of the live issues in a proceeding being clearly exposed well before trial. It is reflected by a number of rules of court. This purpose would be frustrated, in a case such as that presently before the Court, if an order for particulars was not able to be made, and made.
Fourth, that leaves untouched the broader question whether Aga Khan is sound in principle in any instance where the rolled-up plea is relied upon. I consider that the decision has been the more readily open to justified criticism because on its face it was expressed in unconfined terms. In my opinion, the correct position is that particulars of the facts relied upon by a defendant should or should not be ordered depending upon the circumstances of the case, by which I mean the state of the pleadings.
Fifth, refusal to make an order for particulars of the kind which the plaintiff sought to obtain by his proposed amended head 3 in Aga Khan, and which the plaintiff sought to obtain by paragraph (a) of her request in Watt, is able to be justified, arguably, as refusal of an attempt to seek the evidence or argument on which the defendant would seek to rely at trial. But that rationale does not support, I consider, the main point which was decided in Aga Khan.
Sixth, there have been substantial developments in the common law of
defamation in this country since Aga Khan was decided, such that particularisation of the substance of comment, and of the alleged matter of public interest, may now be ordered. It is consistent with those developments – although not an inevitable consequence - that particulars might be ordered, in some cases, of the facts relied upon by a defendant.
The present case, as I said earlier, is in my opinion one in which an order for particulars ought be made if paragraph 11 of the amended defence be not struck out. That is because, most importantly, the respondents by their rolled-up plea specify ‘the book’ as the source of the statements of fact upon which they rely. The appellant, in my opinion, should be entitled to particulars of what are said by the respondents to be the pertinent facts set out in the nearly 250 pages of the book. I think that the need for particularisation is not the less only because the appellant by his statement of claim particularly identifies certain passages in the book as the source of the pleaded imputations. For the appellant does not confine himself to those passages as the source of those imputations; and neither do the respondents, by their rolled-up plea, confine themselves to whatever facts are there set out.
Conclusion
In my opinion the appeal should be allowed, and an order made striking out paragraph 11 of the amended defence. There should be no misunderstanding about the effect of such an order, which in my opinion would reflect established principles of pleading. It would not affect the appellant’s obligation, at trial, to prove that he was defamed in the meanings (or permissible variants) for which he contends. Nor would it deny the respondents the opportunity to argue that the publication did not convey any of the pleaded imputations, or permissible variants thereof.
NEAVE JA:
For the reasons given by Ashley JA, I agree that the appeal should be allowed.
REDLICH JA:
I have had the advantage of reading in draft the reasons of Ashley JA. I agree that the pleaded fair comment does not meet the sting of the appellant’s pleaded imputations or a permissible variation thereof and that for the reasons he gives the appeal should be allowed and an order made striking out that portion of the respondent’s pleading.
I also agree with Ashley JA that such part of the decision in Aga Khan that is regarded as authority for the proposition that a party who relies upon a rolled-up plea is not obliged to provide particulars of the facts it relies upon, should not be followed. The maintenance of such a proposition is inconsistent with the Rules of Court and current notions of justice which require a party to provide sufficient particulars of the nature of their case so as to define the issues and prevent the other party from being taken by surprise.
---
11
9
0