Jones v John Fairfax Publications Pty Ltd - [2002] NSWSC 1210

No judgment structure available for this case.

CITATION: ALAN JONES v JOHN FAIRFAX PUBLICATIONS PTY LTD & ANOR [2002] NSWSC 1210

FILE NUMBER(S): SC 20340 OF 1999

HEARING DATE(S): 18 March 2002

JUDGMENT DATE: 18 December 2002

PARTIES :

ALAN JONES
(Plaintiff)
v
JOHN FAIRFAX (PUBLICATIONS) PTY LTD
(First Defendant)
DAVID LESER
(Second Defendant)

JUDGMENT OF: Levine J

COUNSEL :
T Blackburn
(Plaintiff)
S Rares SC / K Smark
(Defendants)

SOLICITORS:
Blake Dawson Waldron
(Plaintiff)
Freehills
(Defendants)

CATCHWORDS: Aggravated damages - ambit and particularisation of claim - the rule in Triggell v Pheeney - pre and post matter complained of publications - any requirement to specify defamatory meanings

LEGISLATION CITED: Defamation Act 1974

CASES CITED: Antoniadis v TCN Channel Nine Pty Ltd, unreported, Levine J, 26 February 1997
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185
Barbaro v Amalgamated television Services Pty Ltd (1985) 1 NSLR 30
Burrows v Knightley & Anor (1987) 10 NSWLR 651
Cannock Chase District Council v Kelly [1978] 1 All ER 152
Collinson v Loder, Oxon. 1750
Doherty v Nationwide News Pty Ltd (1967) 86 WN (Part 1) NSW 181
Gilbert v Catholic Education Office [2002] NSWSC 214
Grubic v Mirror Newspapers Ltd, unreported, Hunt J, 7 December 1984
Gruzman v John Fairfax and Sons Ltd, unreported, Hunt J, 28 September 1981
Harrigan v Jones [2000] NSWSC 844
Horrocks v Lowe [1975] AC 132
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Makim v John Fairfax & Sons Ltd, unreported, Hunt J, 15 June 1990
Mowlds v Fergusson (1939) 40 SR(NSW) 311
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346, 28 September 2001 ((2001) 53 NSWLR 116)
Philips v Philips (1878) 4 QBD 127
Roberts v Bass [2002] HCA 57
Rosenstraus v Muscat [1965] NSWR 302
Singleton v Ffrench (1986) 5 NSWLR 425
Smith v Richardson: (1737) Willes 21 [125 ER 1034]
Spasojevic v Riznic [1982] 1 NSLWR 278
Triggell v Pheeney [1951] 82 CLR 497
Turquand v Fearon (1879) 48 LJQB 703
Walton v Gardiner (1993) 177 CLR 378
Warne v Chadwell (1819) 2 Stark. 456 [171 ER 704]; Revised Reports (1818-19) Vol 20 at 716
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
White v Overland [2001] FCA 1333

DECISION: See paragraph 99

- 41 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

WEDNESDAY 18 DECEMBER 2002

20340 OF 1999

ALAN JONES
(Plaintiff)

v

JOHN FAIRFAX (PUBLICATIONS) PTY LTD
(First Defendant)

DAVID LESER
(Second Defendant)

JUDGMENT (Aggravated damages – ambit and particularisation of claim - the rule in

Triggell v Pheeney

– pre and post matter complained of publications – any requirement to specify defamatory meanings)

1 A jury has found that the publication of an article in The Sydney Morning Herald on 20 July 1999 carried the following imputation defamatory of the plaintiff:

The plaintiff was a dishonest broadcaster, in that he secretly agreed with the AMP Society that he would cease to criticise the AMP Society on air in return for the AMP Society agreeing to provide a substantial benefit to the South Sydney Rugby League Club of which he was Director of Football.

2 After the 7A trial conducted in February 2000 the plaintiff filed an Amended Statement of Claim. The plaintiff’s claim for aggravated damages is the subject of dispute. Pursuant to SCR Pt 16 r 5B notice is given by Mr Jones that he intends to allege that damages are affected by reason of various matters. As presently pleaded those matters are:

(a) The conduct of the defendants in publishing the matter complained of knowing that the plaintiff claimed it was false;

(b) The failure of the defendants to apologise for the publication of the defamatory matter;

(c) The publication by the first defendant of the following articles, prior to publication, each of which compounded the impression made by the matter complained of.

…

Australian Financial Review

The Sydney Morning Herald

The Sun Herald

The Age.

3 A Notice pursuant to SCR Pt 67 r 12A was filed by the defendants on 14 February 2002 which, in general terms, objects to the substance of the claim for aggravated damages and its particularisation. Further material was before the Court by means of the affidavit sworn by Christopher John Tappere on 15 November 2002, to which is exhibited “CT1”, a bundle of correspondence passing between the solicitors for the defendants and the solicitors for the plaintiff from 13 March 2000 to 30 October 2001.

4 It is necessary to extract portions of this correspondence to provide an outline of the defendants’ application, which, in the end, is to be understood as one to strike out from the Amended Statement of Claim the pleaded claim for aggravated damages and the appended and amplified particulars.

5 By letter dated 13 March 2000 the defendants’ solicitors (Freehills) requested particulars of the matters appended under SCR Pt 16 r 5 B in the following terms:

“5 In relation to paragraph (a) of the particulars, please

(a) provide particulars of the facts, matters and circumstances relied upon in support of the assertion that the defendants knew that the plaintiff claimed that the matter complained of was false; and

(b) state whether the plaintiff asserts that anything in the matter complained of was in fact false (identifying any such thing) and, if so, provide particulars of the facts, matters and circumstances relied upon in support of that assertion.

6 In relation to paragraph (b) of the particulars, please:

(a) specify the “defamatory matter” referred to;

(b) provide particulars of the facts, matters and circumstances relied upon in support of the assertion that the defendants failed to apologise for the publication of the “defamatory matter”; and

(c) please state whether it is the plaintiff’s case that the alleged failure to apologise was lacking in bona fides, improper or unjustifiable and, if so, please state which and provide particulars of the facts, matters and circumstances relied upon in support of that assertion.

7 In relation to the first paragraph (c) of the particulars:

(a) please state what is meant by “compounded the impression conveyed by the matter complained of” stating, with precision, what that “impression “ is said to be and whether it is alleged that, by reason of the alleged prior publications, the matter complained of conveyed any meaning about the plaintiff other then that in the imputation pleaded in paragraph 5(a);

(b) please state, in respect of each of the alleged publications referred to, what meaning or meanings the plaintiff relies on as arising from the publication and state whether the plaintiff asserts that any, and if so which, of those meanings is false;

(c) please state, in respect to each of the alleged publications referred to, whether it is the plaintiff’s case that its publication was lacking in bona fides, or was improper or unjustifiable and, if so, the acts facts, matters and circumstances (with dates) that will be relied on in support of that allegation; and

(d) without limitation to the foregoing requests, please provide full particulars of how it is said the publication of any matter published prior to the matter complained of, on or which your client seeks to rely in this regard, aggravated his damage.

The above requests are made without prejudice to our client’s right to assert that the particulars in this paragraph are not proper particulars of aggravated damage and should be struck out.

8 In relation to the second paragraph (c) of the particulars, please state, in respect of each of the alleged publications referred to:

(a) what meaning or meanings the plaintiff relies on as arising from the publication and whether the plaintiff asserts that any, and if so which, of the meanings are false; and

(b) whether it is the plaintiff’s case that its publication was lacking in bona fides, or was improper or unjustifiable, and, if so, the acts, facts, matters and circumstances (with dates) that will be relied on in support of that allegation.”

6 By letter dated 11 September 2000 the plaintiff’s solicitors (Blake Dawson Waldron - BDW) responded as follows:

“5(a) Letter from The plaintiff’s solicitors to Australian Financial Review, 19 July 1999; telephone conversation between Robert Todd, partner of the plaintiff’s solicitors and Richard Coleman of The Sydney Morning Herald, 19 July 1999;

(b) The plaintiff did not enter a secret agreement with the AMP Society whereby the plaintiff would cease to criticise the AMP Society if it invested in the South Sydney Rugby Leagues club; the plaintiff did not cease criticising the AMP Society because the AMP Society provided support for a cause in which he had a personal interest.

6(a) The matter complained of in paragraph (4) of the Statement of Claim, and the particulars of aggravated damages referred to in paragraphs (c) and (d) of the Amended Statement of Claim;

(b) The plaintiff requested an apology in the letter from the plaintiff’s solicitors to Richard Coleman of 19 July 1999, and the facsimile sent on his behalf by the plaintiff’s solicitors, on 20 July 1999, and the defendant refused to apologise in a letter sent by Richard Coleman of The Sydney Morning Herald on 20 July 1999, and no apology was published;

(c) the failure to apologise was improper and unjustifiable in the circumstances, given that the defendant must have known that the matter was false, considering:

(i) the publication of the facts set out in the articles “South Sydney denies Jones’ involvement in AMP deal”, Sydney Morning Herald, 20 July 1999, and, “AMP, Westpac and the Packer Fear Factor”, Australian Financial Review, 22 July 1999, and

(ii) that the defendant knew that the plaintiff claimed the matter was false, in the light of:

(A) the broadcast by the plaintiff of an explanation of the circumstances surrounding his relationship with AMP on 20 July 1999, and

(B) the facsimile from the plaintiff’s solicitors to Richard Coleman of The Sydney Morning Herald , 20 July 1999.

7(a) the effect of the publication of the article in question on the plaintiff was substantially aggravated by the

plaintiff’s knowledge that the defendant published such articles without regard to the truth or falsity of the facts alleged therein, and as a part of a relentless campaign to denigrate the plaintiff

. Each of the articles referred to in the first paragraph (c) of the Amended Statement of Claim (with the exception of the article referred to in paragraph (c)(vii) of the particulars in the Amended Statement of Claim) was published without regard to the truth or falsity of the facts alleged therein, and as part of a relentless campaign to denigrate the plaintiff. The publication of the prior articles compounded the impression conveyed to the plaintiff that the article was published without regard to truth or falsity of the facts alleged therein, and as part of a relentless campaign to denigrate the plaintiff. The publication of the prior articles also compounded the impression conveyed to those to whom the article was published since both the prior articles and the matter in question were published as part of a relentless campaign to denigrate the plaintiff.

(b) This is not a proper request for particulars.

(c) Each of the articles referred to in the first paragraph (c) of the Amended Statement of Claim, was published by the Defendant

as part of a course of conduct of the Defendant which was lacking in bona fides, improper and unjustifiable, since each article was written as part of the campaign to denigrate the plaintiff.

(d) The effect of the publication of the article in question on the plaintiff was substantially aggravated by the plaintiff’s knowledge that the defendant published

such articles without regard for the truth or falsity of the facts alleged therein, and as part of a relentless campaign to denigrate the plaintiff

. Each of the articles referred to in the first paragraph (c) of the Amended Statement of Claim (with the exception of the article referred to in paragraph (c)(vii) of the particulars in the Amended Statement of Claim) was published without regard for the truth or falsity of the facts alleged therein, and as part of a relentless campaign to denigrate the plaintiff.

8(a) This is not a proper request for particulars.

(b) Each of the articles referred to in the second paragraph (c) of the Amended Statement of Claim was published by the defendant as part of a course of conduct of the defendant which was lacking in bona fides, improper and unjustifiable, since each article was written as part of a campaign to denigrate the plaintiff. The plaintiff reserves the right to rely on further articles published by the defendant in his claim for aggravated damages, and will notify the defendants of these articles prior to the hearing.”

7 It is to be noted that in the last extracted letter reference is made by the plaintiff to the “relentless campaign to denigrate” him.

8 By letter dated 13 October 2000 Freehills sought the following additional particulars:

“(a) In respect each article, please state the acts, facts, matters and circumstances (with dates) by which it will be said that it was written as part of a relentless campaign to denigrate the plaintiff.

(b) In relation to each article in respect of which it is alleged without regard to the truth or falsity of the facts alleged therein, please state:

(1) the acts, facts, matters and circumstances (with dates) which will be relied upon to support that allegation.

(2) whether it is alleged (as it appears to be in your letter of 16 August 1999 in respect of at least some of the articles) that the article stated or imputed any matter that was false or misleading; and

(3) in respect of each article in respect of which an allegation of the type referred to in paragraph (b)(2) above is made, please state:

(A) what matter is alleged to be false and, in respect of that matter, the acts facts, matters and circumstances (with dates) by which it will be so alleged; and

(B) what matter is alleged to be misleading and, in respect of that matter, the acts facts, matters and circumstances (with dates) by which it will be so alleged.

(c) In respect of each article, please state what meaning or meanings the plaintiff relies on as arising from the publication.

In respect of the request in paragraph (a) above, we note the following. The fact (if it were a fact and this is not admitted) that a number of articles were published over a particular period and that they contained material which reflected adversely on the plaintiff, could not, without more, constitute a “campaign” or mean that their publication, or the publication of anyone of them, was lacking in bona fides, or was improper or unjustifiable.

In respect of paragraph (c) above, we note (without limitation) that the particulars are required by what is particularised in paragraph (b) in the Amended Statement of Claim (in particular, the reference therein to “defamatory matter”) as further particularised in paragraph 6(a) of your letter of 11 September 2000”.

9 BDW’s 19 page response dated 13 June 2002 contained the following:

“2 Articles referred to in the first paragraph (c).

These articles, when taken together, constitute a campaign undertaken by the First Defendant to denigrate the plaintiff, through:

· The repeated association of the Plaintiff with allegations levelled at John Laws, at a time when Mr Laws was subject to intense public condemnation, with almost no effort made to distinguish between the two broadcasters.

· Repeated efforts to insult or hurt the Plaintiff on a personal level including references to him as the “Parrot”, claims that he is arrogant, that he is “not respected”, or that he is simply “not liked”.

· Vicious mockery or taints directed at the Plaintiff.

· Repeated failures to provide an objective or complete account of issues pertaining to the Plaintiff.

· Repeated portrayals of the Plaintiff in a negative or ridiculous light, particularly through the use of headlines, cartoons, pictures and lay-out”.

10 The plaintiff provided particulars in relation to articles specified as having been published before the matter complained of. The following is a sample of the particulars provided in relation to such an article:

“2.1 “Bankers pull plug on Laws as radio net widens”, 16 July 1999, Australian Financial Review.

(a) the whole of the article is derogatory of the Plaintiff and especially the following:

(i) The association of the Plaintiff with John Laws at a time when John Laws was being held up to ridicule and censure in the media;

(ii) References to the “cosy relationship between business and radio’s opinion makers” and to a controversy “engulfing the radio industry” which, in combination, have the effect of implicating the Plaintiff in allegations which were primarily directed at Mr Laws;

(iii) False and misleading references to the agreement between the Plaintiff and Optus (The “Optus Agreement”), despite the fact that the First Defendant clearly had available to it information from a Mr Wilks of Optus;

(iv) A reference to the Australian Broadcasting Authority Inquiry (“ABA Inquiry”) as being “expected to lift the lid on the relationship between influential talkback hosts such as Laws and Jones and corporations, which have for years paid millions of dollars for favourable on-air coverage and promotions”, without providing any basis for that prediction, and at a time when the allegations were primarily directed at Mr Laws.

(b) (i) The Plaintiff was not given the opportunity to respond to the contents of the article prior to publication.

(ii) Yes, the article is false and/or misleading.

(iii) The article refers to a deal between Cable and Wireless Optus and the Plaintiff “for on-air advertorial support estimated to be worth about $500,000 annually”, which reference is false and/or misleading for the following reasons:

· It gives the impression that the Plaintiff was paid $500,000 to provide “on-air advertorial support” to Optus, when in fact, the Plaintiff was paid to perform several different services, including recording radio and television commercials, the provision of marketing skills and creative ideas in developing advertisements, and, if required by Optus, taking a starring role in an Optus television program;

· It fails to disclose that the Optus agreement provided that nothing in the agreement was to require the Plaintiff to provide services which would detract from his standing and integrity as a professional broadcaster and media personality or require him to limit or breach his obligations to 2UE;

· It fails to disclose that the Optus agreement provided that the Plaintiff was not required to conduct himself in any way which might “prejudice his integrate as an experienced and respected radio commentator”;

(c) This is not a proper request for particulars, and cannot be made so by reference to paragraph (b) in the Amended Statement of Claim, which paragraph refers to the failure of the Defendant to publish an apology”.

11 The following is provided as a sample of the particulars provided by the plaintiff in respect of an article published after the matter complained of:

“3.1 AMP, Westpac and the Packer fear factor”, 22 July 1999, Australian Financial Review.

We refer to our letter to Richard Coleman, John Fairfax Publications Pty Limited, dated 26 July 1999, and to the contents of that letter. We also respond as follows:

(a) Despite the clear availability of plausible and accurate explanations for the circumstances which gave rise to the allegations against the Plaintiff in the matter complained of, this article persists in those allegations. We refer, in particular to the words:

“Packer’s attack on Westpac, coupled with Jones’s attack on the AMP Society, had given rise to a simple but juicy theory in the corridors of the AMP. The theory was that Jones, a great friend of Packer, was gunning for the same targets.”

The plaintiff has no alternative but to conclude that the First Defendant deliberately published without any regard for the truth or falsity of the conclusions it reached or the impression it conveyed.

Although the article sets out more plausible explanations for the allegations against the plaintiff, the article repeats the allegations made in the matter complained of, providing these as a “third explanation”. Instead of admitting that the matter complained of was mistaken, the article concludes by suggesting that the issue remains unsolved, given the alternative explanations.

(b) (i) The Plaintiff was not given an opportunity to

respond to the contents of the article. More significantly, the refusal of the First Defendant to publish an apology for the matter complained of, despite having access to the information set out in this article, and despite our letter to Richard Coleman, John Fairfax Publications Pty Limited, dated 26 July 1999, was without justification. The Plaintiff has no alternative but to conclude that the persistent refusal was improper, malicious and lacking in bona fides.

(ii) Yes.

(iii) The following allegations, made by the article either explicitly or by clear implication, are false;

· That the Plaintiff was involved in a conspiracy with Kerry Packer in relation to Westpac and AMP;

· That the Plaintiff ever discussed the issue of Westpac and the AMP with Kerry Packer;

· That, to the Plaintiff’s knowledge, AMP Society invested in South Sydney in order to build good relations with the Plaintiff.

(c) This is not a proper request for particulars, and cannot be made so by reference to paragraph (b) in the Amended Statement of Claim, which paragraph refers to the failure of the Defendant to publish an apology”.

12 To this point it can be seen that two contentious matters are the adequacy of the particulars relating to the “campaign” and the refusal by the plaintiff to specify a meaning, or meanings, arising from a given article as requested by the defendants.

13 The objections and counter objections become more refined in subsequent correspondence, particular attention being given to two decisions of Hunt J: Gruzman v John Fairfax and Sons Ltd, unreported, 28 September 1981 and Grubic v Mirror Newspapers Ltd, unreported, 7 December 1984. These judgments will be dealt with below.

14 By 7 November 2001 an impasse had been reached: see exhibit CT3 to Mr Tappere’s affidavit.

15 Exhibit CT2 to the affidavit is comprised of communications from the plaintiff’s solicitors for the period 19 July 1999 to 27 July 1999 to editors and other representatives of the defendant publishing company, making complaint about various of the articles.

16 The additional articles, approximately 31 in number, excluding one only identified as 4 September 1999, “The unkindest cut”, have been provided in a folder.

17 As the defendants see it, the claim for aggravated damages in respect of the additional articles has given rise to three areas of dispute: first, whether the plaintiff was given adequate particulars of an alleged “campaign of denigration”; secondly, whether the plaintiff is obliged to identify the meanings which he asserts are carried by the additional articles; and thirdly, whether various particulars provided by the plaintiff are objectionable.

18 It can be seen from the essence of the exchanged correspondence that the defendants have sought particulars of the respects in which the publication of the prior and subsequent additional articles meet the standard required by what is said to be the rule in Triggell v Pheeney and of the facts, matters and circumstances relied upon in support of such contentions.

19 The rule in Triggell v Pheeney [1951] 82 CLR 497 at 514.5, relates to conduct amenable to an award of aggravated damages if that conduct on the part of the defendant is lacking in good faith or is improper or unjustifiable. The defendants complain that whatever else the material constituted by the presently supplied particulars may represent, it does not amount to proper particulars of aggravation based upon an assertion of a “campaign of denigration” against the plaintiff. The substance of the questions which need to be answered, according to the defendants, is whether the plaintiff asserts that such a “campaign” was deliberate; who it is that the plaintiff alleges carried out such a “campaign” on the behalf of the first defendant and what conduct amounted to the “carrying out” or participation in such a campaign (a new element); what facts, matters and circumstances relied upon by the plaintiff to establish that each article constituted part of such a campaign?

20 The inadequacy of the plaintiff’s response to these issues is submitted to be as follows: while the plaintiff apparently indicated that a deliberate “campaign” was alleged, this is only to the extent to which the reference to “an arrangement or understanding between members of the editorial staff of the first defendant” allows such a conclusion to be drawn. It is submitted for the defendants that the question posed was, and remains, susceptible of a clear and short answer: either a deliberate “campaign” is alleged or it is not.

21 The identity of the parties to the “campaign” (or “arrangement“ or “understanding”) has not been provided except to the extent that it is apparently alleged that each and every author of the additional articles was part of the “campaign” and by reference to “members of the editorial staff”. No particulars of participation by such authors have been provided: for example, no particulars of meetings of the parties to the “campaign” or “arrangement“ or “understanding” nor any relevant communications identified.

22 The defendants point to what it perceives to be a negative: namely, that the plaintiff does not choose to assert that the additional articles are defamatory, nor that the matter complained of is to be read against the background of the earlier additional articles (compare Burrows v Knightley & Anor (1987) 10 NSWLR 651), nor that the defendants have committed the tort of conspiracy or some other tort by the publication of the additional articles, it being suggested that any such allegation would, without question, compel a need for the fullest of particulars.

23 Rather, the defendants see the plaintiff bringing the additional articles, covering a range of dates, in issue as part of an aggravated damages claim, and that to bring a case of such scale against the defendants obliges the plaintiff precisely to make clear what case it brings, lest the defendants effectively be ambushed at the hearing. Reliance is placed on recently stated principles as to disclosure: Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346, 28 September 2001 ((2001) 53 NSWLR 116); White v Overland [2001] FCA 1333.

24 The defendants then elevate the particulars hitherto provided of a “campaign” or “arrangement“ or “understanding” to an assertion that there has been asserted a conspiracy between members of the first defendant’s staff to harm the plaintiff. If that construction of the case presently particularised is reasonably available, it is a serious matter for the plaintiff to assert, and, the defendants suggest, could have been the subject of a separate cause of action pleaded. The defendants submit that it would not be expected to be made lightly or without a proper foundation, that is, what the defendants are imputing to the plaintiff’s case by way of particulars, namely, a charge of conspiracy. Thus, it is contended, that the plaintiff, having made such a serious assertion in relation to such a large volume of material, is not entitled to escape the ordinary obligations of providing necessary particulars, simply by couching his case as one of aggravation of damages rather than as separately pleaded causes of action.

25 The defendants see the plaintiff’s case on aggravation of damages in the absence of further particularisation, as one of great generality. They complain that unless the plaintiff’s case is further and properly particularised, the first defendant will be unable to know what evidence it should obtain prior to hearing and to present at the hearing. Rhetorically, it is asked whether the first defendant is now required to interview each person listed as an author of one of the additional articles to ascertain whether at any specified time, that author has met with or discussed the plaintiff with any other of the authors in question or had such a discussion with any member of the first defendant’s editorial staff. Is the first defendant required to interview each member of its editorial staff (including past employees) to ascertain whether any such person communicated with any other such persons or with any of the various authors of the editorial staff?

26 In cases involving “agreements”, “arrangements”, “understandings” or “conspiracies” it has long been the law that such a allegation must be properly particularised: see, for example, Turquand v Fearon (1879) 48 LJQB 703. Further, an assertion of bad faith must properly be particularised because it essentially means dishonesty and always involves a degree of gravity in the charge that it makes: see Cannock Chase District Council v Kelly [1978] 1 All ER 152 at 156e per Megaw LJ. Further, of course, the rules of this court provide (SCR Pt 16 r 3) that particulars of allegations based upon states of mind must be provided.

27 The plaintiff, whilst noting that the question as to the conduct said to amount to participation in the “campaign” raised by the defendants have hitherto not been raised in correspondence, takes the position that he has complied with the obligation upon him, to give particulars that are reasonably required, and the best particulars that he is able to give: Rosenstraus v Muscat [1965] NSWR 302; Doherty v Nationwide News Pty Ltd (1967) 86 WN (Part 1) NSW 181. Further, under SCR Pt 16 r 7(3) no order should be made unless the order for further and better particulars is “necessary or desirable” to enable the defendants to plead, or for some other special reason. In this context in particular the plaintiff draws attention to the defendants’ complaint, referred to above, that no particulars of meetings of the parties to the “campaign” (or “arrangement” or “understanding”) were alleged, nor other relevant communications identified.

28 As a starting point it is contended by the plaintiff that the reliance upon the additional publications is neither impermissible nor unremarkable. As to the former, this is apparently acceded to by the defendants. In Gruzman and Grubic Hunt J relied upon statements in the second edition of Spencer Bower, The Law of Actionable Defamation, pp138-9; (see also Odgers on Libel and Slander (6th ed) at 320).

29 An important point for the plaintiff is the nature of the material relied upon in support of the claim for aggravated damages needs to be borne in mind. It is submitted that it is one thing for a newspaper to publish articles containing criticism of a well-known broadcaster such as the plaintiff. What is here contended, however, is that the tenor of the articles complained of go well beyond mere criticism or comment. They contain epithets used to describe the plaintiff as “the parrot”, what is said to be gratuitously insulting material, snide comments and plain “gossip”. All of the articles were published in a stream before and after the publication sued upon and show plainly, in the plaintiff’s submission, an “animus” towards him. From this course of conduct, the plaintiff is entitled to invite the court, it is submitted, to draw an inference that the first defendant pursued a deliberate campaign of denigration. It is in the nature of such a campaign that the plaintiff must be largely unaware of the “operation” of it with any degree of precision. That, however, does not prevent him from inviting the court to draw inferences from the evidence available (not least of which, I would understand, to be the fact of publication of the articles themselves). This is submitted to be nothing more than common sense and the obligation on the plaintiff in this case is to give the best particulars he can and to put the defendants on notice of the case they have to meet. This the plaintiff has done, it is argued.

30 In circumstances where the plaintiff has given the best particulars he can, the objections of the defendants simply cannot be maintained. It is a case of the defendants “not liking” the answers, the plaintiff says. It may be the case that the defendants consider that the matters particularised will not at trial support the allegation. The defendants no doubt have a view as to the inadequacy of the particulars in support of the allegation of a “campaign”. Thus the plaintiff asserts that the defendants will be “relaxed” about the claim for aggravated damages when it comes to trial. In the end the plaintiff sees the defendants’ stance as argumentative only, and, in fact, an assertion that the plaintiff’s case, in order to succeed, must be something different.

31 In short, the plaintiff’s case relies “on inference” from the fact and content of the articles particularised. The defendants are on notice of the case they have to meet. Any view that they hold as to the weakness or unsoundness of the case will be vindicated by appropriate submissions in the light of the evidence called at trial.

32 The plaintiff is particularly critical of what he says is the defendants’ intent to distort his case on aggravated damages particularised by asserting it to be one of conspiracy and thereby deficient in its particularisation. Even in a conspiracy action the plaintiff is only obliged to plead such overt acts as he or she is able to give and can reasonably give. That is perfectly understandable when one takes into account the nature of a conspiracy which, as the plaintiff submits, can be wholly “opaque”. It is the “external” or “overt” acts that evidence any posited agreement to commit an unlawful act or to commit a lawful act with the predominant intention of injuring the plaintiff. The mechanism of the conspiracy would be obscured from the plaintiff. However particularised (and proven) overt acts could give rise to a rational inference that there was such a conspiracy. Further, for the defendants to suggest that what the plaintiff is particularising is an “allegation” or “agreement” or “arrangement to do something”, there is a minimum necessary “volume” of particulars that must be given: this does not accord with general principle in that each case depends upon its own facts and what particulars must be furnished in any given case must always depend upon the facts of that case: Philips v Philips (1878) 4 QBD 127 per Cotton LJ at 139.

33 The second point the plaintiff makes in general terms in relation to what he contends to be the inappropriate analogy of “conspiracy” is that in a pleading of conspiracy the overt acts are material facts which must be pleaded and pleaded to. They are the essence of the cause of action for conspiracy and without those overt acts being pleaded no reasonable cause of action is disclosed. The plaintiff says this dispute is about particulars, the function of which is not to complete a cause of action, but to put the opposite party on notice of the case it has to meet on the cause of action. To some extent this proposition is subsumed in the submissions for the defendants. The submissions for the defendants rest upon the defendants having elevated the case the plaintiff has particularised to one of “conspiracy” and required, therefore, particularisation of matters which would be the subject of pleading as material facts in a Statement of Claim. Even viewed this way, the defendants’ objection, according to the plaintiff, is specious. The defendants are concerned to amplify an allegation of inadequacy in particulars by positing a head of claim, as it were, which the plaintiff does not have to make and indeed cannot make for the reasons stated. As the plaintiff has said in its written submissions, stripped of its essentials, the defendants’ position is “give us particulars which you are manifestly unable to give, because the matters cannot be within your knowledge, or we will move to strike out that part of your claim”.

34 Finally, the plaintiff perceives the defendants’ other principal objection under this broad heading to the effect that it complains that the plaintiff has failed to particularise whether the conduct relied on falls within the category of improper, unjustifiable or lacking in bona fides (the proper particularisation of the Triggell v Pheeney component). The plaintiff’s response is that what he has done is to give notice of the conduct in respect of which it will be submitted in due course on such evidence as is called about it, that it is improper, unjustifiable or lacking in good faith. Neither Triggell v Pheeney nor Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 (particularly at 74F) requires more than that the defendant be supplied with sufficient particulars to enable it to know the case it has to meet.

35 I agree with the submission for the plaintiff that there is no obligation upon him to “allocate” the asserted conduct to any one or more of the categories of impropriety, unjustifiablity or want of bona fides. I do not agree insofar as it could be understood that the plaintiff, if he is in a position to do so, is nonetheless not required to particularise the facts, matters and circumstances upon which he relies in asserting that the conduct has one or more of those requisite qualities (see Harrigan v Jones [2000] NSWSC 844 at 58, 18 August 2000, Levine J and Gilbert v Catholic Education Office [2002] NSWSC 214 at 20, 18 March 2002, Levine J; see also Antoniadis v TCN Channel Nine Pty Ltd, Levine J, unreported, 26 February 1997).

36 The issue here is whether or not the plaintiff has properly identified the conduct and has given appropriate particulars of it, from which certain matters will be proved, either directly or by inference and in respect of which a finding could be made as to whether that conduct is improper, unjustifiable or lacking in good faith.

37 In view of the broad sweep of the particulars of which the defendants complain I do not see it as my function to go through them particular by particular, but to form an overall view as to whether, under this first head of argument, the plaintiff has fulfilled his obligations.

38 The defendants sought particulars in respect of the additional articles as to the meaning or meanings the plaintiff relied on as arising from each publication and whether the plaintiff asserted that any, and if so, which, of those meanings is false. The plaintiff’s response was to the effect that such publications “compounded the impression made by the matter complained of” and “the defendant published such articles without regard for the truth or falsity of the facts alleged therein, and as part of a relentless campaign to denigrate the plaintiff”. This assertion is restated in various ways.

39 The defendants then address the matter of principle that evolved into the subject of much contention in the course of submissions.

40 The defendants’ position is that it can be taken to have been settled for many years that evidence of other defamatory words published by the defendants about the plaintiff can be relied upon as evidence of malice, even though they are not the subject of an action and even if they were published subsequent to the matter complained of or the Statement of Claim: see Gatley on Libel and Slander (8th edition), 1988, paragraph 1328. The defendants suggest that the same principles apply to allegations of such publication in relation to aggravation of damage, citing Grubic. There seems to be, it is said, no reason for any different principle to apply to the two issues; indeed, subject to satisfaction of the requirements of Triggell v Pheeney, it is for a plaintiff to assert an aggravation of damages precisely because of the alleged malice of the defendants.

41 Equally, the defendants say it is settled that if evidence of other defamatory publications by the defendants about the plaintiff is relied upon, the defendants are entitled to meet such reliance by leading evidence of any facts which would have constituted an affirmative defence. In this regard the defendants cite Grubic, Gruzman, Warne v Chadwell (1819) 2 Stark. 456 [171 ER 704]; and the statement in Spencer Bower, The Law of Actionable Defamation (2nd edition 1923) at 138-9.

42 To these series of cases I will return.

43 The existence of affirmative defences is generally to be assessed vis-à-vis the causes of action relied upon by the plaintiff under s9 of the Defamation Act 1974, namely the imputations. Whilst the defendants acknowledge that it is perhaps unnecessary that the plaintiff who seeks to rely on additional publications in relation to malice/aggravation need go so far as to plead imputations with the precision required under the Act, it is submitted that it is necessary that the plaintiff identify with some precision the meanings which are said to emerge from individual publications. Thus, the defendants will be put on reasonable notice of the evidence that they might be entitled to adduce consistent with the principles said to flow from the authorities cited above, that is to establish an affirmative defence.

44 The defendants exemplify what they say is a dilemma: a particular article might carry a series of allegations only some of which are asserted by the plaintiff to be false. It would follow that only the “false” allegations could be the subject of a possible connection with an allegation of malice and/or the aggravation of damage. In the absence of an indication from the plaintiff which allegations are the subject of complaint, the defendants would have no idea which allegations they should be prepared to support at trial in an attempt to rebut the plaintiff’s charges. A plaintiff may assert that an article conveys a particular meaning which might not be obvious, yet is present on a fair reading of the article. Unless particulars of such meaning are given the defendants might be caught entirely by surprise at the hearing of the matter.

45 A further issue is that a plaintiff may assert (as the plaintiff here says it is entitled to do) that the defendant has published a particular true allegation, but has done so maliciously. It might be asserted that some articles were published in circumstances where a defence of fair protected report would exist and the plaintiff might wish to assert that the publications were not made in good faith (see, for example, Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58).

46 Thus, the defendants submit that the plaintiff is required to identify with precision the allegations which are falsely made in the additional articles, and the facts, matters and circumstances relied on to establish that falsity. Pausing there, I interpolate that in my view it would be sufficient merely for the plaintiff to assert, if there is any requirement at all, that the statement in an additional publication is false. As a matter of evidence, the issue of falsity would be initiated as a matter to be determined by a statement by the plaintiff, on oath, that a statement in the article was simply false. I do not see how a plaintiff in that position can be compelled to particularise the basis of falsity. The situation, of course, is different where the plaintiff asserts not only that the statement was false but that the defendant either knew it was false, was reckless as to its truth or falsity, or had no belief in its truth. In that situation the plaintiff could be compelled to particularise the facts and matters upon which the plaintiff relies in making that assertion.

47 The particulars hitherto provided by the plaintiff, the defendants contend, are inadequate in these respects. In submissions the defendants exemplify their complaint in a degree of detail to which it is unnecessary for me to go, making reference to assertions as to the “impression” created by particular articles, or the assertion that some articles were “misleading”. Indeed, where what is described as “something approaching the required particulars” are provided, ambiguity still remains. The overall effect of the particulars supplied, it is contended, is confusing and the defendants are entitled to have the meanings of the articles on which the plaintiff relies distinctly and unambiguously identified.

48 The plaintiff perceives the defendants’ position to be that they are entitled to meet and defeat the claim in aggravation of damages as of right in the event that another publication relied upon to that end could be regarded as giving rise to defamatory imputations and one or more notional defences exist to the publication of such imputations as if they have been pleaded as causes of action. Thus, according to the defendants as the plaintiff sees it, the plaintiff is obliged to formulate imputations that arise out of the aggravating articles before he can establish any claim for aggravated damages and the defendant is entitled to a full trial of the issues in the same manner as if the imputations themselves were being sued upon as causes of action. The principle thus formulated, according to the plaintiff, is unsound and its consequences unnecessary, inconvenient and undesirable in practice.

49 The authorities for the proposition that the defendant is entitled to meet such a claim by leading evidence of any facts which would have constituted an affirmative defence are four in number: Gruzman, Grubic, Warne and Spencer Bower. Spencer Bower’s statement (at 138-9) rests on the authority of Warne. Hunt J’s authority in Gruzman is Spencer Bower and Gruzman is his Honour’s authority for his decision in Grubic. Thus, says the plaintiff, the whole edifice rests on Warne’s case.

50 The report in Starkie of Warne’s case is sparing. I shall take the unusual course of setting out in full that report:

“(In an action for slander, words are given in evidence in order to prove malice, which are not stated in the declaration, the defendant may prove the truth of such words.)

This was an action on the case for words spoken of the plaintiff in his trade of a maker of instruments for drawing beer. The words were: “ He is a bankrupt, and cannot pay 5s. in the pound, he is not fit to be trusted.”

For the purpose of shewing a malicious intention on the part of the defendant

, the plaintiff proved that the defendant on another occasion had said, that the plaintiff had called his creditors together, and had offered them a composition of 5s. in the pound.

On the part of the defendant proof was offered of the truth of the latter words, which the defendant had no opportunity of justifying, since they were not upon the record and Abbott Ld C.J. was of the opinion that such evidence was admissible and it was given accordingly

(See Buller’s N. P. 10,

Collison v Loder

)”

Collison v Loder

Introduction to the Law Relating to Trials at Nisi Prius,

“However, where the plaintiff having bought an action against the defendant for saying, “He was a buggerer, and that he caught him in the fact,” after proving the words, gave in evidence the defendant’s saying at another time, that “He was guilty of sodomitical practices.” Mr Justice Burnet, upon considering the case of

Smith

and

Richardson

, permitted the defendant to give in evidence the truth of those words, for the action not being brought for speaking them, the defendant had no opportunity of pleading that they were true; and therefore,

as the plaintiff has proved the speaking of them in aggravation, the defendant ought to be permitted to shew they were true in mitigation

. –

Collinson v Loder

, Oxon. 1750”.

Collinson v Loder

51 There is, however, a citation for Smith v Richardson: (1737) Willes 21 [125 ER 1034]. The plaintiff was the beer butler of the College of Christ Church in Oxford of whom the defendant said: “John Smith is a rogue and hath stolen my beer; and John Smith has robbed me of my beer”. The defendant had sought to mitigate the damages by offering to prove the truth of the words and that the plaintiff was really guilty of the felony mentioned in the declaration. The judge did not permit it but reserved the point for the opinion of the Court of Common Pleas. The Lord Chief Justice (Willes) summoned all the judges to his chambers in Serjeant’s Inn on Friday 11 November 1737, the matter being a new case and of great consequence. The outcome of that meeting and consideration was that in an action for words that import felony or treason the defendant cannot give in evidence the truth of them on the general issue, (i.e. a plea of not guilty of publishing).

52 It does not bear directly therefore on the present matter, but is part of the curious diversion in which I am engaged.

53 Warne v Chadwell is also reported in the Revised Reports (1818-19) Vol 20 at 716. The learned editor of Vol 20, Sir Frederick Pollock, in his preface happens to note: “this Volume is not rich in decisions of the first magnitude, at least for the English lawyer…” The headnote in the Revised Report is:

“In an action where malice is material, if words not on the record are given in evidence in order to prove malice, the defendant may prove the truth of such words.”

54 Essentially, the text of the Report follows is that as set out in Starkie. The report in the Revised Reports is interesting by reason of the footnote of the editor which is in the following terms:

“This case cannot be right as reported, for the plaintiff in an action for defamation is never called on to prove malice as a fact in the first instance. But the ruling may be applicable on a question of rebutting the defence of privilege, or in other kinds of action where malice is a material fact”.

55 It is clear from both reports of Warne that it was a slander action in which words were spoken of the plaintiff in his trade. It is apparent that the plaintiff, in order to prove “malicious intention”, proved that the defendant had said the other words on another occasion. Whilst the defendant was permitted to prove the truth of the latter words the plaintiff obtained a substantial verdict.

56 For the plaintiff in this case, it is said that Warne’s case leaves a number of matters unclear. In principle there is no reason, it is said, why a true statement may not be evidence of malice in the appropriate case, malice, (in aggravation of damages) being referable to the defendant’s state of mind. The plaintiff contends that it would be more logical that the pertinent enquiry in such a case would be whether the defendant believed the statement to be true, though even then, the circumstances of making it may, in a given case, indicate ill will which would leave to inferences being drawn as to the purposes of the making of the statement sued upon.

57 It is difficult to determine, it is said, what the real issue in relation to the evidence of “truth” of the statement in Warne’s case was. It involved evidence of the defendant’s state of mind, that is, his belief in the truth - not an inapposite observation when the report certainly refers to “malicious intention”. However, if the report is taken at its face value, it appears that the Lord Chief Justice regarded the bare truth of the prior statement as eliminating reliance upon that statement for the purposes of drawing an inference from it as to the defendant’s state of mind on the occasion sued upon (“malicious intention”).

58 It is argued, with respect, that in principle this cannot be correct. The mere fact that a statement which, if the subject of a separate count for defamation, could be successfully defended upon his Honour’s basis that it was true, has nothing to do with the motivation of the publisher in making it; whether its purpose was to injure, and whether inferences can be drawn from the fact of it being made. The plaintiff submits that in principle it is impossible to say that the making of a true or (the more so) an otherwise notionally defensible statement could never also be regarded as a matter of aggravation since that issue involves the defendant’s state of mind.

59 The plaintiff posits three problems with Warne’s case as authority for the propositions said to flow from it. Warne’s case is about malice (lack of honest belief encompassing recklessness or use of the occasion for a predominantly improper purpose). It is difficult to see how the objective truth or falsity of the statement logically could be relevant to either of those issues. Malice has to do with the state of mind – quo animo? It is well established that the objective truth or falsity of a statement made on an occasion of privilege is irrelevant to that issue: Makim v John Fairfax & Sons Ltd (unreported, Hunt J, 15 June 1990). The issue of the objective truth or falsity of the publication is similarly logically irrelevant to the issue of malice, by reason of its being concerned with the defendant’s state of mind and intention.

60 For the plaintiff it is argued that in Warne’s case presumably the defence in issue was that of qualified privilege and the evidence of the prior publication was adduced in order to have the jury infer that the publication sued on was predominately intended to injure the plaintiff. If that was the issue, in terms of malice the objective truth or falsity of the statement could have nothing to do with that issue. Spencer Bower draws from the report of this case the principle that, semble, where the prior publication relied upon in support of malice or aggravation also happens to be defamatory, then the reliance is not available if there would notionally be an affirmative defence to that publication. The plaintiff, through his legal advisers, expresses profound disagreement with that principle on the basis of it being said to be deduced from Warne’s case. In any event, it cannot be correct and ought not to be followed.

61 I interpolate that I agree that it is not quite clear to what end the truth of the second statement was sought to be established, or, indeed, to what end, the malicious intention of the defendants was sought to be established by the plaintiff. It might have been conformable within pleading practice (“falsely and maliciously”) but whether it was an occasion of privilege is not clear at all from the report. All that we know from it is that the evidence was admissible and, in more modern terms, one would be inclined to think rather in mitigation of damages than to rebut an allegation of malice.

62 It is further argued for the plaintiff (secondly) that the wrongness of the principle can readily be seen when the notional plea of comment or privilege to an aggravating article is considered. It is said that it is difficult, if not impossible, to see how a spiteful publication made on a prior occasion of privilege should be excluded from consideration merely because the plaintiff is unable to prove malice.

63 I interpolate, if the plaintiff is unable to prove malice, on what basis is it contended that the publication is “spiteful”? It is trite that a defendant can be possessed, to some extent, of a desire to injure when speaking on a privileged occasion, such a desire must not, however, be the dominant motive: Horrocks v Lowe [1975] AC 132.

64 The plaintiff then posits that there is no reason whatever why a degree of bad faith on an earlier privileged occasion should be excluded from being considered in a claim for aggravated damages, merely because it did not amount to express malice. That, it is said, would be the effect of the supposed principle. I can indicate now that I do not accept this proposition.

65 Thirdly, a substantive defence stands in a wholly different position from a claim for aggravated damages. A matter particularised in aggravation of damages as being unjustifiable, improper or lacking in good faith, is to be judged in connection with and in the context of the matter which is sued upon. The issue is whether the plaintiff’s hurt caused by the matter complained of, that is sued upon, is increased having regard to that aggravating matter. A consideration of whether the aggravating matter was in fact unjustifiable, improper or lacking in good faith must include the nature and context of the matter complained of. In the present case it is submitted that if it is shown that the matter complained of was published as one of a stream of publications, the inferential motive for which is the denigration or ridicule of the plaintiff, and if the defendant publishes some damaging but true matter in that context, and for that purpose, it is for the trier of fact whether in all the circumstances such conduct amounts to an aggravation of damage.

66 Attention is then turned to the two decisions of Hunt J referred to above. In Gruzman v John Fairfax & Sons Ltd (28 September 1981, BC 8100038) his Honour was principally concerned with a very late allegation by the plaintiff of the defendant’s malice against the plaintiff’s father and an application, in the light of that allegation, to vacate the hearing date. The defendant had published a photograph of the plaintiff. The article, however, concerned criminal proceedings against the plaintiff’s father. The relevant particulars asserted that the publication was made as part of a long campaign by the defendant against the plaintiff’s father “in the course of which it was motivated to attack and discredit the plaintiff himself”. His Honour remarked (page 3) upon the tenuousness of the allegation. Extensive particulars were provided and discovery disclosed thirty-seven items published by the defendant covering a period of 21 years. At page 4 his Honour noted that the task before the defendant was “immense” because “a defendant faced with allegations of this kind is entitled in the case of each article relied upon by the plaintiff to establish malice against it to lead evidence demonstrating that its publication was defensible”. His Honour then cited pages 138-9 from Spencer Bower’s text. Otherwise there is no analysis of the ambit of the principle enunciated by that author. It seems, in the end, that all his Honour was saying was that the defendant had to have time to meet that claim.

67 Hunt J’s decision in Grubic v Mirror Newspapers (unreported, 7 December 1984, BC8400136) was concerned with a dispute about interrogatories. The relevant interrogatory was directed, not to the matter complained of, but to an earlier publication relied upon in aggravation of damages. It asked the defendant what steps it took to ensure that specific statements in the aggravating publications were true, and as such fell foul of the rule in Spasojevic v Riznic [1982] 1 NSLWR 278 where it was held that it was impermissible to direct that interrogatory to individual statements. His Honour went on to observe, however that the rule did not prevent the plaintiff from limiting the area of the request which is what the plaintiff had done. His Honour then noted (page 3) that there was “no difference in principle” between the properly drawn interrogatory directed to the matter complained of and to a publication relied upon in aggravation of damages. His Honour held that “the plaintiff is similarly entitled to interrogate in relation to the matter relied upon in aggravation in just the same way as if it were pleaded as a separate cause of action…”, having cited his previous statement in Gruzman. Again, the plaintiff notes that there is no analysis by his Honour of ‘the correctness of the principle, or its consequences”. In Grubic the interrogatory in question related to statutory qualified privilege and was presumably allowed in that case, as the plaintiff contends, as going to a notional plea of privilege to the aggravating matter. It does not appear from the judgment whether such a notional plea had been particularised, or whether the plaintiff had been required to particularise imputations said to arise from the aggravating matter.

68 The plaintiff submits that neither Warne nor Gruzman are authority for the principle contended for in Grubic, and that for which the defendants contend in this application.

69 Moreover, the plaintiff submits the consequences of such a principle, if it is truly the law, are “far-reaching and verge on the absurd”.

70 It is to be borne in mind that the Gruzman/Grubic “principle” as enunciated by Hunt J is no more than that the defendant is entitled to defend each publication relied upon in aggravation of damages. The principle asserted by the defendant is that by reason of the operation of that doctrine, there is an obligation upon the plaintiff to particularise, as if each article were being sued upon, the imputations said to be conveyed by it.

71 Some general observations are made for the plaintiff: the cause of action in this State is the imputation (s9 Defamation Act 1974). It is notorious that under this statutory regime the constant need for precision in pleading imputations gives rise to involved interlocutory proceedings as to form and capacity of imputations. This can be compared with other jurisdictions in this country, where actions for defamation are, more likely than not, to be brought to a successful conclusion and a final one without the same degree of “interlocutory skirmishing”.

72 In addition to such interlocutory proceedings, in all jurisdictions there is a extensive use of particulars and interrogatories in relation to the publication of defamatory material. In the instant case, the plaintiff is alleging a course of conduct engaged in by the defendants. That allegation is necessarily largely one of inference. That allegation necessarily involves a large number of publications evidencing the asserted particular course of conduct. Thus the plaintiff submits that the particulars he must provide are those parts of the publication relied upon by him pointing to a basis for the drawing of the inference, that there was that sustained campaign of denigration by the defendants.

73 The following questions are posed as to whether it is really the law in this State that, first, a plaintiff must comb through articles and determine whether, fortuitously, any meanings arise out of them that are more or less contiguous with those parts of the articles which are relied on, and then formulate such meanings in a way which satisfies the requirements for the pleading of imputations under s9 of the Act? Secondly, is the defendant entitled to have an “interlocutory skirmish” as to the form and capacity of such imputations? Thirdly, if the defendant then pleads justification, comment, qualified privilege or any other substantive defence to the imputation, how is it to do so with full and probably very extensive particularity? Fourthly, this would lead to correspondence and further “interlocutory skirmishes” about the adequacy of the notional plea or particulars. Fifthly, if a defence in respect of each aggravating publication is relied upon by way of privilege or comment, is the plaintiff to “reply” in effect asserting matters that otherwise, if substantive defences are pleaded, are available in defeasance of those defences? Sixthly, full discovery - will it be required on all the issues notionally so raised? The same applies to interrogatories. Seventhly, and finally, in the end is a trial to take place not only in relation to the matter complained of but also to the notional actions in relation to the imputations arising and the notional defences there to, in relation to aggravating publications? The substantive action would be thwarted, as I understand it, by “phantom” defamation actions in relation to the notional imputations and notional defences thereto.

74 The plaintiff complains, in effect, that the absence of analysis by Hunt J in either Gruzman or Grubic of the consequences of the supposed principle leads to, in the suggested procedural scenario above, to a costly absurdity which would bring this branch of the law into disrepute. The plaintiff ultimately submits that it is sufficient to put the defendants on notice of those matters or parts of the offending publications that the plaintiff relies upon in support of the largely inferential allegation of a campaign of denigration, which would, in the end, underpin a finding of impropriety, unjustifiablity or lack of good faith. The plaintiff says he has hitherto provided sufficient particulars.

75 The plaintiff’s overall position mentioned above, I take to be in response to part C of the written submissions for the defendants to the effect that not only do the particulars hitherto provided fail to inform the defendants of the case they have to meet, they also suffer a converse defect. That defect is that they contain a great deal of material which is embarrassing.

76 I do not propose to rehearse the painstaking detail which characterises the five paragraphs and sub-paragraphs of the written submissions (14 February 2002) in support of this proposition. If the fundamental complaint is that the plaintiff has failed to make clear his case, it seems unnecessaary to have to descend into the detail of a submission that whatever it is has been particularised. It is embarrassing, immaterial, argumentative or discursive judged against a non-existent benchmark.

77 The defendants assert oppression from what is to be understood as the absence of clear particulars and the presence of immaterial matter. I am grateful that the defendants recognise, given what is said to be the scale of the issues raised, that the Court may care not to rule in relation to each matter.

78 As the defendants rightly submit, the Court does have power to deal with proceedings, which although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to the litigation: Walton v Gardiner (1993) 177 CLR 378 at 392.10 – 393.7. The ultimate submission is that it is the effect of the plaintiff’s “case” as it is presently put, that an unacceptable burden is placed on the first defendants.

79 The defendants contend that the plaintiff’s response as to the “best particulars of the campaign” seems to rely on an unreported decision of myself in Antoniadis v TCN Channel 9 Pty Ltd (26 February 1997, at 4.1-5.2). That judgment was delivered in “mid-trial’ and was quintessentially concerned with issues that arose in the course of it. Certainly, what I there said does constitute some authority contrary to the submission of the plaintiffs. In that case I limited the use to which the plaintiff wished to put what was in effect the repetition of material sued upon. I rejected it as part of a “campaign by repetitive telecasting”. I held that malice or animus when relied upon for the purpose of aggravated damages can be established by way of inference, but by inference in respect of identified servants or agents of the defendant whose mind in some way played a part in the relevant publication. That holding was based upon the antecedent proposition, of course, that the defendant had been informed by the plaintiff by a clear statement as to the foundation for relying upon the particular matter published in aggravation of damage in terms of it being improper, unjustifiable or lacking in good faith.

80 The defendants point out that evidence relied on as demonstrative of “an animus” towards the plaintiff, as referred to in the plaintiff’s submissions, must prove that each of the publications by the first defendant “was actuated by that ill-will or other improper motive” (Mowlds v Fergusson (1939) 40 SR(NSW) 311 at 327-329; see also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 574.6-7).

81 In Mowlds v Ferguson Jordan CJ explained that if the occasion extraneous to that of publication of the matter complained of were privileged, then it is necessary to show the illegitimate purpose or the use of each occasion as congruent; it is not enough that there were different motivations (at 328-239). His Honour said:

“In the present case, the mere fact that some of the defamatory matter published on the second occasion was false would, without more, do no more than supply evidence of an unauthorised purpose on the second occasion. In the absence of some evidence of what that purpose was, and that it was one likely to have been operative on the first occasion also, it would supply no evidence of express malice on the first occasion…”

82 In Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185, Windeyer J noted in Jordan CJ’s judgment that it limited the use of other similar defamatory publications (at 211). His Honour went on to say that the plaintiff must prove positively an absence of good faith by credible evidence and that mere conjecture will not suffice, still less the assertions of counsel (at 211); see also Horrocks v Lowe (1975) AC135 at 150H per Diplock LJ; Barbaro v Amalgamated television Services Pty Ltd (1985) 1 NSLR 30 at 51 per Hunt J.

83 It is submitted that because conduct which is merely not bona fide but was justifiable or proper cannot be relevant to the issue of malice or aggravation, the precise nature of the allegations relied on as going to malice or aggravation - in this case, each article –must be capable of being justified in the sense used in Triggell v Pheeney. That is, if the defendant had been confronted with an allegation which prima facie was capable of showing its conduct was malicious, it could show that it was not by demonstrating, for example, a privileged occasion or that it made a defensible comment, or, that what it said was protected under ss15, 16, 24 or even s13 of the Defamation Act 1974. Thus the assertion in the plaintiff’s submission, to the extent that it is made, that it is irrelevant that one could successfully defend the extraneous publications, is wrong.

84 I am of the view that this proposition is correct. Insofar as the plaintiff may assert that the defendants were malicious or lacking in good faith, if the quantum of malice or lack of good faith cannot be established to the point of defeating privilege or in defeasance of comment, the “little bit of malice” or the “little bit of lack of good faith” cannot be relied upon in aggravation of damages. To hold otherwise would be inconsistent with the principle of general application referred to by Windeyer J, above, and in Horrocks v Lowe. The same requirements of proof in relation to the state of mind of servant or agent of the defendant clearly apply in a plaintiff’s assertion that the defendant was actuated by malice, was wanting in good faith, and thus acted improperly and unjustifiably and with a lack of good faith as applies to matters in defeasance of a defence of privilege or in defeasance of a defence of comment, by way of example. No authority to the contrary has been cited to me to support what I have characterised as the “little bit of malice” for the purposes of aggravation, a proposition advanced by the plaintiff.

85 An authoritative discussion of malice (in the context of qualified privilege) can now be found in the joint judgment of Gaudron, McHugh and Gummow JJ in Roberts v Bass [2002] HCA 57 (12 December 2002) at paragraphs 75 to 104.

86 I return to Warne’s case. As the defendants submit, on reading Sir Frederick Pollack’s note it might seem to record that learned commentator’s dissent from the propositions accepted as flowing from Warne, (see Brown: The Law of Defamation in Canada (2nd ed) Vol 2 pp1399 [22.3(8)(c)(vi)] n 386, 1410 [22.3(9)(d)(v)] n 491; Gatley on Libel and Slander (9th ed) pp 818 [32.35] n 6, 837 [33.14] n 46; Fraser’s Law of Libel and Slander (6th ed) p 267 n (i); Odgers on Libel and Slander (5th ed) pp 349.10-350.1, 695.8-9; see also Spencer-Bower: The Law of Actionable Defamation (2nd ed) pp 138-139 esp n (z)). The note, however, appears to confirm what is understood by the decision. The first sentence in the note correctly noted that a plaintiff in an action for defamation in England was never called on to prove malice as an element of the tort, although apparently it was customary for malice and falsity to be pleaded. The history of such matters is examined by McHugh JA in Singleton v Ffrench (1986) 5 NSWLR 425 at 441C-444C (see also Spencer Bower at 236 and following).

87 Apparently, Sir Frederick Pollack was objecting, in his first sentence, to Warne’s standing as authority for the proposition that a plaintiff need call evidence of malice as part of his case in chief where that did not go to damages (see McHugh JA in Singleton at 224G). It is not quite clear from either report of Warne precisely what the purpose of calling the evidence was. In any event the point was well made. The second sentence of the note indicates that the learned editor did not dispute the applicability of the principle in circumstances where malice was properly in issue in relation to privilege or as an element of an aggravation of damages case.

88 As to the report of Collinson v Loder, it seems to support each of the propositions for which Warne stands, that is, the plaintiff’s right to call evidence of other publications in relation to aggravation and the defendant’s right to defend such a case by evidence of the truth of such publications. When one considers the report of Collinson it appears to be an even clearer case than Warne, as it points to the rationale for the rule, namely the unfairness of allowing a plaintiff to complain of words published on another occasion without making them the basis of an action, in circumstances where the defendant is not permitted to adduce evidence in response. An examination, however, of Collinson, as the plaintiff submits, really points to the defendants being permitted to call evidence of truth in mitigation of what would now be understood as a claim as falsity in another publication tendered in aggravation.

89 One found defamatory imputation from one publication has given rise to the breathtaking complexity of the current application.

90 As to the first and third components of the defendants’ position relating to the propriety and adequacy of the claim for aggravated damages and its particularisation, the defendants have failed to persuade me that either basis has been established.

91 The plaintiff has chosen to assert a case of entitlement to aggravated compensatory damages by reason of certain conduct on the part of the defendant. That conduct, relevantly, for the present application, is constituted by the first defendant’s publication of the identified pre and post additional articles. The plaintiff must prove that conduct and must also prove something about that conduct, namely, that it was improper, unjustifiable and lacking in good faith, as well, of course, as increasing the hurt to the plaintiff’s feelings. A fair reading of the voluminous particulars leads to the conclusion that the plaintiff’s case essentially is that the article sued upon is, and has been, part of a campaign of denigration. That ultimate proposition, that particulars seem to me tolerably clearly to indicate, will be established by inference. The matters from which that inference or will be available to be drawn, is the content of the articles in terms of tone and particularised areas of falsity. Further, that content, of necessity by reason of the ambit of the claim, is related, as it must be, to the publication of the article sued upon.

92 The plaintiff has provided “the best particulars he can” and cannot be criticised for that. That he cannot be so criticised in my view is quite right, insofar as there has been exposed an understandable claim being made. It is not open for the defendants to criticise the claim on the basis that the plaintiff has failed to particularise a claim which the defendants in some way are asserting that the plaintiff is making (the “conspiracy” allegation). If that is the “best” claim the plaintiff can make and particularise, the plaintiff is stuck with it, as are the defendants. The trial of it might be very simple in its dimension or quite substantial, but it is not so wanting in particularity or comprehensibility as to command its being struck out at this stage. I am not persuaded that it is oppressive, or otherwise embarrassing to the defendants and thus necessarily must be removed from the record.

93 One matter can be especially observed: the plaintiff has been at pains not to assert that the additional articles are available by way of aggravation of damages because they are, in a strict sense, “defamatory”. A good reason for this might be the curious position that arises from the two decisions of Hunt J based upon, if I might say so with the utmost respect, the curious foundation of Warne’s case. Warne’s case, if it is authority for anything, is authority for the proposition that a plaintiff relying, in aggravation of damages, on the publication by the defendant on another occasion of a “false” statement (necessarily connected with that published in the matter complained of) can expect a defendant to exercise a right, in that context, to establish the truth of that statement in mitigation of damages. To that extent a defendant is permitted to “defend” the additional publication. That is part and parcel of the defendant meeting the allegation of the plaintiff that the defendant’s conduct in publishing the additional material had what I will describe as the Triggell v Pheeney characteristics.

94 Trite though it is to say, if a plaintiff makes out a case that the defendants’ conduct has been improper, unjustifiable or lacking in good faith, the defendant is entitled to bring evidence to establish the contrary. A case having thus been made by the plaintiff, requiring a case to be made in opposition by the defendant, could be met by a case that does amount to proof of privilege, comment, or of any matter that is capable, as a matter of proof, of defeating the assertion of impropriety, unjustifiability or lack of good faith.

95 It is to that extent, again, that I am of the view that Hunt J’s observations in Gruzman and Grubic should be understood. The defendants are defending the publication to defeat the assertion that their conduct in publishing was improper, unjustifiable or lacking in good faith.

96 I am equally persuaded that neither Grubic nor Gruzman nor by an appropriate extrapolation of Warne that there exists a principle in New South Wales law that where a plaintiff relies upon additional publications connected with the matter complained of in a way that asserts that they are improper, unjustifiable and lacking in good faith and thereby entitling the plaintiff to an award of aggravated compensatory damages, that there is any obligation on the plaintiff, formally or by way of particulars, to specify defamatory imputations carried by such publications, in the absence of an express assertion that such publications, linked with the matter complained of sued upon, were themselves defamatory. It is to be borne in mind that the plaintiff complains of the conduct of the defendant in publishing the articles, the conduct having the Triggell v Pheeney qualities, which is subject to scrutiny.

97 Further, I add, conformably with what I have said above, that if having raised the issue in relation to the series of publications connected with the matter sued upon in the way the plaintiff has done, at the end of the day, in relation to any one of them, there is a remnant or a little bit of bad faith or a little bit of malice, it does not presently accord with principle that that “little remnant” should suffice to prove want of good faith, for example.

98 The plaintiff’s arguments as to the “phantom” defamation actions are of course attractive, but do not found my conclusion. The “real” issues have been sufficiently exposed to permit this matter to proceed to trial. There should be no “phantom” defamation actions because of the real issues, as I have sought to identify the above, that will arise upon the plaintiff establishing a case, and upon the defendants meeting it in terms of whether the defendants’ conduct in publishing the connected additional articles increased the hurt to the plaintiff’s feelings and was improper, unjustifiable and lacking in good faith. The plaintiff’s right so to assert and the defendants’ right to defend is not dependant upon the plaintiff notionally pleading actions for defamation in relation to each article.

99 The defendants’ application to strike out the claim for aggravated damages and particulars is dismissed. The defendants are to pay the plaintiff’s costs.

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Last Modified: 12/18/2002

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Citations

Alan Jones v John Fairfax Publications Pty Ltd [2002] NSWSC 1210

Most Recent Citation

Victorian Legal Services Board v Delahunty [2016] VCC 1829

Cases Citing This Decision

3

Di Girolamo v Fairfax Media Publications Pty Ltd [2014] NSWSC 1594

Hickey v West Australian Newspapers Limited [2009] WASC 50

Victorian Legal Services Board v Delahunty [2016] VCC 1829

Cases Cited

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Statutory Material Cited

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Phelps v Nationwide News Pty Ltd [2001] NSWSC 130

Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346

White v Overland [2001] FCA 1333

CITATION:	ALAN JONES v JOHN FAIRFAX PUBLICATIONS PTY LTD & ANOR [2002] NSWSC 1210
FILE NUMBER(S):	SC 20340 OF 1999
HEARING DATE(S):	18 March 2002
JUDGMENT DATE:	18 December 2002
PARTIES :	ALAN JONES (Plaintiff) v JOHN FAIRFAX (PUBLICATIONS) PTY LTD (First Defendant) DAVID LESER (Second Defendant)
JUDGMENT OF:	Levine J

COUNSEL :	T Blackburn (Plaintiff) S Rares SC / K Smark (Defendants)
SOLICITORS:	Blake Dawson Waldron (Plaintiff) Freehills (Defendants)
CATCHWORDS:	Aggravated damages - ambit and particularisation of claim - the rule in Triggell v Pheeney - pre and post matter complained of publications - any requirement to specify defamatory meanings
LEGISLATION CITED:	Defamation Act 1974
CASES CITED:	Antoniadis v TCN Channel Nine Pty Ltd, unreported, Levine J, 26 February 1997 Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 Barbaro v Amalgamated television Services Pty Ltd (1985) 1 NSLR 30 Burrows v Knightley & Anor (1987) 10 NSWLR 651 Cannock Chase District Council v Kelly [1978] 1 All ER 152 Collinson v Loder, Oxon. 1750 Doherty v Nationwide News Pty Ltd (1967) 86 WN (Part 1) NSW 181 Gilbert v Catholic Education Office [2002] NSWSC 214 Grubic v Mirror Newspapers Ltd, unreported, Hunt J, 7 December 1984 Gruzman v John Fairfax and Sons Ltd, unreported, Hunt J, 28 September 1981 Harrigan v Jones [2000] NSWSC 844 Horrocks v Lowe [1975] AC 132 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Makim v John Fairfax & Sons Ltd, unreported, Hunt J, 15 June 1990 Mowlds v Fergusson (1939) 40 SR(NSW) 311 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346, 28 September 2001 ((2001) 53 NSWLR 116) Philips v Philips (1878) 4 QBD 127 Roberts v Bass [2002] HCA 57 Rosenstraus v Muscat [1965] NSWR 302 Singleton v Ffrench (1986) 5 NSWLR 425 Smith v Richardson: (1737) Willes 21 [125 ER 1034] Spasojevic v Riznic [1982] 1 NSLWR 278 Triggell v Pheeney [1951] 82 CLR 497 Turquand v Fearon (1879) 48 LJQB 703 Walton v Gardiner (1993) 177 CLR 378 Warne v Chadwell (1819) 2 Stark. 456 [171 ER 704]; Revised Reports (1818-19) Vol 20 at 716 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 White v Overland [2001] FCA 1333
DECISION:	See paragraph 99