Hore-Lacy v Cleary & Anor
[2008] VSC 215
•24 June 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9049 of 2005
| DYSON HORE-LACY | Plaintiff |
| v | |
| PHIL CLEARY AND ALLEN & UNWIN PTY LTD | Defendants |
---
JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 June 2008 | |
DATE OF JUDGMENT: | 25 June 2008 | |
CASE MAY BE CITED AS: | Hore-Lacy v Cleary & Anor | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 215 | |
---
DEFAMATION – Pleading of fair comment – Whether fact or comment – Whether comment sufficiently identified – Whether facts supporting alleged comment truly stated – Effect of untrue fact – Whether matter of public interest.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Maher | Lennon Mazzeo |
| For the Defendants | Dr M Collins | Gibsons Solicitors Pty Ltd |
HIS HONOUR:
This is an application by the defendants to amend their defence to plead fair comment in response to a claim against them in defamation.
The plaintiff is a member of the Victorian Bar, and is a Senior Counsel. The proceeding is based on passages contained in a book written by the first defendant, entitled “Getting Away with Murder: The True Story of Julie Ramage’s Death”. The book was published by the second defendant. It is concerned with the killing of Julie Ramage by her estranged husband, James Ramage, on 21 July 2003, and the subsequent trial of Ramage on the charge of murder. At that trial Ramage was acquitted of murder, but found guilty of manslaughter, on the grounds that the jury was not satisfied beyond reasonable doubt that Ramage was not provoked at the time at which he intentionally killed his wife.
In his initial statement of claim, the plaintiff pleaded two innuendos, namely, that he had manufactured a defence of provocation for James Ramage thereby perverting the course of justice, and, secondly, that he had, in combination with Ramage and/or Stephen Pica (a solicitor), agreed to manufacture a defence of provocation for Ramage, thereby perverting the course of justice. The plaintiff pleaded those meanings as both false and true innuendos. The true innuendos were alleged to have derived from knowledge, of the readers of the book, of the law of the State of Victoria relating to provocation as a defence to a charge of wilful murder, and of the law relating to the crime of perverting the course of justice.
By their original defence, dated 6 December 2005, the defendants denied the innuendos pleaded by the plaintiff. They also pleaded a “rolled up” plea of fair comment, alleging, in the usual form, that if the book was defamatory of the plaintiff, then insofar as it consisted of statements of fact, those statements were true in substance and in fact, and insofar as they consisted of expressions of opinion, they were fair comment on a matter of public interest. The relevant matter of public interest was specified as “whether James Ramage should have been entitled to rely on a defence of provocation to the charge of wilful murder brought against him”.
Subsequently, the plaintiff, by summons, sought leave to amend his statement of claim, and sought orders that the rolled up plea be struck out, or that the defendants provide particulars of the substance of the comment referred to in that plea.
That application was heard by Kellam J (as his Honour then was). His Honour gave the plaintiff leave to amend his statement of claim to add two further imputations. His Honour declined to strike out the defence of fair comment, but directed that the defendants provide particulars, specifying the substance of the comment which was the subject of the plea of fair comment.[1]
[1]Hore-Lacy v Cleary & Ors [2006] VSC 341R.
Accordingly, the plaintiff delivered an amended statement of claim. It pleaded, as false and true innuendos, that 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.
The defendants filed an amended defence, by which they denied the imputations pleaded in the amended statement of claim. They pleaded an amended version of the rolled up plea of fair comment as follows:
“11.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.
PARTICULARS
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.”
In response, the plaintiff applied for an order striking out that paragraph of the amended defence, and, alternatively, an order for further particulars specifying the parts of the book in which the defendants alleged the comment was made, and particulars as to the facts upon which the alleged comment was said to be based. That application came before Williams J. The plaintiff argued that the rolled up plea of fair comment should be struck out for a number of reasons, including (inter alia):
(a)That the meanings, which were said to be the comment, could only be allegations of fact, rather than matters of comment;
(b)That in any event the comment did not meet the sting of the libel alleged in the amended statement of claim;
(c)That paragraph 11 of the amended defence did not plead a proper matter of public interest.
Williams J rejected each of those submissions, and so refused the application of the plaintiff to strike out the rolled up plea of fair comment. Her Honour also refused the application by the plaintiff for further particulars of the defence.[2]
[2]Hore-Lacy v Cleary & Ors [2006] VSC 421R.
The plaintiff appealed from the decision of Williams J. The Court of Appeal allowed the appeal, and made an order striking out paragraph 11 of the amended defence.[3] The leading judgment of the Court of Appeal was delivered by Ashley JA. His Honour held that, even if it could be assumed that paragraph 11 pleaded one or more matters of public interest, and pleaded a comment as distinct from an allegation of fact, the subject matter of the comment was so remote from the pleaded innuendos as to fail to meet the sting of the imputations alleged by the plaintiffs. His Honour summarised those conclusions in the following paragraph:
“24. 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. 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.”
[3]Hore-Lacy v Cleary & Anor [2007] VSCA 314.
Although his Honour held that paragraph 11 of the amended defence should be struck out, and although he doubted the likelihood of the defendants thus being able to re-plead a fair comment defence, nonetheless he gave consideration to the question whether an order might be made, in an appropriate case, for particulars of the statements of facts to which a rolled up plea refers. His Honour concluded that, notwithstanding the decision of the Court of Appeal in Aga Khan v Times Publishing Company[4], a court might, in an appropriate case, make an order for particulars of the facts upon which an alleged comment, which is pleaded to be fair comment, was based.
[4][1924] 1 KB 675.
The defendants now seek to plead a defence of fair comment in a different form to the defence which was struck out by the Court of Appeal. The defence is still pleaded as a rolled up plea. The matter of public interest, on which the comment is said to be based, is stated to be “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”. Particulars are provided to the plea. The first particular sets out the substance of the alleged comment as follows:
“(i) The substance of the comment was that the plaintiff, in combination with Stephen Pica, assisted James Ramage to manufacture a defence of provocation and thereby to pervert the course of justice, and in so doing committed a breach of barristers’ ethics and an act of unsatisfactory professional conduct.”
In sub-paragraph (ii) of the particulars, the defendants specify the parts of the book on which they rely in support of the comment pleaded by them. Those passages are the three passages relied upon by the plaintiff in support of the imputations relied on by him, together with a passage from pages 74 to 75 of the book, and a further passage from page 241 of the book.
In sub-paragraph (iii) of the particulars the defendants set out the facts contained in the book on which they assert that the comment was based. That sub-paragraph states:
“(iii)The comment was based on the following facts which were true in substance and in fact and which were stated in the book, namely:
(A)Ramage killed his wife and buried her in a shallow grave on 21 July 2003 (pages 30 to 33, 39 to 40);
(B)Later the same day, Ramage telephoned the plaintiff and had a conversation with him lasting about one minute and 21 seconds (page 50);
(C)As a result of that conversation, the plaintiff agreed to meet Ramage in the gaming room of the Harp Hotel in Kew (page 50);
(D)Later that evening the plaintiff had a conversation with Ramage in the gaming room at the Harp Hotel in Kew (page 52) in the course of which he telephoned a solicitor, Stephen Pica, before moving to another table (page 52);
(E)Later the same evening Ramage, accompanied by Pica, turned himself into the Police (page 53);
(F)Ramage gave a statement to the Police which formed the foundation of a defence of provocation (pages 60 - 63); and
(G)The plaintiff refused to answer the First Defendant’s questions about what he had discussed with Ramage at the Harp Hotel on 21 July 2003 (pages 74 - 75).”
Pausing there, it is clear that the comment, now sought to be pleaded by the defendants, is in essence an amalgamation of the four imputations alleged by the plaintiff. Thus, the comment now alleged by the defendants meets the sting of the plaintiff’s imputations, and the proposed amendment, to that extent, cures the defect identified by the Court of Appeal in respect of the comment which the defendants had previously sought to plead.
Submissions
The plaintiff has resisted the application by the defendants to amend their defence on other grounds. In particular, Mr Maher, who appeared on behalf of the plaintiff, made the following submissions:
(1)He submitted that the passages relied on by the defendants are not capable of being considered matters of comment, rather than allegations of fact. Mr Maher pointed out that the book is presented as being the true story of the death of Julie Ramage. The allegations contained in the book, that the plaintiff fabricated, or assisted in the fabrication of, Ramage’s defence of provocation, are not presented as a deduction, but as allegations of fact.
(2)Allied to that submission, Mr Maher pointed out that the allegation made against the plaintiff was not of some generalised illegality, but, rather, of a specific criminal act, namely, assisting in the fabrication of a defence to be used in Court, and thus of conspiring to pervert the course of justice. Mr Maher submitted that, as a matter of authority, such an allegation could only be an allegation of fact, and not an expression of opinion. He relied on the decision of the High Court in Channel 7 Adelaide Pty Ltd v Manock[5]. He submitted that, in reality, the defence now sought to be pleaded by the defendants is a defence of justification under another guise.
(3)Mr Maher further submitted that the defence could not be sustained, because facts referred to in the book, and relied upon in support of the alleged comment, are demonstrably untrue. In particular, Mr Maher pointed to passages in the book which state that in his record of interview Ramage deliberately refrained from referring to the plaintiff by his surname, and that at Ramage’s trial the plaintiff’s surname had not been referred to. Mr Maher tendered in evidence parts of the transcript of the proceeding, and the transcript of the recorded interview of the police with Ramage, in both of which the plaintiff was referred to by his surname. Mr Maher therefore submitted that even if the allegations of which the plaintiff complained were expressions of opinion rather than statements of fact, they were not based on facts truly stated by the first defendant, and thus the defence of fair comment must fail.
(4)Further, Mr Maher submitted that, if the allegations in the book of which the plaintiff complains are comment, a jury could not conclude that the comment was “fair”, in the sense that it was a comment which a fair minded person could honestly hold.
(5)Mr Maher further submitted that the defendants had not pleaded a matter of public interest in respect of which the alleged comment had been made.
(6)Finally, Mr Maher referred to the history of the pleading. He pointed out that, after Kellam J required the defendants to particularise the comment upon which they relied, they had set out a different comment to that on which they now rely. Mr Maher drew my attention to the comments of Ashley JA in the Court of Appeal, to which I have referred above, to the effect that the respondents “… having pleaded 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”. Mr Maher submitted that as a matter of discretion I should refuse the application to plead a defence of fair comment based on a different comment to that addressed by the Court of Appeal.
[5](2007) 241 ALR 468.
In response, Dr Collins, who appeared for the defendant made the following submissions:
(1)The parts of the book, complained of by the plaintiff, are capable of being reasonably considered, by a jury, to constitute comment, and not allegations of fact. The passages on which the plaintiff relies are contained in a book which is almost 250 pages in length. Dr Collins submitted that the book is very much a polemic, and would be understood to be such by the reader of it. The reader would readily appreciate that the first defendant was not present at the conversation, between the plaintiff and Ramage, in which the first defendant alleged that the provocation defence was fabricated. Nor does the book assert that the first defendant gained knowledge of the contents of that conversation from any person who was a witness to it. Rather, the central thesis of the book was that the account given by Ramage to the police was contrived and fabricated. Dr Collins asserted that, based on the facts set out in the particulars, the reader would appreciate that the assertion, that the plaintiff had assisted in the fabrication of Ramage’s provocation defence, could only have been a deduction by the first defendant, and not an assertion of fact by him. Thus, Dr Collins submitted that a jury could reasonably conclude that readers of the book would understand that the allegations, relied on by the plaintiff, are comment rather than statements of fact.
(2)Further, Dr Collins submitted that there is no authority which supports the proposition, relied on by Mr Maher, that an allegation of specific criminality may only be a statement of fact, and not an expression of opinion. Each case depends on its own circumstances. In a particular case, an assertion of specific criminality may appear to the ordinary reasonable reader to be the product of a process of deduction by the publisher of the defamatory statement, rather than an allegation of fact.
(3)Dr Collins then submitted that if the book is incorrect in stating that the plaintiff’s surname had been suppressed in the record of interview of Ramage and at his trial, that is irrelevant, because that fact was not relied on by the first defendant to support the comment of which the plaintiff makes complaint in this proceeding.
(4)Dr Collins further submitted that a jury could reasonably conclude that the comment is “fair”, in the sense that it is a comment which a fair minded person could honestly hold. The opinion was based on the seven facts set out in the particulars. While the reasoning process of the author, based on those facts, might be open to criticism, nonetheless a jury could reasonably conclude that a fair minded person might honestly have drawn the inference, relied on by the first defendant, based on those facts.
(5)Dr Collins further submitted that it was open to a jury to conclude that the comment, of which the plaintiff makes complaint, was made on a matter of public interest. From a narrower point of view, the relevant public interest comprised the question of the participation of a member of Senior Counsel in the concoction of a defence of provocation by a man who has intentionally killed his wife. From a wider perspective, the relevant public interest resided in the issue of the conduct of an officer of the Supreme Court in the administration of justice.
(6)Finally, Dr Collins submitted that I should not exercise my discretion to deprive the defendants of a right to rely on the defence of fair comment. From the outset, the defendants have pleaded a defence of fair comment. That defence was upheld by Williams J. It was the plaintiff who chose to appeal to the Court of Appeal. Any delay in the proceeding has been brought by the plaintiff’s challenge to the defence. The defendants have acted reasonably in response to those challenges, and should not be disentitled from relying on a defence reasonably open to them.
The book
In order to be able to rule on this application, I have read the book which is the subject of the proceedings. The book commences by describing the background relationship between James and Julie Ramage. At the time of her death Julie Ramage was estranged from her husband. On the day of her death, she met James Ramage for lunch at their home in Balwyn at James Ramage’s request. At some time during or after the lunch, Ramage brutally beat and strangled his wife. He then placed her dead body in the boot of his vehicle, and drove to Arthur’s Creek. There he buried her. He returned home, met his son Matthew, and went to a local restaurant for dinner with him. Ramage then telephoned the plaintiff and requested to meet him. They met at the Harp Hotel, Kew shortly after 8.00 pm. Subsequently, they were joined by a solicitor, Mr Stephen Pica. After three hours Pica and Ramage left the Harp Hotel, and Ramage handed himself into the Boroondara Police. He told them where he had buried his wife. At 4.45 am on the next morning he participated in a video recorded interview at the offices of the Homicide Squad at St Kilda Road, Melbourne. In that interview, Ramage claimed that he had been provoked by his wife to the extent that he had “lost it”, and proceeded to kill her. That interview formed the basis of the provocation defence which resulted in his acquittal for murder.
The central theme of the book is that the account given by Ramage to the police was a complete fabrication. The plaintiff claims that the book alleges that he, together with Pica, assisted Ramage to concoct his account of what had occurred, in order that he be able to avail himself of a provocation defence. The plaintiff claims that that allegation is made in three passages of the book, which are set out in the statement of claim. Those passages are as follows:
(a)At page 57 of the book, the first defendant describes how Ramage gave himself into the police. It then states that Matthew Ramage made a statement to the police which raised “many questions” in that it did not refer to Julie Ramage’s visit to the home on the day of her death. The passage relied on by the plaintiff is as follows:
“If Julie had belittled Ramage at lunch then surely he’d have told his son during the dinner at Colombo’s. It might even have been the time to say he had killed Julie. Was it because it was a fabrication that Ramage didn’t tell his son Julie had ridiculed him and the renovations? At the time of the dinner Ramage could hardly have known that such a story might form the basis of a provocation defence. Surely he only learned about the mysterious laws of provocation when he met Hore-Lacy and Pica?”
(b)The second passage is at page 214, where the author describes the submissions made by Ramage’s counsel, Mr Philip Dunn QC, in mitigation of sentence. The passage relied on by the plaintiff is as follows:
“If Dunn thought the claim that Ramage had three hours to fabricate a case against his wife was crap, then his opening address was nothing short of bullshit.”
(c)The third passage relied on by the plaintiff occurs where the author describes the sentencing remarks made by the trial judge to Ramage. The author had compared the case of Ramage with that of Mazin Yasso, who, on his re-trial for murder, had unsuccessfully relied on a defence of provocation. The relevant passage is as follows:
“The more he read, the worse Justice Osborn’s judgment sounded. Ramage, he said, had ‘contacted a friend and handed himself into police’. No mention that the friend was a top QC or that his name was Dyson Hore-Lacy. Three weeks of evidence and not a single mention of Hore-Lacy’s name in any transcript. No mention by the judge that Ramage had spent the evening in the Harp Hotel with a lawyer. After Mazin Yasso killed his wife he was found in a park smoking his last cigarette. A poor, part time cleaner, Yasso had no lawyer to help him manufacture a provocation defence. So much for the claim that everyone is equal before the law!”
In the amended defence on which the defendants now seek to rely, they point to two further passages in the book. The first is a lengthy passage at pages 74 to 5 of the book. That passage relates to discussions which the first defendant had with the plaintiff at the time of the trial. The passage is lengthy. The relevant part reads:
“My discussions with Dyson at the time of the trial were a game of cat and mouse. He was clearly unhappy discussing his conversations with the killer during the time at the Harp. When I asked why he didn’t give evidence he said that if the police thought he had something to offer they’d have spoken to him. Maybe! The truth is somewhat less clear, for Ramage carefully avoided identifying Dyson Hore-Lacy as the ‘friend by the name of Dyson’ he was ‘going to see’. At no point in his police interview does he exactly say who ‘Dyson’ was or that he was a barrister.
The moral conundrum aside, one important question still rattled in my head. ‘What would you have done if you had bumped into Jane Ashton[6] or one of Julie’s friends had rung looking for James on the night of the murder?’ I asked. ‘Sorry Phil, I can’t help you’ he told me. The question was one of a number I emailed Dyson in relation to what had happened at the Harp. None of them involved him offering me privileged information. The best he could say was ‘I am not sure why the info is necessary unless you are thinking of doing a chapter on legal ethics’.
… While Dyson and then Pica talked with Ramage, Jane Ashton was going out of her mind. Was she asking too much to think Julie’s friend might have said ‘sorry James you’re on your own mate’?.”
[6]The twin sister of Julie Ramage.
The second additional passage on which the defendants rely is at page 241 of the book. There the author stated that most wife killers ring the police and give themselves up. But “not so James Ramage”. The passage on which the defendants rely then states:
“’Dyson, I’ve got some bad news, I’ve killed Julie’. If only it had been that simple.”
Principles
This is an application by the defendants to amend their pleading. Ordinarily, an amendment to pleadings will be allowed, unless the amendment is futile, or unless the amendment would result in prejudice to the other side which could not be remedied by an order for costs or by some other relief.[7] The plaintiff does not resist the application on the basis that he would be prejudiced by the proposed amendment, but on the ground that the amendment would be futile, in the sense that if the plea of fair comment, now sought to be relied on, had appeared in the original pleading, it would be struck out.[8] This action will be tried before a jury. Accordingly, the amendment should only be disallowed, if I were to conclude that a jury, properly instructed, could not reasonably conclude that the defamatory material, complained of by the plaintiff, constituted fair comment on a matter of public interest.
[7]Howarth v Adey [1996] 2 VR 535, 542 (Winneke P).
[8]Horton v Jones(No 2) (1939) 39 SR (NSW) 305, 310 (Jordan CJ).
The principles relating to the defence of fair comment are simply stated, but are not so easy of application. Basically, it is a defence to an action for defamation for a defendant to prove that the publication complained of constituted fair comment on a matter of public interest. That defence can be defeated by proof that the defendant was actuated by malice in making the publication. The main components of the defence of fair comment are:
(a)The matter complained of must be comment, as distinct from a statement of fact. In particular, although the matter may consist of or include inferences of fact, it must be recognisable as a comment.
(b)The comment must be based on facts which are true, and which are either stated in the publication, or referred to or identified in it.
(c)The comment must be fair, in the sense that it must express an opinion which any fair minded person could honestly hold on the basis of the proven facts;
(d)The comment must be on a matter of public interest.[9]
[9]Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 54 [25] (Gillard AJA).
The plaintiff, in opposing this application, has submitted that the passages of the book, which he alleges are defamatory of him, are not capable of fulfilling any of the above elements of a defence of fair comment.
Fact or comment
The first question is whether a jury could reasonably conclude that the material, alleged by the plaintiff to be defamatory of him, constituted expressions of opinion, as distinct from assertions of fact. In New South Wales v IG Index PLC[10] Nettle JA identified the principles which are relevant to such a question as follows[11]:
“[48] The first point is that a statement may qualify as a comment if it appears to be a deduction, inference, conclusion, criticism, judgment, remark or observation come to by the writer or speaker from facts stated or referred to by him, or in the common knowledge of the person writing or speaking and those to whom the words are addressed, and from which his conclusion may reasonably be inferred.
[49] Secondly, it is necessary to bear in mind that in order to be justifiable as a fair comment, the comment must appear as comment and not be so mixed up with the facts that the reader or listener cannot distinguish between what is report and what is comment. As I have said, the notion of comment includes a statement which may reasonably be inferred to be a comment, but if a defendant merely makes a general reference to a person’s conduct, or mixes up what he believes to be fact and comment, he runs the risk of a jury saying in general to any defamatory statement either that it would reasonably infer it to be a statement of fact and that its truth is not proved, or that it would reasonably infer it to be a comment and cannot form the substratum or basis for further comments.
[50] Thirdly, and for present purposes most importantly, it is for the jury or other tribunal of fact at trial, and not for a judge as upon interlocutory application, to decide whether what has been published is a statement of fact or an expression of opinion. It is only if the comment is reasonably capable of being regarded only as a fact, or only as a comment, that a trial judge may take the question away from the jury, or perhaps strike out a relevant pleading.
[51] Fourthly, the question of whether a statement is one of fact or comment is to be decided having regard to the actual language used and the context in which it appears or is made. As Lord Ackner observed in Telnikoff[12], it is not always easy to draw the distinction between an expression of opinion and an assertion of fact. The very same words may be one or other according to their context. So, for example, a statement that someone has acted dishonestly or corruptly or been guilty of corruption and mismanagement or had his hands in the till may be statements of fact in one context and statements of opinion in another.”
[10](2007) 17 VR 87; [2007] VSCA 212.
[11]Ibid, paras [48] and following (citations omitted).
[12]Telnikoff v Matusevitch [1992] 2 AC 343, 358.
It is important to note the use of the phrase “if it appears” in the first principle outlined by Nettle JA. In order to qualify as a comment, the defamatory statement must not just be a deduction or inference; it must “appear” to the recipient to be a deduction or inference. In particular, the test is whether the defamatory statement would appear, to the “ordinary reasonable” recipient, to be a statement of opinion, rather than an assertion of fact. Thus, in Channel 7 Adelaide Pty Ltd v Manock[13] Gummow, Hayne and Heydon JJ, stated the test as follows:
“The question of construction or characterisation turns on whether the ordinary, reasonable ‘recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered’ – not ‘an exceptionally subtle’ recipient, or one bringing to the task of ‘interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at’.”[14]
[13](2007) 241 ALR 468; [2007] HCA 60.
[14]Ibid, [36] (Citations omitted).
Allied to the first point identified by Nettle JA is the second principle, namely, that in order that the defamatory material be justifiable as fair comment, the comment must not be so mixed up, and intermingled, with the facts relied on by the publisher, that the reader or listener cannot readily distinguish between what is an assertion of fact and what is an expression of opinion by the publisher. In Manock’s case, Gleeson CJ stated that principle as follows:
“So long as a reader (or viewer, or listener) is able to identify a communication as a comment rather than a statement of fact, and is able sufficiently to identify the facts upon which the comment is based, then such a person is aware that all that he or she has read, viewed or heard is someone else’s opinion (or inference, or evaluation, or judgment). The relationship between the two conditions mentioned in the previous sentence is that a statement is more likely to be recognisable as a statement of opinion if the facts on which it is based are identified or identifiable.”[15]
[15]Ibid, [4].
That principle has been a recurrent theme in a number of authorities in relation to the defence of fair comment. One of the most clear expositions of it is contained in the judgment of Jordan CJ in Goldsborough v John Fairfax & Sons Limited & Anor[16], where his Honour stated:
“For the defence to succeed, it is essential that the whole of the words in respect of which it is relied on should be comment, and that they should be fair, and that they should be on a matter of public interest. It must be indicated with reasonable clearness by the words themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact; because statements of fact, however fair, are not protected by this defence. In other words, it must appear that they are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts.”
[16](1934) 34 SR (NSW) 525, 531.
Similarly, in Clarke v Norton[17] Cussen J stated:
“A writer or speaker can, if he chooses, first state his facts specifically as facts, and then add – ‘these are my deduction from them or my comments on them’, and proceed to state his deductions or comments. If, however, he merely makes a general reference to a person’s conduct, or mixes up what he believes to be fact and comment, he runs the risk of a jury saying in regard to any defamatory statement either that it would reasonably be inferred to be a statement of fact, and that its truth is not proved, or that it would reasonably be inferred to be a comment, and cannot form the substratum or basis for further comments.”[18]
[17][1910] VLR 494, 506; approved on appeal, Norton v Clarke (1911) 11 CLR 13.
[18]See also Smith’s Newspapers Limited v Becker (1932) 47 CLR 278, 303 (Evatt LJ); Conservation Council of SA (Inc) & Ors v Chapman & Ors (2008) 87 SASR 62, [320] (Besanko J); London Artists Ltd v Littler [1969] 2 QB 375, 395 (Edmund Davies LJ).
In considering the application of the first two principles stated by Nettle JA in New South Wales v IG Index PLC[19] (above), it is relevant to bear in mind the rationale for the distinction between statements of fact and comments in the law of defamation. Where a defendant publishes a defamatory statement of fact, it may only be justified if the defendant establishes that those facts are true. On the other hand, where a defendant, on facts truly stated or identified, makes a defamatory comment about a plaintiff, the comment may be justified as “fair”, provided that it is a comment which a fair minded person might honestly hold. Thus, the law of defamation permits a considerable latitude to those who express their opinion, honestly, on facts truly stated or identified by them. The position is otherwise for those who choose to make defamatory assertions of fact about an individual. The rationale for the distinction, and for the greater latitude shown to those who make comments, is that where the speaker or writer truly states facts, and then expresses an opinion on those facts, the readers or listeners can properly judge for themselves the validity of the opinion. By contrast, where a defamatory allegation of fact is made, the reader or listener of it is presented with that fact at face value, and has no means of judging it for themselves.
[19](2007) 17 VR 87; [2007] VSCA 212.
That rationale was expressed by Fletcher Moulton LJ in Hunt v Star Newspaper Co Limited[20], in a passage referred to by Gummow, Hayne and Heydon JJ in their joint judgment in Manock[21]. Fletcher Moulton LJ stated:
“If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based. But if fact and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer, though not necessarily set out by him. In the one case the insufficiency of the facts to support the inference will lead fair-minded men to reject the inference. In the other case it merely points to the existence of extrinsic facts which the writer considers to warrant the language he uses … Any matter therefore which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment.”[22]
[20][1908] 2 KB 308, 319.
[21](2007) 241 ALR 468; [2007] HCA 60, [41], [45].
[22]See also Myerson v Smith’s Weekly Publishing Co Limited (1923) 24 SR (NSW) 20, 27 (Ferguson J); John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164, [35] (Giles JA); Herald and Weekly Times Limited v Popovic (2003) 9 VR 1, 55 [263] (Gillard AJA).
In determining whether a jury might reasonably conclude that the passages in the book, relied on by the plaintiff, are expressions of opinion, rather than allegations of fact, two further points need to be borne in mind. First, much depends upon the precise language used, and the context in which the allegedly defamatory statement appears. That point is made clear in the decision of the Court of Appeal in New South Wales v IG Index PLC, to which I have referred. In that case, the plaintiffs carried on a business of spread betting in New South Wales. They sued the defendant in respect of allegedly defamatory statements made by a spokesman for the New South Wales Gaming Minister to a journalist in the employment of the Australian Newspaper. In those remarks the spokesman alleged that the plaintiff had “flouted” NSW gaming laws by operating in that State, and had illegally advertised its services in the State. He concluded by stating “We have no doubt it is illegal and we have told ASIC”. The plaintiffs applied to have defences of fair comment, relied on by the defendant, struck out on the basis that they were bad in law. The Court of Appeal upheld the defendant’s appeal, and held that the defence as a fair comment should not be struck out. In essence, Nettle JA (who delivered the leading judgment on this issue) held that, bearing in mind the language used by the spokesman, and the context in which the words were spoken, it was reasonably open for a jury to conclude that the ordinary reasonable reader might understand the words spoken by the spokesman to be expressions of opinion, as distinct from statements of fact.[23]
[23](2007) 17 VR 87; [2007] VSCA 212, [60].
That decision should be contrasted with the decision of the High Court in Channel 7 Adelaide Pty Ltd v Manock.[24] In that case the plaintiff was a forensic pathologist who had conducted the post mortem on the deceased body of a young woman who was alleged to have been murdered by her fiancé, one Keogh. At his trial in 1995 the plaintiff gave evidence for the prosecution, and Keogh was convicted of murder. In March 2004 the defendant television station broadcast a “promotion” for its “Today Tonight” show, in which the presenter stated:
“The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one Court to the next.”
[24](2007) 241 ALR 468; [2007] HCA 60.
The defendant filed a defence to the plaintiff’s claim, pleading fair comment. The plaintiff applied to have that defence struck out. On appeal, the High Court held that the first, second and fourth statements, contained in that promotion, could only be statements of fact. The third sentence (that the data, dates and documents “don’t add up”) might be more than a statement of fact, but any comment contained in it was “inextricably intermingled” with the factual matter asserted by the speaker, to disentitle the defendant to rely on a defence of fair comment. Accordingly the High Court held that the defence of fair comment, relied on by the defendant, should be struck out of its pleading. In reaching that conclusion the High Court took into account the precise language used in the promotion, and its context.
The second point which is relevant for this case is contained in the joint judgment of Gummow, Hayne and Heydon JJ in Manock’s case, namely, that it is more difficult for a viewer of television to distinguish fact and comment than it is for a person reading printed material. Their Honours[25] quoted, with approval, the dictum of Blackburn CJ in Comalco Ltd v Australian Broadcasting Corporation[26]:
“It is obvious that a television viewer receives a succession of spoken words and visual images, which he is unable to have repeated for the purpose of reflection or clarification; whereas a reader of printed material normally has it all before him at will, and has unlimited facilities for re-reading. In my opinion it is important in the case before me, when considering whether there is material which can be perceived to be comment, as distinct from fact, but based upon stated fact, to remember that the viewer sees and hears the material simultaneously, and only once.”
[25]Ibid, [37].
[26](1985) 64 ACTR 1, 40.
Bearing those principles in mind, the first question which I need to determine is whether a jury could reasonably conclude that the ordinary reasonable reader of the book would understand that the parts of the book, alleged by the plaintiff to be defamatory of him, were comments by the author, in the sense of being an opinion expressed on facts truly stated in the book or truly referred to by the author.
On this issue, the competing submissions of counsel, to which I have already referred, can be simply stated. Dr Collins submitted that a jury could conclude that the parts of the book, relied on by the plaintiff, were comment, for two main reasons. First, he pointed to the question mark used by the author in the first passage relied on (at page 57), where the author asserts that “surely” Ramage “only learned about the mysterious laws of provocation when he met Hore-Lacy and Pica?” Dr Collins submitted that the use of the question mark was sufficient to identify the statement contained in that passage as an expression of opinion (or an argument), rather than as a statement of fact. Secondly, Dr Collins submitted that the reader would be well aware that the author was not present at the critical conversation between the plaintiff and Ramage at the Harp Hotel, and, further, that the author did not purport to quote from any person who was a witness to that conversation. Thus, he submitted, it would be open to a jury to conclude that the ordinary reader would understand that the assertion by the author, that the plaintiff had assisted Ramage to fabricate his provocation defence, was a deduction or inference drawn by the author from the seven facts set out in the particulars to the amended defence, and which are contained in the text of the book.
By contrast, Mr Maher emphasised that the book, by its title, expressly purported to be the “true story of Julie Ramage’s death”. From the beginning to the end, the book is presented as the true account, not only of the circumstances in which Julie Ramage died, but also of the circumstances in which Ramage successfully relied on a defence of provocation, notwithstanding what the author asserts to be the truth of the circumstances of his wife’s death. Mr Maher submitted that, in that context, the passages, on which the plaintiff relies, are presented as assertions of fact, and not as expressions of opinion. Thus, he submitted, a jury could not reasonably conclude that those passages constituted comment by the first defendant, as distinct from assertions of fact by him.
In order to decide this question, I have read the book, as suggested by counsel for the plaintiff. In doing so, I have borne in mind that it is for a jury to decide whether the material complained of by the plaintiff is a statement of fact or opinion.[27] The question which I must decide is whether a jury could reasonably conclude that an ordinary reasonable reader would understand the material, complained of by the plaintiff, to be one of comment rather than fact.
[27]See also O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166, 173-174 (Barwick CJ, McTiernan, Menzies and Owen JJ); Pervan v North Queensland Newspapers Co Ltd ((1993) 178 CLR 309, 317.
The “ordinary reasonable” reader or listener, referred to in Manock’s case, is a hypothetical figure well known to the law of defamation. It is by reference to the same person that the law determines the meanings of words which are alleged to be defamatory. In assuming the viewpoint of such a person, the material complained of by the plaintiff must be construed, not as a lawyer, but as a layman.[28] The ordinary person is someone who is not “avid for scandal”, and who is neither unusually suspicious nor unusually naïve.[29] Such a person does engage in a degree of loose thinking, and reads between the lines[30].
[28]Lewis v Daily Telegraph Limited [1964] AC 234, 277 (Lord Devlin).
[29]Ibid, 259 to 260, (Lord Reid).
[30]Morgan v Odhams Press Limited [1971] 1 WLR 1239, 1245 (Lord Reid); Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, 165 (Hunt CJ); Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, 372-3 (Samuels JA).
In these proceedings the plaintiff relies on three passages in the book, which I have already set out.[31] It is the third passage, at page 217, which, it would seem, is the most critical. That passage commences by asserting that the plaintiff was not referred to by his surname either at Ramage’s trial or in his record of interview. It also states that the trial judge, in passing sentence on Ramage, made no mention that Ramage had spent the evening at the hotel with a lawyer. It then states that Mazin Yasso, after he killed his wife, was found in a park smoking his last cigarette. It concludes by stating that Yasso “had no lawyer to help him manufacture a provocation defence”.
[31]Paragraph [20].
Standing alone, if a jury accepts that that passage bears the meaning that the plaintiff manufactured, or assisted Ramage to manufacture, the defence of provocation relied on by Ramage, that assertion could only be construed as an allegation of fact. It is not couched as an opinion. No facts are stated, or referred to, upon which such an opinion might be seen to be based. Assessed in isolation, it could only be construed as a statement of fact, and not an expression of opinion.
Of course, the issue which I must decide is not so simple. The passage at page 217 is contained in a book of almost 250 pages. The defendants submit that the passage is an expression of opinion, based on a number of facts, stated earlier in the book, and which are identified in the particulars to the amended plea. Accordingly, it is necessary to examine the nature and content of the book, and, particularly, the context in which the statement, complained of by the plaintiff, is to be found.
In my view, when the book is read as a whole, and the passage at page 217, to which I have referred, is construed in that light, a reasonable jury could only come to the conclusion that the statement relied upon by the plaintiff in this case is an assertion of fact, and not a comment. As noted by Mr Maher, the title to the book is “Getting Away With Murder”, and its subtitle is “The True Story of Julie Ramage’s Death”. Consistently with that title, the book proceeds to give a factual account of how Julie Ramage was killed, of the events between her death and Ramage’s arrest, and of Ramage’s trial. The author presents those events as facts. While the book does contain argument and strong expressions of opinion by the author – and even, as contended by Dr Collins, “polemic” – that argument, and those opinions, are presented as based on an assertion, of fact, that Ramage concocted his defence of provocation, and that he was assisted in doing so by the plaintiff at the Harp Hotel.
The book commences by portraying, vividly and in detail, the circumstances in which Ramage killed his wife. It describes Julie Ramage’s arrival at the former matrimonial home shortly before her death. It quotes, in direct speech, a conversation between Mrs Ramage and a former neighbour. With some interspersed references to events which preceded that day, the book then proceeds to describe, in detail, the meeting between Julie Ramage and her husband. The description of the killing is graphic. The author then depicts (pages 28 to 50) the steps taken by Ramage to dispose of his wife’s body. At page 50, the author states how Ramage returned home, dined with his son at a restaurant, and then contacted the plaintiff on the telephone. It quotes, in direct speech, what the author presents as the conversation between Ramage and the plaintiff, in which the plaintiff agreed to meet Ramage at the Harp Hotel. The book portrays how, while steps were being taken by the deceased woman’s family to try to find her, Ramage proceeded to meet the plaintiff at the Harp Hotel. It states (page 52) that after they met there, the plaintiff telephoned a solicitor, Stephen Pica. It asserts that if Ramage chose not to give evidence at his trial and be cross-examined, the only version of the alleged murder available to the prosecution would be the interview he would have with the police. It then states: “the next three hours were spent ensuring that his interview would not be incriminating. By the end of the night Ramage knew what exactly what to say once the cameras were activated in the Homicide Offices”.
The book then proceeds to describe how “the killer built then rehearsed his case at the pub” while the police, who were nearby, were unaware that Ramage was on his way to the Boroondara Police Station. It states “what a difference it might have made if they happened upon Ramage before Pica got to him. Would he have dispensed with the lies and simply told the truth? And what was the truth?” On the next page (page 54) the book recites that after three hours, “Ramage was ready to tell that story”. The book then describes the efforts which were being made to find Julie Ramage. It states that “while Ramage rehearsed his defence a few blocks away at the Harp” one of her close friends was thinking of her (page 56).
Pausing there, it is clear that, thus far, the book presents the key events on which it is based as a factual account of what occurred. The author does not suggest to the reader that the chronicle of those events, in the book, derives from any process of deduction or surmise by him. The description of the killing, its aftermath, and the meeting at the Harp Hotel, is presented as a factual account. I do not consider that a jury could reasonably conclude that the ordinary reader, to whom the book was directed, would regard the description of what occurred at the Harp Hotel as an expression of opinion by the author, rather than as a statement of fact. Thus, in my view, a jury could only reasonably conclude that, at this stage of the book, the author was presenting to the reader the allegation that Ramage, with the plaintiff, fabricated his defence of provocation at the Harp Hotel, as a statement of fact, and not as a deduction or inference expressed by him.
It is in this context that the first passage[32], about which the plaintiff makes complaint, appears, at page 57 of the book. In essence, the point made by the author, in that passage, is that Ramage did not tell his son, at dinner, of the visit to the house that day by his mother, or how she (allegedly) belittled him during that visit, because Ramage did not learn of his provocation defence until he met the plaintiff and Mr Pica later that evening at the Harp Hotel. On its own, that passage may be argumentative. However, it immediately follows the factual narrative of the events, including the description of what happened at the Harp Hotel. In this context, its function, self-evidently, is to reinforce the author’s account of how Ramage, with the plaintiff’s assistance, fabricated his provocation defence at the Harp Hotel before he surrendered to the police.
[32]Above, para [20].
Immediately following that passage, the book alleges that Ramage had manipulated his son Matthew as to what to tell the police in his statement. The book then (page 60 and following) sets out extracts of the version of events given by Ramage to the police. It states that Ramage’s confession “followed the script. It was the kind of rambling story, studded with feigned remorse and memory lapses, that a defence lawyer loves”. The author then states: “When you run a careful eye over Ramage’s offerings, there’s a stench of deceit that no smartarse lawyer can hide”. (Pages 60 to 61).
The book then describes Julie Ramage’s funeral. It sets out how Ramage managed to manipulate where the funeral was to be held, and what his son said in the eulogy which he delivered at the church. It refers briefly to the committal proceedings. The author then describes, in some detail, the trial of Ramage (pages 110 to 180). The underlying theme is that, in the course of that trial, the rules of evidence, and the principles of provocation, were manipulated by the defence so that the truth was not revealed at the trial. Having referred to the jury verdict, acquitting Ramage for murder and convicting him of manslaughter, the author then refers to the announcement by the Attorney-General that legislation would be enacted to abrogate the defence of provocation in murder. The author also describes other cases in which the provocation defences had been exploited by men who had brutally murdered their wives, fiancés or girlfriends.
The author then returns to the Ramage case. He describes the plea made on behalf of Ramage in mitigation of sentence by his counsel, Mr Philip Dunn QC. He depicts how Dunn had decried recent publicity, which (according to Mr Dunn) had sought to undermine the effect of the jury’s verdict. It is at that point that there appears the second passage relied on by the plaintiff (at page 204), to which I have referred.[33]
[33]Para [20].
After a short interlude, the book then describes the reasons for sentence pronounced by the trial judge, Justice Osborn, in passing sentence on Ramage. He describes how the judge explained the basis on which the accused had been acquitted of manslaughter, and how he, as the sentencing judge, must sentence the accused in a manner consistent with the jury’s verdict (pages 214 and following). It is in that context that there appears, at page 217, the passage of the book, to which I have referred, commencing with the words “the more he read, the worse Justice Osborn’s judgment sounded”, and concluding with the statement that, unlike Ramage, Mazin Yasso “had no lawyer to help him manufacture a provocation defence”.
As I have already stated, standing alone, that allegation is presented as an unequivocal statement of fact. There is nothing about it from which a jury could reasonably conclude that the ordinary reader would understand that it was an expression of the author’s opinion, rather than an assertion of fact by him. The analysis of the book, which preceded that passage, and which I have set out above, reveals that it is not adventitious that the passage, at page 217, is couched as a statement of fact. Rather, so framed, it is consistent with, and part and parcel of, the manner by which the author has presented the key events described in the book. By its style, language and structure, the book presents, as a factual account, its version of the killing of Julie Ramage, the disposal of her body by Ramage, the meeting between the plaintiff and Ramage at the Harp Hotel, the alleged fabrication of Ramage’s provocation defence, and Ramage’s trial. Accordingly, a plain reading of the book reveals that the context in which the passage on page 217 occurs can only reinforce the conclusion that the ordinary reader of the book would understand that the passage at page 217, on which the plaintiff relies, is an allegation of fact, and not an expression of opinion.
That conclusion is reinforced by the subtitle to the book. It is also fortified by the fact that, after the conclusion of the text (at page 243) there appear “End Notes”, which state that “the events recreated in this book are taken from statements provided to the police by the individuals involved and, where possible, from conversations with the people involved”. The “End Notes” set out a list of transcripts and conversations relied on by the author. On the next page, entitled “Acknowledgements”, the author concludes (page 248):
“This book attempts to expose the betrayal. It’s also an attempt to tell the truth about how Julie really died and what kind of person she was. Unconstrained by the laws of evidence, Getting Away With Murder literally does tell the true story. To that extent the fictitious story of how Julie Garrett died is shown for the legal lie it is.”
In my view, those concluding remarks make it plain, beyond argument, that the assertion by the author, as to what went on at the Harp Hotel, was a statement of fact. At no point does the author present the assertion, that Ramage’s defence was concocted at the Harp, as an expression of opinion by him, or as a deduction by him. On the contrary, the book is presented as being the real “truth” of the circumstances of the killing of Julie Ramage, and of Ramage’s acquittal of her murder. It may be that the author formed the views, which he did, as a deduction, based on the series of facts set out in the particulars to the amended defence. However, the book does not identify those facts as underpinning the allegation by him that the defence of provocation was concocted at the Harp Hotel. Thus, I do not consider that a jury, properly instructed, could reasonably conclude that the allegation, that the plaintiff assisted Ramage to fabricate his provocation defence, was a comment by the first defendant, and not an assertion of fact.
Even if, contrary to that conclusion, it could be said that the allegation that the plaintiff assisted Ramage to manufacture his defence of provocation could be a comment, rather than a statement of fact, the author makes no attempt to identify for the reader what are the relevant matters of fact and what are the expressions by him of such opinion. In other words, even if the allegation that the plaintiff assisted Ramage to manufacture his defence could be characterised as a comment, it is so intermingled with the facts set out in the text of the book, as to be indistinguishable from those facts. Bearing in mind the underlying rationale for distinguishing between statements of fact and comment, I do not consider that a jury could reasonably conclude that the ordinary reasonable reader of the book would consider that the allegation, relied on by the plaintiff, was an opinion, the validity of which the reader could assess for himself or herself from facts identified by the author as forming the basis for that opinion.
For those reasons, in my view, a jury could not reasonably conclude that an ordinary reasonable reader of the book would understand the allegation, that the plaintiff had assisted Ramage to concoct his defence of provocation, to be a statement of the writer’s opinion, as distinct from an allegation of fact. Accordingly, the defence of fair comment relied on in the further amended defence proffered by the defendants is futile, and the application for leave to amend should be refused.
Whether facts truly stated
I also consider that the plaintiff has demonstrated that there is a second basis for concluding that the plea, sought to be made in the further amended defence, would be futile. If the allegation, that the plaintiff assisted Ramage to fabricate his defence of provocation, is a statement of opinion rather than fact, in my view a jury could only conclude that it is not based on true facts.
In argument, Mr Maher referred to the passage at page 217 of the book, to which I have referred. In that passage, the author alleges that in his record of interview Ramage did not mention the plaintiff by his surname, or refer to the fact that he was a Queen’s Counsel. The author also alleges that throughout the evidence at the trial there was no mention of the plaintiff’s surname in the transcript. The plaintiff has placed in evidence before me a copy of the transcript of Ramage’s record of interview, and also a copy of excerpts of some of the transcript of Ramage’s trial. In fact, in his record of interview, Ramage did, at one stage, identify the plaintiff by his surname, in answer to a question by the police. Equally, in a number of parts of the transcript of the trial, the plaintiff is referred to by his surname. Thus, the assertion to the contrary, contained at page 217 of the book, that the plaintiff’s identity was concealed, is incorrect.
It is trite law that, in order that a defence of fair comment succeed, the defamatory comment must be based on facts which are true or which are protected by privilege.[34] That principle is strictly applied, so that if the defamatory comment is based on any fact which is not truly stated, the defence of fair comment must fail. Thus, in Digby v Financial News Ltd[35], Lord Collins MR stated:
“Comment, in order to be fair, must be based upon facts, and if a defendant cannot show that his comments contain no misstatements of fact, he cannot prove a defence of fair comment. The usual way to begin such a plea is by asserting that the facts on which the comment is based are true, that is, that the defendant has made no misstatements in formulating the materials upon which he has commented. If the defendant makes a mistake of any of the facts upon which he comments, it at once negatives the possibility of his comment being fair. It is therefore a necessary part of a plea of fair comment to show that there has been no misstatement of facts in the statement of the materials upon which the comment was based.”
[34]London Artists Ltd v Littler [1969] 2 QB 379, 375 (Edmund Davies LJ); New South Wales v IG Index PLC [2007] VSCA 212, [52]; Goldsborough v John Fairfax & Sons Limited & Anor (1934) 34 SR (NSW) 524, 532 (Jordan CJ).
[35][1907] 1 KB 507 to 508; see also Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309, 334 (McHugh J).
Similarly, in Kemsley v Foot[36] Lord Porter stated:
“In a case where the facts are fully set out in the alleged libel, each fact must be justified and if a defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence.”
In Herald & Weekly Times Limited v Popovic[37], Gillard AJA referred to that statement of the law as identifying “the guillotine effect of untrue facts”.
[36][1952] AC 345, 357 to 358.
[37](2003) 9 VR 1, 56 [270].
Dr Collins submitted that, insofar as there may have been an error of fact stated by the author in respect of the non-disclosure of the identity of the plaintiff in the record of interview and in the evidence at Ramage’s trial, that fact was not relied upon by the first defendant, in alleging that the plaintiff had assisted Ramage to manufacture his defence of provocation. He submitted that any concealment of the identity of the plaintiff was demonstrably irrelevant to the allegation of the fabrication by Ramage, with the plaintiff’s assistance, of the defence of provocation.
I do not accept that submission. If, contrary to my conclusions above, the allegation that the plaintiff had helped Ramage to manufacture his provocation defence, was a comment rather than an allegation of fact, it is significant that such a comment was made in the same paragraph in which, and immediately after, the author alleged that the plaintiff’s surname and position as a Queen’s Counsel had been concealed in the record of interview and at trial. If the allegation that the plaintiff assisted Ramage to fabricate his provocation defence was a comment, then the primary fact apparently pointed to by the author to support that assertion is the concealment of the plaintiff’s identity in Ramage’s interview and at his trial. As a matter of logic, that fact would not be coincidental or irrelevant to the assertion that the plaintiff had assisted in the manufacture of the provocation defence. Rather, the author was asserting that Ramage was at pains to conceal, both from the police, and then from the jury, the knowledge that he had had an experienced Queen’s Counsel assist him to put together his defence of provocation, in order to enhance the credibility, and apparent spontaneity, of the account which he gave to the police in his record of interview.
Thus if, contrary to my conclusions above, a jury could reasonably conclude that the statement, complained of by the plaintiff in this case, is a comment rather than an allegation of fact, in my view a jury could only conclude that that comment was based (inter alia) on the alleged fact that Ramage had intentionally concealed the plaintiff’s identity both from the police and at trial. Accordingly, if the statement complained of by the plaintiff is capable of constituting a comment, it could not be capable of constituting fair comment, since it was based on facts which were not truly stated.
For those reasons, I have reached the conclusion that a defence of fair comment, as contained in the proposed further amended defence, could not be accepted by a jury. Accordingly, it is only necessary for me to deal briefly with the remaining three points argued by counsel. In short, the plaintiff submitted that, if I were to conclude that the publication complained of by the plaintiff was comment rather than fact, and if it was based on facts truly stated, nevertheless I should reject the amendment on the grounds:
(a)That no jury could reasonably conclude that such comment was fair.
(b)That the comment was not made on a matter of public interest.
(c)In any event, in the exercise of my discretion I should reject the defence.
For reasons which I shall state shortly, I do not consider that any of those three points would have precluded me from permitting the amendment sought by the defendants, if I had concluded that a jury could reasonably have considered that the publication, complained of by the plaintiff, otherwise constituted comment by the defendants based on facts which were truly stated.
Whether alleged comment fair
I turn first to the question as to whether a jury might conclude that the alleged comment was “fair”. In this context, the test of fairness was appropriately described, 120 years ago, by Lord Esher MR in Merivale v Carson[38], in the following terms:
“The question which the jury must consider is this – would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said?”[39]
[38](1887) 20 QBD 275, 281.
[39]See also New South Wales v IG Index PLC [2007] VSCA 212, [53] (Nettle JA); John Fairfax Publications Pty Ltd v O’Shane [2005] NSWCA 164, [16] (Giles JA).
The question whether a comment is fair is essentially an issue for the jury. If the alleged comment in this case were based on the seven facts identified in the particulars to the amendment sought by the defendants, that comment would seem to involve a substantial “quantum leap” of logic. Nonetheless, I do not consider that it would not be open to a jury to reasonably conclude that the comment was fair, in the sense defined above. Taking into account the broad parameters of the concept of fairness in that context, it would be a matter for the jury to determine, on all the facts, whether that comment was “fair”.
Public interest
Further, if the defence of fair comment were otherwise available to the defendants, I do not consider that the application for amendment should be rejected, on the grounds that the comment was not made on a matter of public interest.
In general, the question whether a comment was made on a matter of public interest is an issue to be determined by the trial judge, and not by the jury.[40] However, the answer to that question may depend on facts which need to be established at the trial of the proceeding. Indeed, in the course of submissions Mr Maher accepted that that may be so in this case. Accordingly, if the matter, complained of by the plaintiff, were otherwise fair comment, it would only be appropriate for me to rule against the defence at this interlocutory stage, if, on any view, it were inconceivable that it might have been made on a matter of public interest.
[40]South Hetton Co Ltd v North Eastern News Association Ltd [1894] 1 QB 133, 141, 143 (Lopes LJ); Jones v Skelton [1963] 1 WLR 1362, 1378.
In the course of argument, reference was made to what has been described as the “wider” and the “narrower” definitions of public interest.[41] The former is contained in the often cited passage in the judgment of Lord Denning MR in London Artists Ltd v Littler[42], where his Lordship stated:
“There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.”
[41]Cf John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364, [133] (McColl JA).
[42][1969] 2 QB 375, 391.
The “narrower view” is contained in the joint judgment of Dawson, McHugh and Gummow JJ in Bellino v Australian Broadcasting Corporation[43], in which their Honours stated that at common law “a subject of public interest” was:
“… understood in the law of defamation to refer to the conduct of a person engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion.”
[43](1996) 185 CLR 183, 220.
Notwithstanding that description of “public interest”, the Court, in Bellino, accepted that the discussion of the conduct of any person participating in the administration of justice or public affairs would be a matter of public interest.[44] In particular, their Honours noted:
“… under the common law any member of the public could comment on the conduct of the lawyers participating in a criminal or civil trial, the conduct of a judge or magistrate in dismissing or upholding a claim or the evidence of witnesses. Similarly, when the common law courts spoke of political matters or the administration of public affairs or institutions as subjects of public interest for the purposes of the law of fair comment, they were speaking of the conduct of individuals participating in those activities as constituting subjects of public interest.”[45]
[44]Ibid, 221.
[45]Ibid, 218; citations omitted.
In the further amended defence, the matter of public interest is alleged to be “whether James Ramage should have been entitled to rely on the defence of provocation to the charge of wilful murder brought against him and the role of the legal practitioners who communicated with Ramage shortly before he turned himself into the police”. If the “narrower” view, as described above, were adopted, I consider that it would be arguable that the conduct of the plaintiff, in advising Ramage shortly before his arrest, was conduct which was sufficiently related to Ramage’s criminal trial, to constitute a matter of public interest. If the “broader” definition of public interest were adopted, then it is arguable that, as a member of Senior Counsel, and a member of the Victorian Bar, the plaintiff participates in the administration of justice, and that his conduct in that capacity is a matter of public interest. I note that those views are consistent with the conclusions of Williams J in the previous application.[46]
[46]Hore-Lacy v Cleary & Ors [2006] VSC 421R, [54].
Thus, at this interlocutory stage, I would not have concluded that the defamatory matter complained of could not have been on a matter of public interest, if I had been otherwise satisfied that there was an arguable defence of fair comment available to the defendants as pleaded in their proposed further amended defence.
Discretion
Finally, I should indicate, that if I had concluded that a jury could reasonably find that the publication, complained of, was fair comment on a matter of public interest, I would have allowed the defendants to amend their defence to include that plea. The plaintiff has not pointed to any prejudice which he would suffer as a result of such amendment. It is true that the defendants have, hitherto, proffered an amended defence, by which they purported to plead a different comment than that which they now rely upon. However, that should not preclude the defendants from further amending their defence, should that defence be capable of succeeding before a jury. Accordingly, if I had considered that the defence sought to be pleaded by the defendants was not futile, I would not have exercised my discretion against allowing that amendment.
Conclusion
For the foregoing reasons, I am of the opinion that a jury could not conclude that the defamatory material, complained of by the plaintiff, constituted fair comment on a matter of public interest. I have reached that conclusion for two reasons:
(a)I do not consider that a jury could reasonably conclude that the matter complained of was comment, and not an allegation of fact.
(b)I do not consider that a jury could reasonably conclude that the alleged comment was based on facts truly stated by the defendants.
Accordingly, the application by the defendants to amend their pleading to contain that defence should be refused.
7
0