Hore-Lacy v David Syme & Co Ltd
[1998] VSC 96
•1 October 1998
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION
Not Restricted
No. 5747 of 1996
DYSON HORE-LACY Plaintiff v DAVID SYME & CO. LIMITED and PATRICK SMITH Defendants
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JUDGE: HEDIGAN, J. WHERE HELD: MELBOURNE DATE OF HEARING: 10 September 1998 DATE OF JUDGMENT: 1 October 1998 MEDIA NEUTRAL CITATION: [1998] VSC 96
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DEFAMATION - Defendant denying plaintiff's imputations - Defendant justifying words in natural ordinary meaning - Defendant not pleading meanings relied on by defendant - Particulars insufficient - Whether obliged to plead meanings.
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APPEARANCES: Counsel Solicitors For the Plaintiff Mr. A.G. Uren, Q.C. Williams Winter & Higgs For the Defendant Mr. M. Dreyfus Minter Ellison
DYSON HORE-LACY v. DAVID SYME & CO. LIMITED & ANOR
HIS HONOUR:
By writ dated 31st May 1996 the plaintiff commenced a proceeding against the defendants for damages for libel arising from the publication in the Age newspaper of 30th May of an article under the headline "Clubs have no right to mislead, misinform". The second defendant, Patrick Smith, was the author of the published article. The writ was generally endorsed with the claim to which I have referred. Subsequently the plaintiff delivered a statement of claim which was almost immediately amended on 10th July 1996. By his statement of claim, the plaintiff, then the President of the Fitzroy Football Club, a barrister and Queen's Counsel, claimed to have been defamed by the article to which I have referred, a copy of which was annexed to the statement of claim. By paragraph 6 of the statement of claim, the plaintiff pleaded as "the natural and ordinary meaning" of the article a number of imputations. I set them out:
"6. The article in its natural and ordinary meaning meant and was
understood to mean that
(a)
the Plaintiff had told lies concerning the Fitzroy Football Club's financial situation during the radio and television interviews referred to;
(b)
the Plaintiff had treated members of Fitzroy Football Club who attended at their annual general meeting as credulous dupes or fools;
(c)
the Plaintiff had lied to the members of the Fitzroy Football Club who attended at the annual general meeting;
(d)
the Plaintiff had dishonestly misled and misinformed members of the Fitzroy Football Club and supporters concerning plans for the merger of the Club;
(e)
the Plaintiff had deceived members of the Fitzroy Football Club by telling them that no decision would be made without them having a vote;
(f)
the Plaintiff had been guilty of sharp practice in obtaining proxies from shareholders of the Fitzroy Football Club."
There were routine pleadings of loss and damage and other paragraphs dealing with material said to support the claim for exemplary damages which forms part of the plaintiff's claim against the defendants.
By its defence, paragraph 6, the defendant pleaded as follows:
"6. They deny the allegations in paragraph 6. Further, in its natural and ordinary meaning, the article was true in substance and in fact."
The defence went on to plead fair comment on a matter of public interest and qualified privilege. It is not necessary for me to refer to any part of the defence other than paragraph 6.
There were a number of diversions from the prompt and orderly progress of this proceeding connected with the insolvency of the Fitzroy Football Club and the role of the administrator. In December of 1996 the plaintiff delivered a request for further and better particulars of the defendants' defence, including paragraph 6. Paragraph 1 of the request was as follows:
"1. UNDER PARAGRAPH 6
(a) Set out each fact relied on to support the allegation that the matter complained of, in its natural and ordinary meaning, is true and identify each such meaning said to be true. (b) Set out each fact relied on to support the allegation that the matter complained of is true in substance and in fact insofar as it meant: i. the plaintiff had told lies concerning the Fitzroy Football Club's financial situation during the radio and television interviews referred to in the amended statement of claim;
ii. the plaintiff had treated members of Fitzroy Football Club who attended at their annual general meeting as credulous dupes for fools;
iii. the plaintiff had lied to the members of the Fitzroy Football Club who attended at the annual general meeting;
iv. the plaintiff had dishonestly misled and misinformed members of the Fitzroy Football Club and supporters concerning plans for the merger of the Club;
v. the plaintiff had deceived members of the Fitzroy Football Club by telling them that no decision would be made without them having a vote;
vi. the plaintiff had been guilty of sharp practice in obtaining proxies from shareholders of the Fitzroy Football Club."
On 18th September 1997 the defendants gave further and better particulars of paragraph 6 which ranged over approximately two pages and which I do not here reproduce. However, there was no attempt to relate the twenty-three substantial assertions of fact therein to the form of the Request, each of the ample matters being referred to apparently being intended to refer to all or any of the Requests. Mr. Dreyfus, who appeared for the defendants, appeared to say that this ample provision of the facts said to be in support of paragraph 6 of the defence provided particulars in respect of all of the imputations put forward in paragraph 6 of the statement of claim, or such of them as a reading of the defence particulars might suggest. As will later appear, I regard the form of the further and better particulars of defence as being quite unsatisfactory, both from the point of view of the plaintiff and of the Court in endeavouring to relate the defence of justification, and the facts said to be in support of it, either to the plaintiff's imputations (which are denied) or any meanings contended for by the defence (unspecified and unpleaded).
By summons of 2nd September 1998 the plaintiff sought further and better particulars of paragraph 6 of the defence or that it be struck out. The summons also took up issues of answers to interrogatories. There was a cross-summons of the defendants seeking plaintiff's answers. However, the issue of the interrogatories has been agreed to be postponed until my determination of the principal issue here, which relates to the form of the pleading of paragraph 6 of the defence.
The dispute on this summons is whether or not the defendants are obliged to plead what they contend is the natural and ordinary meaning of the article, which they say they will prove to be true. The plaintiff says that the defendants ought be ordered to state what are the meaning or meanings which they contend are the natural and ordinary meanings. The defendants say that it is sufficient for them simply to deny the plaintiff's imputations and rely upon the natural and ordinary meaning of the words. It seems almost self-evident that since the defendants do not say what the natural and ordinary meanings of the words published in the article are, the provision of the material facts upon which the defendants rely (incorporated in the further and better particulars) in making the allegation that the article in its natural meaning was true does not make it possible to make the connexion. Mr. Uren, Q.C., who appeared for the plaintiff, put the argument simply, contending that the defence did not say what it was that they were justifying. He argued that words are not defamatory in the abstract but only because they bear a defamatory meaning. The defence, even if it totally reject the plaintiff's imputations, must know what is the meaning of the words for which they contend, otherwise they could not assert the words of the article bore a meaning which is true. He said that the modern rules of pleading require the plaintiff to say what are the defamatory meanings which the plaintiff alleges as part of his cause of action, and the modern rules of pleading require a defendant to say what are the defamatory meanings which it allegation as part of its defence for justification. He relied on Gatley on Libel and Slander, 9th ed, 26.20 to 26.22. Kerney v. Optimus Holdings Pty. Ltd. (1976) V.R.399 as indicating the requirements imposed by modern rules on plaintiffs and in respect of the defendants' obligations. See also Gatley, op cit, 27.7 (see the passages in the footnotes on p.688) and the precedent at 937, a reference in Tobin and Sexton, Australian Defamation Law and Practice (25,170) and statements in Kennett v. Farmer [1988] V.R. 991 where the relevant authorities were extensively reviewed. He argued the giving of the particulars to justify the meaning said to be true cannot assist the plaintiff to know whether the particulars justify the imputation or not unless the plaintiff knows, by the defendant being required to specify them, what the meanings to be relied on are. He submitted that the plaintiff was entitled to call evidence in the case which might go beyond merely controverting the defendants' particulars of the allegation of truth, but the plaintiff could not know what other evidence might be needed to be called unless he knew what imputations or meanings were being sought to be justified. He said the plaintiff was entitled to know what case the defendants would put so that the plaintiff can both understand and meet that case. This he said was the object of the rules of pleadings, referring to Orders 13.07, 13.10 and 23.02(c) and (d) of the Rules of this Court.
Mr. Dreyfus for the defendant contended that the rules of pleadings do not require a defendant in every case to plead the defamatory meanings which it asserts arise from the allegedly defamatory publication. It was said the English practice, as revealed in the references to Gatley relied on by the plaintiff, were not an appropriate guide to the situation in Australia and particularly in Victoria and should be treated with caution. He said the English rules provided for a procedure for preliminary determination by a judge or whether or not the words complained of are capable of bearing a particular meaning or meanings. As to this, as I have said in a number of decisions, there is nothing in Barclay v. Cox [1968] V.R. 664 that inhibits a court either before trial or at trial determining whether the words complained of are capable of bearing particular meaning or meanings. It will be necessary to refer to this aspect later. See also National Mutual Life Association of Australasia v. General Television Corporation Pty. Ltd. (1989) V.R. 747. Mr. Dreyfus argued that the defendants were obliged to do no more in the defence or by particulars of justification than make clear the matters which would be relied on at trial in establishing the justification defence and that the defendants were not obliged to plead the meanings before trial. He submitted that the article was relatively short. The meanings that might be extracted were for the jury to determine, as was the question of whether the defamatory imputations allegedly arising from the article were justified. The plaintiff was entitled to know no more than the facts. It will be necessary for me to examine some of the authorities relating to this aspect and I will. I should state at the outset that it appears to me that, however cogently it may have been argued in the 19th century or even in the first substantial part of this century in respect to defamation matters that it was not necessary for the parties to specify the meanings which they contend the published words impute or connote, the stream of modern authority is substantially against the proposition. In most jurisdictions, or at least many, cases of this kind fall under judge management. This case is in such a List. Ultimately, unless there is some powerful reason to the contrary, outlines of the evidence of proposed witnesses will be required to be exchanged, as will lists of proposed witnesses. Courts of the land, overburdened with substantial litigation frequently argued at inordinate and irrelevant length, have said on many occasions in the last decade that the practices of past times must yield to the necessities of prompt and frugal disposition of litigation in the face of economic necessities and the shrinking of resources made available by government for the disposition of litigation.
Mr. Dreyfus's submissions appear to be driven by a desire to maintain the freedom to adapt the meanings contended for at trial. The defendants in this case are prepared to say that the plaintiff's meanings are wrong. They are prepared to refer generally to the facts upon which they might rely for justification. But they do not want the plaintiff to know what they are going to say the words mean. It would appear, in my evaluation of the authorities, that the modern practice and burden obliges the plaintiff to identify the meanings for which he or she will argue (whether or not he or she is bound by them) unless the published words are so clear that there could be no argument about the meaning or meanings the words convey, e.g. an allegation that the plaintiff was a murderer. There appears to be little logic and less justice in a system which would permit a defendant to justify meanings which it will not specify. Indeed, in his submissions Mr. Dreyfus never did articulate any reason for not pleading the defendant's contention as to the meaning of the article. Essentially what he submitted was that the defence had an option about pleading the meaning for which it contended, that it might plead or might not plead it at its option, and it chose not to. He claimed that many of the authorities which appeared to suggest that the meanings should be pleaded were all in the context of the consideration of the specific "Polly Peck" defence and did not support the plaintiff's contention. He also argued that since the meanings which might be derived from the article were for the jury in the case to determine, and whether they were justified, the pleading of meanings was unnecessary. Further he argued that under the law of Victoria the defendants were not obliged to assert meanings. Cf. Barclay v. Cox (supra) confirmed by National Mutual Life v. G.T.V., (supra). As I have had occasion to say elsewhere, in my view this misconceives the effect of the two cases referred to. The fact that the meaning of the words is a matter for the jury, which may be at large in finding the true meaning among the possible meanings that is left to them by the judge, does not mean the plaintiff or defendants should not be required to assert the meanings they contend for in the pleadings. In my view, it cannot be doubted that the Court may, either before trial or at trial, remove from the consideration of the jury meanings which the Court determines could not possibly arise, so as to be left to the jury, in a case of trial by jury. It is clear from Mr. Dreyfus's submissions that the defence will contend at the trial that the article had a number of meanings and that they were true. In effect he contended that although the opposite party was entitled to know how his case was being put, that was fulfilled by the provision of the particulars. He also appeared to accept that the form of the particulars given lacked organization and precision. Mr. Uren contended that it was illogical to suggest that the defendant should be permitted to justify unspecified meanings. Put another way, he argued that the plaintiff was being told, through the particulars, that something was going to be proved to be true but was not told what it was that was to be proved.
I turn to some of the authorities that are germane to the present issue. Mr. Dreyfus in support of his argument referred to Watkin v. Hall (1868) 3 Q.B. 396 from the judgment of Blackburn, J. at 402 in the course of which, in the course of discussing innuendo and defamation law the statement was made "It follows ... that the defendant may plead it justification as to the words without the meaning innuendo and also as to them without the meaning". I note that the dictum of Blackburn, J. in Watkin v. Hall was disapproved by the Court of Appeal in the U.K. in Polly Peck (Holdings) Plc & Others v. Trelford & Ors [1986] Q.B. 1000 but is supported in other cases, including the reasons of Brennan, C.J. and McHugh, J. in Chakravarti v. Advertiser Newspapers Ltd. 72 A.L.J.R. 1085. He also referred to statements of Kennedy, L.J. in Wootton v. Sievier (1913) 3 K.B. 49 where he said the plaintiff "ought to be enabled to go to trial with knowledge not merely of the general case he has to meet, but also the acts which it is alleged he has committed and upon which the defendant intends to rely as justifying the imputation". Mr. Dreyfus contended that the specifics of the meaning alleged on behalf of the defendant were not required but merely the general nature of the case being made. In Dorman & Anor v. Good [1918] V.L.R. 269, an action for slander in which the plaintiff had pleaded that the words imputed fraud, the defence denied the plaintiff's alleged meaning claiming as an alternative that the words in their natural and ordinary signification were true in substance and fact. He gave particulars under that defence. Those particulars were relevant only to the meaning of the plaintiff's imputations. In that case Irvine, C.J. held that it was not permissible for the defendant to deny the innuendo and then under a plea of justification to give particulars relevant only to the meaning which he had denied and that the particulars objected to should be struck out. He appeared to suggest that had the defendant simply not admitted the plaintiff's imputation and then pleaded that in their natural and ordinary meaning they were true, it would have been permissible. However, by the 1970s the courts in the United Kingdom and Australia had moved much more clearly to a position in which the plaintiff was obliged to give particulars of the meanings on which the plaintiff would rely as arising from the relevant part or parts of the publications sued on stating cases where the words referring to a plaintiff were capable of only one defamatory meaning. See Alsop v. Church of England Newspaper Ltd. (1972) 2 Q.B. 161 and D.D.S.A. Pharmaceuticals Ltd. v. Times Newspapers Ltd. (1973) 1 Q.B. 21 in which the Court of Appeal stated:
"In the first place, there ought to have been an innuendo pleaded. This article is capable of many different meanings - so many that it was necessary for the fair conduct of the trial that there should be pleaded a 'popular' or 'false' innuendo, or whatever you like to call it. In that innuendo the plaintiff should set out the meaning or meanings which they say the words bear. That is necessary, not only for the fair conduct of the trial, but also to enable the defendants to know what to plead, whether to plead justification or fair comment or to apologize. ... It is necessary for the plaintiffs, even when they rely on the natural and ordinary meaning of the words, to plead an innuendo setting out what they say is the natural and ordinary meaning of the words."
In Kerney v. Optimus Holdings Pty. Ltd. [1976] V.R. 399, Menhennitt, J. approved of this statement and the authorities to which it referred. Menhennitt, J. expressed preference for the use of the word "imputations" and went on to say:
"I repeat that it is unnecessary for me to decide in this case whether the imputations should be pleaded or supplied in particulars. The Court of Appeal decision is, however, clearly authority for the conclusion that in most, if not all, cases the innuendoes relied upon by the plaintiff should be specified by him."
In Lucas-Box v. News Group Newspapers Ltd. (1986) 1 W.L.R. 147 (also reported at (1986) 1 All.E.R. 177) the particulars given by the defendant in justification failed to specify the meaning of the words said to be justified. Ackner, L.J. for the Court stated:
"It is axiomatic that the function of pleadings is to define the issues between the parties, so that both the plaintiff and the defendant know what is the other side's case and thus everyone, counsel judge and jury, are able to focus upon the real nature of the dispute. Although to some it may seem a startling observation, we can be no reason why libel litigation should be immune from ordinary pleading rules.
During the last dozen or so years, as a result of the views expressed by Lord Devlin and Lord Hodson in Lewis v. Daily Telegraph [1964] A.C. 234, 273 and 281, and adopted by this Court in Alsop v. Church of England Newspaper Ltd. (1972) 2 Q.B. 161 and D.D.D.S.A. Pharmaceuticals Ltd. v. Times Newspapers Ltd. [1973] 1 Q.B. 21, it has become the settled practice for the plaintiff, where the meaning of the words complained of is not clear and explicit, to plead the meanings which he says the words bear. This enables the defendant to know what case he has to meet and to prepare his defence accordingly. Such a practice is further of considerable assistance to the Court since it thus clearly provides to the trial judge the meanings upon which he must rule and decide in whether the words published are capable of being so understood. The general question which has risen in this case is the reverse of the coin, namely whether a defendant who pleads justification must stake the meaning which he seeks to justify."
After dealing with another aspect he went on to say:
"... Whatever may have been the question to date, in future a defendant who is relying on a plea of justification must make it clear to the plaintiff what is the case which he is seeking to set up. The particulars themselves may make this quite clear, but if they are ambiguous then the situation must be made unequivocal."
The Court ordered a pleading that made clear the defendant's argued meanings.
In Viscount De L'Isle v. Times Newspapers Ltd. (1988) 1 W.L.R. 49 (also reported at (1987) 3 All.E.R. 499), the members of the Court of Appeal took a further step in the matter, May, L.J. stating (59):
"The defendant on the other hand only seeks to justify a limited interpretation of the relevant article but in my opinion has even then failed to make clear precisely what its case is. I see no reason why today it is impossible to hope that a new wind of realism cannot blow through the pleadings and practice in this particular field of jurisprudence. In the modern context it ought to be a field on which openness on both sides is the order of the day."
Mustill, L.J. (60) had more doubt as to whether or not the defendant could be obliged to plead the meaning but accepted that:
"The essence of the decision in Lucas-Box's Case - and here it may have broken new ground - is that the justification must be pleaded so as to inform the plaintiff in the court precisely what meaning the defendant will seek to justify."
Malcolm, L.J. appeared to agree with May, L.J.
In Prager v. Times Newspapers Ltd. [1988] W.L.R. 77, the division within the Court of Appeal about the issue of the obligation of the defendant to plead meaning appears to emerge more clearly. Purchas, L.J. (86) stated:
"At the risk of adding confusion to clarity ... it is still open to a defendant to plead so as to justify any reasonable meaning of the words published which a jury, properly directed, might find to be the real meaning. In doing this he does not have to identify the precise meaning for which he contends; but he must make clear to the plaintiff what case he proposes to make in precise detail. This may well, and in most cases probably will, disclose one or more of the meanings of the words which he is prepared to justify; but he is not obliged to plead specifically any meaning for which he contends."
With all respect I venture the observation that the phrase "must make clear to the plaintiff what case he proposes to make in precise detail" may throw greater burdens on the defendant than the obligation to plead the meanings for which the defendant contends. One assumes that this states an obligation on the defendant to supply particulars, even if not requested,as part of indicating the case proposed to be made. Whether the defendant should then be free of the obligation to plead the meaning for which he, she or it contends is not made clear. Nicholls, L.J. in Prager appeared to be uneasily conscious of the tension between the statements of the Court of Appeal in Lucas-Box and Mustill, L.J. in Viscount De L'Isle. After reproducing them, he stated:
"Thus as I understand it, a somewhat subtle distinction is drawn between (a) the meaning of the words complained of for which the defendant contends (as the practice stands at present, the defendant is not obliged to plead that meaning and (b) the meaning of the words which, if it is the true meaning of those words, the defendant will seek to justify (that is a meaning which the defendant must now spell out sufficiently to enable the plaintiff to know what case he has to meet)."
Nicholls, L.J. went on to criticize the particulars in that they did not set out with clarity the alternative meaning which the defendant would seek to justify and, in so far as that was the meaning, that they were true.
In Kennett v. Farmer [1988] V.R. 991, Nathan, J. confronted the authorities dealing with the previously prevailing convention that the defendant did not have to plead the meaning for which he contended taking the view that the statements of O'Connor, L.J. in Polly Peck, referring to the Court of Appeal's ruling in Lucas-Box, had the effect of reversing the optional position that might have been the view in Lucas-Box to a positive obligation to plead, citing from O'Connor, L.J.'s observations in Polly Peck on Lucas-Box to the following effect:
"That case has decided that a defendant who pleads justification must state the meaning which he seeks to justify. It follows from that case and this that in future where differences of meaning are proposed by the parties the issue as to the possible meaning of the words will be confined to those pleaded."
Nathan, J. concluded that the effect of the Court of Appeal's decision in England was at the lowest to conclude that the defendant was entitled to plead the meanings of the defamatory words he seeks to justify and probably obliged to plead them. He concluded that the reasons that led to the alteration of the English practice were equally compelling in Victoria and found some support for his view in O. 13.02.3 in that the thrust of the Rule was to compel the parties to clarify the issues prior to trial. He stated:
"In accord with this concept, a defendant not only can but should, but not must, plead the meanings of defamatory words he seeks to justify. A plaintiff could compel a defendant to do so." (My emphasis.)
In Kelly v. Special Broadcasting Service & Anor [1990] V.R. 69 Murphy, J. of this Court found it unnecessary to decide whether or not Nathan, J. was correct in Kennett v. Farmer, nor whether the statements of the Full Court in National Mutual Life Association of Australasia v. General Television Corporation Pty. Ltd. (supra) obliged the defendant to plead the meanings for which it contended. Generally he appeared to agree with Nathan, J. on the point of principle. However it was unnecessary for him to decide the issue directly because he formed the view that the alternative meaning or imputation for which the defendant contended and sought to justify was unsustainable, that is, the publication was not capable of bearing that meaning, which was not open.
In Morell v. International Thompson Publishing Ltd. (1989) 3 All.E.R. 733, the Court of Appeal re-visited the issue. May, L.J. re-stated his view that there was no reason why a defendant should not be required to set out in his defence what is contended the words complained of mean. He stated:
"I think the position now is the defendant who pleads justification must do so in such a way as quite clearly, without circumlocution or obfuscation, to inform the plaintiff and the court of precisely what meaning or meanings the defendant may seek to justify. Although this may be done in the particulars of justification, there is then a substantial risk that the precise meaning will be lost in words. I see no reason why the meaning or meanings should not be set out directly briefly and at the start of the plea. That, in my opinion, is the result of the authorities referred to and should be the practice followed in the future."
In that case, May, L.J. regarded the particulars and further and better particulars as being prolix and embarrassing, being far too detailed and failing to sufficiently connect with the plea of justification. Nicholls, L.J. stated:
"Fairness to both parties requires that when the question of what meanings the words are capable of bearing does come to be decided the meaning sought to be justified should be stated with sufficient clarity and precision for the parties to be able to make their submissions, and for the court to be able to decide, whether the words are capable of the meaning sought to be justified in the light of the meanings clearly set out and pleaded."
In National Mutual Life Association of Australasia Ltd. v. General Television Corporation (supra), the Full Court of this Court described the development of the practice of the plaintiff pleading the meaning or imputation relied on in respect of a claimed defamatory publication, noting that the development of the practice did not alter the position at law, nor that the meaning of words was ultimately a question for the jury. The jury must be at large in finding the true meaning amongst such possible meanings as were left to them by the judge, and that the judge was not bound to confine the jury to the false innuendoes asserted by the plaintiff. The Court also referred to the practice which had developed of the defendant, not accepting the plaintiff's imputations, pleading his own version of what the words conveyed in their ordinary meaning, and asserting such a plea ahead of the traditional plea of justification that the words were in their plain and ordinary meaning true. It is to be noted that the Court said that such a plea had the benefit of informing the judge and the plaintiff what the defendant would say was the true meaning of the words used. It expressed the opinion that that practice did not alter the position that prevailed in that State that only the judge was to decide what meaning was fairly open and was to the leave to the jury all such meanings, and only such meanings. This did not mean that the judge and the jury were confined to the meaning asserted by the parties, although that would not matter in most cases as it would be most unlikely that the parties would fail between to hit upon, between them at least approximately all the reasonably open meanings. The Court was invited in that case (which was a case of an application for an interlocutory injunction taken on appeal) to decline to follow Polly Peck. It stated that it was not the appropriate medium to decide whether or not it was open to a defendant to plead his own ordinary meanings and plead justification of them only.
In Gumina v. Williams [No. 2] (1990) 3 W.A.R. 351 at 354, Malcolm, C.J. considered the authorities to which I have referred and stated:
"In my opinion, however, the weight of authorities justifies acceptance of the proposition that where justification is pleaded, the defendant is required to plead the meaning of the words which, if it is the true meaning, he will seek to justify."
He went on to say:
"... Thus, except where the natural and ordinary meaning is plain and obvious, it was held in Lewis (supra) that a plaintiff should plead the meaning on which he relies. Where that meaning is disputed and the defendant seeks to justify another meaning it would seem to me that it necessarily followed that the other meaning should be pleaded. Failure to do so could take the plaintiff by surprise ...
I agree with Seaman, J. that the adoption of the rule does not alter the position that the trial judge must decide what meanings are fairly opened from the words complained of and leave to the jury only such meanings as are fairly open. Neither the judge nor the jury are confined to the meanings alleged by the parties. As a practical matter, however, the judge may not regard it as necessary to put to the jury any meaning not pleaded by either party although he is entitled to do so. National Mutual Life Association of Australasia Ltd. v. General Television Corporation Pty. Ltd. [1989] V.R. 747 at 768."
Seaman, J. reached a similar conclusion, and strongly supported the practice approved to the same effect in Morell (supra) and Control Risks Ltd. & Ors v. New English Library (1990) 1 W.L.R. 183 at 189 (Nicholls, L.J.). He stated:
"In my opinion there is no prejudice to the defendant in placing him in substantially the same position as the plaintiff as to the pleading of meanings and it is fanciful to envisage that in practice a judge or a jury would find that the materials bore a meaning discerned by neither party ... There would occasionally be cases in which the defamatory materials are so explicit that a party has no need to plead any imputation to make its case clear. In my view, in all but those cases, the rule of practice should be that the plaintiff should set out in his statement of claim the meanings which he contends arise ... and the defendant who justifies should set out at the start of his plea of justification the meanings which he contends arise from them which he seeks to justify." (367)
Finally, I turn to some statements from the decision of the High Court of Australia in Chakravarti. I have had occasion in the case of Carrey v. Australian Consolidated Press (unreported, 30 September 1998)to refer to some of the implications that arise from the reasons for decision of the different justices of the High Court in Chakravarti. In that case Brennan, C.J. and McHugh, J. disapproved Polly Peck and concluded that the practice sanctioned by courts of permitting a defendant to plead a meaning different from that contended for by the plaintiff and then justifying that different meaning was contrary to basic rules of common law pleading, as in many contexts it would raise issues, usually false issues, which could only embarrass the fair trial of the action. Specifically they approved Bremridge v. Latimer (1864) 12 W.R. 878, and Watkin v. Hall (supra). If the views of Brennan, C.J. and McHugh, J. were applied to this case, the position would be that the defendant would not be permitted to plead a meaning different from that contended for by the plaintiff. The defendant would be in the position of either simply denying the plaintiff's meanings or alternatively justifying them if they were established. The views as expressed by Brennan, C.J. and McHugh, J. did not command any articulated support by the other members of the Court who sat in Chakravarti. No views have been expressed in other cases by the balance of the members of the High Court of Australia. Although the Full Court in National Mutual, having regard to the circumstances in which the appeal came to it, stopped short of approving the application of the Polly Peck principles in Victoria, they did not disapprove them. It can hardly be denied that in Victoria and all States in Australia the Polly Peck form of pleading has been permitted over the last decade. In Chakravarti some statements in the joint reasons of Gaudron and Gummow, JJ. are more directly applicable to the matters which were argued before me by the parties. They stated (para 52):
"Although there is no requirement in that regard, it is now common practice for a plaintiff to specify in his or her statement of claim the meaning or meanings which, as a matter of ordinary language, are set to be conveyed by the material upon which he or she sues. Whilst the pleading of different shades of meaning is not to be encouraged, distinct or specific meanings should be pleaded and one indication of distinctness or specificity 'would be whether the justification would be substantially different' and since the decision in Lucas-Box v. News Group Newspapers Ltd., a defendant who seeks to justify a different meaning has generally been required to plead or give particulars of that other meaning."
The authorities to which I have referred were footnote - cited in support of that conclusion.
Later their Honours stated (56):
"In the authorities concerned above there has been a tendency to translate into rules what are best seen as considerations going to fair and efficient practice. More cogently, it has been said that if the defendant seeks to justify a meaning which is different from that asserted by the plaintiff, it should plead that alternative meaning because 'libel laws ought not to be exception to the modern rules of pleading which are directed to precisely defining the issues between the parties providing a benchmark against which the relevance of evidence is to be assessed in deciding those issues on the merits'. The alternative meaning pleaded by the defendant may make plain the ground upon which the defendant denied the imputation pleaded by the plaintiff. But the view quoted may be accepted without supporting a general conclusion that in a defamation action the parties always should be held to the meanings they have pleaded."
In Chakravarti, Kirby, J. approached this issue by taking the view that in the common law jurisdictions such as Victoria and Western Australia the rules of pleading should be adapted to enable the tribunal of fact to fairly adjudge the issues in dispute. Finally I cite from Chapter 27 of the 9th edition of Gatley paragraph 27.7:
"In all cases where the defendant pleads justification of the words in their natural and ordinary meaning, he must make clear to the plaintiff what is the case which he is seeking to set up. The particulars themselves make this quite clear but, if they are ambiguous, then the situation must be made unequivocal. Although the meaning or meanings intended to be justified can be stated in separate or further and better particulars, there is a risk that the precise meaning will then become lost in words and the better practice is to set out the meaning or meanings directly and briefly at the start of the plea of justification."
That cautionary admonition is particularly apposite in this case in which the further and better particulars are a disorganized and unconnected muddle of asserted facts, not related to any of the plaintiff's meanings, or shades or nuances of meaning, insofar as one can derive that from the particulars themselves. They were conceded to be unhelpful. It is to be noted that counsel did not address on the particulars, other than to say that they showed what the defendant's case was, claiming that they revealed what was the meaning or meanings that might be derived from the particulars or particular parts of the particulars. I have little doubt that this was contrived omission as counsel candidly stated that he would raise at trial the meanings for which the defence contended but he would not identify them as part of his argument. A clearer and more deliberate case of obfuscation could barely be imagined. The time has long since passed when the parties "made their position clear" by referring to a prolix and frequently meaningless set of particulars. The defendants are not obliged to disclose the argument which they may advance in opposition to the plaintiff's claimed imputations or in relation to justification. But the defendants assert meanings different to the plaintiffs which they claim they can justify. Until the meanings are made known and the particulars of justification in relation to the meaning or meanings denoted, the plaintiff is put in the position of being unable to appropriately prepare or marshall evidence to rebut the justification claim, which the defendant has to establish.
I share the view expressed by the Full Court of Western Australia in Gumina and the cases which it followed. Members of the High Court in Chakravarti have confirmed the appropriateness of requiring a party alleging an alternative meaning to identify it. The difficulty for the opposite party in justifying an imputation that is not described is self-evident. The defendant is clearly entitled to deny the plaintiff's imputation. Subject to the views expressed by Brennan, C.J. and McHugh, J. in Chakravarti,, the defendant may set up his own imputations and justify those. The defendant can deny the plaintiff's imputations and do nothing else. The question here is whether he can deny the plaintiff's imputations and justify ones that remain unarticulated. I dismiss the particulars as amounting to a sufficient description. Moreover, I am firmly of the view that the place for the defendant to state alternative meanings or imputations is in the pleading, either accompanied by particulars or provided on request. But in my view, the alternative meanings contended for by the defendant must be pleaded.
Accordingly I order that paragraph 6 of the defence be struck out. The defendants have leave to re-plead as they may be advised, having regard to these reasons and the necessity for them to plead the meanings for which they contend. In my view, the further and better particulars are in their present form non-responsive and unsatisfactory. I order that they be struck out. When the defendants re-plead, my expectation is that they will give appropriate particulars in a form which the Court and the opposite party can fairly understand.
There were summonses which I adjourned in relation to the plaintiff's refusal to answer interrogatories until this issue was decided and in relation to the claimed defects or inadequacies in the defendants' answers to interrogatories. The summonses in respect of those matters will remain adjourned until this preliminary part of the pleadings is worked through.
I will hear counsel on costs.
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