Li v Herald & Weekly Times Limited
[2005] VSC 304
•10 August 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 4641 of 2004
| ABBIE LI and BY FOREVER YOUNG PTY LTD | Plaintiffs |
| v | |
| HERALD & WEEKLY TIMES LIMITED (ACN 004 113 937) and KEITH MOOR | Defendants |
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JUDGE: | GILLARD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 June 2005 (before Bongiorno J) | |
DATE OF JUDGMENT: | 10 August 2005 | |
CASE MAY BE CITED AS: | Li and anor v Herald & Weekly Times Limited and anor | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 304 | |
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DEFAMATION – Libel – Request for particulars – Identity of prospective witness concerning justification defence – Request for identification of comment in fair comment defence – Both requests refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr M.F. Wheelahan S.C. with Mr A. Strahan | Holding Redlich |
| For the Defendants | Mr W.T. Houghton Q.C. with Ms G. Schoff | Corrs Chambers Westgarth |
HIS HONOUR:
This is the return of an application by the plaintiffs seeking further and better particulars of the defendants’ defence. The application came on for hearing before Bongiorno J, the Judge in charge of the Major Torts List, on 17 June 2005. The parties were represented and filed written submissions and addressed his Honour. After his Honour had reserved his decision, he formed the opinion that he should not hear the matter because of a pending contempt proceeding brought against the first defendant at his instigation. Accordingly, he informed the parties and the matter was transferred to me to consider on the papers. I had the benefit of the transcript of the proceeding. The parties were invited to make further submissions if they thought appropriate, however they declined.
Parties
The first plaintiff, Abbie Li (“Dr Li”) at all relevant times was a practitioner of Chinese medicine registered under the Chinese Medicine Registration Act 2000 carrying on a practice in Chinese natural medicine from rooms in Collins Street, Melbourne.
Dr Li conducts her practice under a business name “Forever Young” which is owned by the second plaintiff, By Forever Young Pty Ltd (“the company”).
The first defendant, Herald & Weekly Times Pty Ltd, is the proprietor and publisher of the Herald Sun newspaper, which has an extensive circulation throughout Victoria. The second defendant, Keith Moor (“the journalist”), was at all relevant times a journalist employed by the Herald Sun.
The Proceeding
On 20 February 2004 the plaintiffs instituted a proceeding against the two defendants in this Court by writ seeking damages for defamation. Dr Li claims damages in respect of eight articles published by the Herald Sun to its readers during the period from 26 May 2003 to 17 April 2004. The company has sought damages for alleged injury to its trading reputation in respect of four articles published during the period 26 May 2003 to 14 July 2003.
Each plaintiff has pleaded in respect to each article, that the article was defamatory in its natural and ordinary meaning and in accordance with the modern practice, has set out the alleged defamatory meanings.
In their defence, the defendants denied that any of the articles were defamatory of the relevant plaintiff and further denied that the article meant or was understood to mean or was capable of meaning or being understood to mean any of the meanings which have been pleaded by each plaintiff. In addition, the defendants alleged that because the articles alleged to have defamed the company have not identified the company there is no cause of action against either defendant at the suit of the plaintiff company.
In addition, the defendants have in respect to certain of the pleaded imputations alleged the defence of justification. Finally the defendants have relied upon the rolled-up plea of fair comment. The latter is pleaded as follows:
“31.Further, in so far as the articles consist of statements of fact, the same are true in substance and in fact and, in so far as the same consist of expressions of opinion the same are fair comment upon a matter of public interest.”
The thrust of the articles is that Dr Abbie Li runs an illgal brothel at her rooms in Collins Street by providing sexual services to her clients and providing fake receipts for her clients to enable them to claim reimbursement from their health insurers for the services provided. The allegation is that Dr Li operates an illegal brothel which aids a fraud on the health insurers. Insofar as the articles identify the company, it is pleaded that the articles alleged that the company operated an illegal brothel, that it held itself out as a medical clinic whereas in fact it was an illegal brothel and provided fake medical receipts for the purpose of the patients defrauding their health insurers.
Request for further particulars
On 18 February 2005 the plaintiffs’ solicitors forwarded a request for further and better particulars of the defence. On 13 April 2005 the defendants provided further and better particulars. The plaintiffs’ solicitors by letter dated 13 May 2005 informed the defendants’ solicitors that they sought additional further and better particulars. They identified the particulars which it was contended were inadequate.
Paragraph 30 of the defence alleges the defence of justification. Particulars were subjoined to the paragraph. Particulars (c), (d) and (e) assert that a representative of the legal brothel industry made an appointment at Dr Li’s premises, that he attended and that she performed sexual services upon him for which she charged $80 and provided a receipt which falsely described the services provided as “remedial massage”.
The plaintiffs requested further and better particulars of the allegation. The request was in the following terms –
“1. Of the particulars under paragraph 30 –
(a) …
(b)Identify the representative of the legal brothel industry referred to in sub-paragraphs (c), (d) and (e) thereof.
(c)…
(d)…”
The defendants’ response to the request was as follows –
“1. As to paragraph 1 thereof:
(a) …
(b)Save to say that the representative of the legal brothel industry referred to is a consultant to the Australian Adult Entertainment Industry Inc which represents the interest, inter alia, of the legal brothel industry, the defendants’ object to providing the particulars sought on the basis that they would otherwise identify a witness in the proceeding.”
It is contended by the plaintiffs that they are entitled to have the witness identified and it is the contention of the defendants that they are not so entitled. That is the issue for consideration and determination.
As stated, paragraph 31 of the defence alleged a rolled-up plea of fair comment.
The plaintiffs requested particulars of the defence as follows –
“2 of paragraph 31 –
(a) …
(b)State the substance the comment conveyed by the first article.”
Sub-paragraphs (c)-(i) (inclusive) made the same request in relation to the second to eighth article (inclusive).
The defendants’ response to those requests was as follows –
“2. With respect to paragraph 2 thereof:
(a) …
(b)-(i)The defendants object to providing the particulars sought on the basis that the request is not a proper request for particulars.”
The issue for determination is whether the plaintiffs are entitled to the particulars sought, namely the comment conveyed where it is alleged there is a rolled-up plea of fair comment. The plaintiffs rely on the decision of Ashley J in Anderson v Nationwide News Pty Ltd[1] which was applied in another application in the same case.[2] Ashley J held, following an English decision, that the defendant publisher relying upon the defence of fair comment is obliged to give particulars of “the substance of the comment” i.e. a statement of it.[3] The defendants contend that the decision was wrong and in any event did not apply to a rolled-up plea.
[1](2001) 3 VR 619.
[2]No. 2 (2002) 3 VR 639.
[3]See p.632.
Identity of Prospective Witness
In the article published on 26 May 2003 (“the first article”) appeared the following –
“The Herald Sun bought Chinese herbal medicines from Dr Li and was given a receipt saying the $85 handed over was for acupuncture.
It also arranged for a member of the legal brothel industry to visit Dr Li’s Collins Street suites.
She provided him with a sexual service and gave him a receipt for an $80 remedial massage – the full cost of which is refundable by some health insurance funds; including Medibank Private.”
As stated, the particulars subjoined to paragraph 30 set out the facts concerning the making of the appointment, the attendance, the provision of sexual services and the false receipt.
Counsel for the defendants stated that it was proposed to call that person as a witness. On any view he is indeed a very important witness to the plea of justification. In addition, the defendants’ solicitors have provided a copy of the statutory declaration declared by the witness on 14 May 2003 with his name and address and signature blotted out. The question is whether the plaintiffs are entitled to the name of the person prior to trial. In addition, the plaintiffs have discovered documents which indicate that Dr Li knows the date upon which the person attended her premises and has discovered an entry in her appointment book for that date at which that person attended upon her and she has discovered the receipt. However it would appear that she does not know who that person is.
It is clear that at trial the person will be a witness and is anticipated will give evidence in accordance with his statutory declaration. It is obvious that the plaintiffs will not be caught by surprise; they have the assertion in the article which is said to be true in substance and in fact and they have a copy of the statutory declaration. They have every opportunity to prepare their case to meet the expected evidence if they can.
This is a common law proceeding. In the past, parties prepared their cases in anticipation of the likely witnesses to be called by the other party but nevertheless there was always the risk of a surprise witness. Advocates had to be extremely nimble on their feet to deal with the surprise witnesses and of course their ability depended very much upon their preparation. It was appreciated that in certain circumstances this was unfair to a litigant and accordingly rules were enacted in respect to certain witnesses such as experts. A party seeking to call an expert was required to give copies of reports and the like to other parties.[4] More recently a practice has been established in this Court of ordering that in certain cases, especially commercial cases, evidence‑in‑chief will be given by witness statements that must be filed and delivered prior to trial. In addition, the Listing Master, when setting down other cases, sometimes requires the parties to exchange summaries of evidence to be given by witnesses. That is not the procedure in the Major Torts List. I do not criticise for one moment the practice in the Major Torts List. If that practice is followed in the present proceeding, then the plaintiffs will not be informed of the name of this proposed witness.
[4]See Orders 33 and 44 of the Rules of Court.
I must say that I do not understand why the defendants are so coy in naming the prospective witness. There may be an argument, consistent with the modern practice of litigants putting their cards on the table face up, that the Court should order that the name of the witness be disclosed. However, that is a matter that in my view is best left to the Judge in charge of the Major Torts List. Further, I say nothing about the adequacy of the discovery. In addition to their submission that the name of the person is not a material fact and hence does not have to be pleaded, the defendants rely upon the newspaper rule of confidentiality. The parties have referred to a number of cases.
Before considering the cases it is appropriate to consider the request in accordance with the principles of pleading. Order 13 of the Rules of Court lays down the requirements of pleadings. Rule 13.02 deals with the content of a pleading. Rule 13.02(1)(a) states the general rule as follows –
“13.02(1) Every pleading shall –
(a)contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved.”
Rule 13.07 deals with matters which must be pleaded in any pleading subsequent to a statement of claim. Rule 13.07(1)(d) requires a party to plead specifically anything that might take the opposite party by surprise. Rule 13.10 is concerned with particulars of pleading. Sub‑paragraphs (1) and (2) state the mandatory rules relevant to the present proceeding. They provide –
“13.10(1) Every pleading shall contain the necessary particulars of any fact or matter pleaded.
(2) Without limiting paragraph (1), particulars shall be given if they are necessary to enable the opposite party to plead or to define the questions for trial or to avoid surprise at trial.”
It is clear from the rules that the defendants were obliged to plead all material facts on which they rely, and must state any fact which might take the opposite party by surprise. The facts in issue must be particularised if necessary, to enable the opposite party to plead, to define the issues and to avoid surprise at trial.
The defendants have pleaded justification. They carry the burden. The defence must meet the sting of a libel. The particulars subjoined to paragraph 30 of the amended defence, being particulars (c), (d) and (e) deal with a specific incident involving a person who attended at Dr Li’s premises, received a massage, sexual services and was given an allegedly false receipt. These facts are relied upon to meet the sting of the libel that Dr Li operated an illegal brothel, was a prostitute, performed sexual services on a person and provided false medical receipts. The defence is pleaded to a number of articles. By way of example, the particulars are pleaded to meet paragraph 7 of the amended statement of claim concerning the first article being the first four imputations pleaded on behalf of the plaintiff, Dr Li.
In order to prove the defence of justification it is necessary to prove that the defamatory sting is true in substance and in fact. Taking the first article and on the assumption that it conveys the first four pleaded imputations the defendants would have to prove Dr Li operated an illegal brothel, she was a prostitute, performed sexual services for reward on a person arranged by the Herald‑Sun to visit her suite and provided a false medical receipt. Dr Li has not pleaded in the alleged defamatory imputation that the person was a member of the legal brothel industry. The defendants have in their defence pleaded he was and the article so states. I doubt if it is a material fact which must be proven in order for the plea of justification to succeed.[5] It is not, in my opinion, necessary for the defendant to prove the name of the person or, indeed, whether the person is male or female. I doubt whether the defendants have to prove he was a member of the legal brothel industry. In my opinion, based upon the well established principles concerning pleadings, it is unnecessary for the defendants to prove the name of the person in question. The name is not a material fact essential to the justification defence. It was submitted on behalf of the plaintiffs that the words complained of referred to “a member of the legal brothel industry” who visited Dr Li’s premises. If that has to be proven the person’s name is not a material fact. It is a fact that an appointment was made, the person sought a massage, was allegedly given a sexual service and given a fraudulent receipt, which are the essential matters to prove to meet the sting of a libel. Of course in giving his evidence his name will be revealed.
[5]See Sutherland v Stopes [1925] AC 47 at 97.
The plaintiffs relied upon two cases. In the first, Marriott v Chamberlain,[6] the Court of Appeal was dealing with an application for further answers to interrogatories. It is important to note that there is a difference between discovering facts by discovery of documents or interrogatories and particulars. The point was made by the learned authors of Odgers on Libel and Slander[7] when they said –
[6](1886) 17 QBD 154
[7]5th ed at p658
“But interrogatories are not, like pleadings, confined to the material facts on which a party relies for his claim or defence; they may be directed to the facts which will be proved at the trial as evidence of those material facts. Either party may interrogate as to any link in the chain of proof necessary to substantiate his case; the question must be relevant as leading up to a matter in issue in the action.”
Reference was made to Marriott’s case. The point was made in Marriott’s case where Lord Esher MR[8] said this –
[8]At 163
“The right to interrogate is not confined to the facts directly in issue, but extends to any facts the existence or non-existence of which is relevant to the existence or non-existence of facts directly in issue.”
It is not a ground for refusing an order to answer interrogatories, if the interrogatory is a proper one, that the answer may reveal the name of any witnesses. However, it is a ground of objection if the interrogatory seeks to ascertain the evidence by which the interrogated party intends to prove his case, including the identity of witnesses.[9] The reasoning in Marriott v Chamberlain does provide some support for my conclusion based upon the principles of pleading and the rules. In that case the plaintiff alleged that the substance of the libel was that he had fabricated a story to the effect that a certain circular letter purporting to be signed by the defendant had been sent around to the defendant’s competitors in business. The plaintiff stated that he had seen a copy of the letter and that two such letters were in existence. The defendant pleaded justification. In interrogatories the plaintiff was asked to state the name and address of his informant in whose hands he had seen the copy of the letter and the names and addresses of the persons to whom the letter had been sent and in whose possession the two letters existed. He refused on the ground that he intended to call the persons as witnesses. The reasoning of Bowen LJ identified the issue which involved knowing the names of the persons involved. Bowen LJ said[10] –
[9]See Rule 30.07(3)(c) and Williams, Civil Procedure, para I30.07.45.
[10]At p164
“The libel charges a plaintiff with having fabricated a story about a copy of a letter supposed to have been written. So the plaintiff has two strings to his bow. He may say, first, that the letter existed in fact, or secondly, by way of alternative, that, though it did not exist, he had reasonable grounds for supposing that it did exist. If he succeeds in establishing either of these positions he wins the action.”
His Lordship went on to observe that the defendant would have to prove both of these propositions and if he failed to prove both, he would fail. He then stated the following –
“Anything, therefore, which tends to prove or disprove either of those propositions is material to his case.”
The reason why the defendant was entitled to know the names of the witnesses involved was summarised by his Lordship[11] when he said –
“He [the plaintiff] says in effect that he was shown a copy of the letter by a person on whom he could rely, and that duplicates are now in the possession of particular persons. The truth or falsehood of these statements will make all the difference in the aspect of the case.” (Emphasis added.)
[11]At p.164
It is clear that the plaintiff was relying upon the fact that he had reasonable grounds for supposing the letter was written, and what is material to the reasonableness of his belief depends upon the particular person or persons who showed him or told him about the letter. In my opinion that is a clear example of the name of a person being a material fact in issue.
His Lordship concluded:
“But, although one party cannot compel the other to disclose the names of witnesses as such, yet, if the name of a person is a relevant fact in the case, the right that would otherwise exist to information with regard to such fact is not displaced by the assertion that such information involves the disclosure of the name of a witness. It seems to me that, as the controversy between these parties has shaped itself, the information required is relevant to the defendant’s case and must therefore be given.”[12]
[12]At pp.164-5.
The Court held that the defendant was entitled to know the names and addresses of the persons referred to.
That is not the case here. The authority does not assist the plaintiffs.
The second case is Wootton v Sievier[13]. This was also a case in libel and was concerned with a plaintiff’s application for further and better particulars of a plea of justification. The plaintiff, an owner and trainer of racehorses, alleged in his statement of claim that he had been defamed in the defendants’ publication “Winning Post” where it was alleged that he had been guilty of gross dishonesty in training and running horses and particularly that he had on several occasions conspired with trainers and with jockeys to defraud bookmakers and owners of racehorses and the public generally for his own pecuniary gain. The defendants pleaded justification. They delivered particulars which gave numerous instances of races in which horses were asserted to have been pulled by their jockeys acting under the plaintiff’s orders. The plaintiff sought particulars of the names of the bookmakers with whom the plaintiff was alleged to have backed the horses in question and the amounts of the bets. Kennedy LJ delivered the judgment of the Court and stated a number of well-established principles[14]. He said –
“In every case in which the defence raises an imputation of misconduct against him, a plaintiff ought to be enabled to go to court with knowledge not merely of a general case he has to meet, but also the acts which it is alleged that he has committed and upon which the defendant intends to rely as justifying the imputation.”
[13][1913] 3 KB 499
[14]At p503
His Lordship also referred to the well-established rule that “the plea ought to state the charge with the same precision as in an indictment” where in a libel case a serious charge is made against the plaintiff and the defendant pleads justification. His Lordship then went on to say this –
“Further, as a general rule, it is now, I think, established, that, if the particulars are such as the defendant ought to give, he cannot refuse to do so merely on the ground that his answer will disclose the names of persons whom he may intend to call as witnesses at the trial.”
The Court held that particulars should be given which would disclose the names of trainers, jockeys and horses. Kennedy LJ[15] stated the reason for so ordering as follows –
“There can be no doubt – indeed the particulars themselves shew it – that a most material part, if not the most material part, of the structure of the justification is the fact therein alleged, that the plaintiff’s object in his dishonest arrangements with certain other trainers and with certain jockeys was on several occasions to procure the success of certain horses which he had backed. Such backing is asserted in paragraphs 3-12 (inclusive) of the particulars delivered. The plaintiff asks that he may have delivered to him such particulars of the betting transactions intended by this bare and general allegation of backing as will enable him to identify them – to know, that is to say, before the trial what are the betting transactions which he is accused of having entered into contrary to his honour and his duty, and upon which the defendants intend to found an allegation, on each of the specified occasions, of a corrupt interest.” (Emphases added.)
[15]At p505
As his Lordship made plain, the particulars were necessary to enable the plaintiff to meet the case upon that point.
In my opinion that is not the position here. The plaintiffs have chapter and verse of the allegation, and the only thing they do not have is the actual name of the person. The name of the person is not essential to the defendants’ proof or the plaintiffs’ case in meeting the defence. The plaintiffs are not entitled to the name of the representative of the legal brothel industry.
The defendants also rely upon the newspaper rule, namely, the rule of practice whereby courts will not order the disclosure of the identity of a media defendant’s confidential source unless it is necessary in the interest of justice. See McGuiness v Attorney-General (Victoria)[16] and John Fairfax & Sons Ltd v Cojuangco[17]. In light of my conclusion, it is unnecessary to consider the application of this rule. In the latter case the High Court made it clear that the mere fact that disclosure of a source would be relevant to an issue in the case is not sufficient on its own to require disclosure, and secondly that the prima facie rule at the interlocutory stage is that disclosure will not be compelled unless it is necessary to do justice between the parties. If I was otherwise of the opinion that it was essential and necessary for the plaintiffs’ case refuting the plea of justification to know the name of the person, I would not have refused an order requiring disclosure under the newspaper rule. However, it is unnecessary for me to say anything more on this point.
[16](1940) 63 CLR 73 at 104
[17](1988) 165 CLR 346 at 354
This is a common law proceeding. It is not a criminal proceeding. In the latter, the rule is that the accused person must be apprised of the evidence of all witnesses who are going to be called by the Crown. That is not the position in a civil proceeding. On the other hand procedures have changed over the last 20 or 30 years, aimed at avoiding surprise at trial and encouraging settlements. I have referred to some of the changes. No doubt the complaint made by the plaintiffs in the present proceeding is that, although they know what the witness is to say they do not know who the witness is and, accordingly, will be deprived of any opportunity pre-trial of gathering any information concerning the credibility of the witness. Consistent with the position today which is aimed at ensuring the parties have full knowledge of the case against them and the avoidance of surprise, I see no reason why application should not be made in the present proceeding at the time when the trial is set down for hearing for a direction that a the parties exchange a list of witnesses and their addresses. Whether such a direction is appropriate is a question for the Judge in charge of the Major Torts List.
Particulars of Comment
As stated, the defendants have pleaded the rolled-up plea of fair comment. The plaintiffs made a request for particulars stating “the substance of the comment conveyed by the … articles”. The defendants refuse to supply any particulars and rely upon the decision of the Court of Appeal in Aga Khan v Times Publishing Co[18] which established a practice which was followed in this State up to the decision of Ashley J in 2001.
[18][1924] 1 KB 675
The defence of fair comment is a defence commonly pleaded by newspapers. The earliest case in which such a defence is reported was Dibdin v Swan and Bostock[19]. The defence was formally raised by simply pleading the general issue but after the Common Law Procedure Act 1852 was passed it became common to plead a special plea in addition to the plea of “not guilty”. There is no doubt that by the turn of the nineteenth century, fair comment had to be specially pleaded. See generally Odgers supra[20].
[19](1793) 1 Esp. 28; 170 ER 269
[20]At p634
The rolled-up plea was sanctioned by the Divisional Court in Lord Penrhyn v Licensed Victuallers Mirror[21]. A plea in that form requires the defendant to justify the statements of fact contained in the libel or prove they are privileged. It does not require justification of the comment. See Odgers supra[22]. It is not two defences. It is one, namely, a defence of fair comment.[23]
[21](1890) 7 Times LR 1.
[22]At p.202 and p.634.
[23]See Sutherland v Stopes [1925] AC 62. The elements of the defence are set out in Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1 at 55.
In the case of the Aga Khan v Times Publishing Co[24] the Court was dealing with an action in libel. The defendant pleaded a rolled-up plea of fair comment. The plaintiff took out a summons seeking further particulars. He sought particulars of what the defendants were saying were allegations of fact and what were expressions of opinion. Bankes LJ[25] stated the rule concerning the entitlement to particulars was “only for the purpose of ascertaining the nature of his opponent’s case that he has to meet, and not for the purpose of ascertaining the evidence by which his opponent proposes to prove it”.
[24][1924] 1 KB 675.
[25]At 679.
His Lordship then went on to observe that by the rolled-up plea the publisher ties himself down to the admission that it is the statements of fact contained in the libel and no others on which he intends to rely. He then stated –
“It cannot possibly assist the plaintiff that the defendant should be required to pick out the statements which they say are statements of facts and those which they say are matters of opinion, for the category to which the several statements belong is a question for the jury, subject to a direction from the judge.”
(Emphasis added)
He observed that in some cases a judge might tell a jury that a particular statement is not an expression of opinion but then noted that there are statements in which different minds may take different views. His Lordship then made the obvious statement that if required to specify which were facts and which were comment, a defendant would be justified in saying in respect to the doubtful ones that it was a question for the jury. The Court of Appeal was of the view that no useful purpose would be achieved by requiring the defendant publisher to provide the particulars.
The statement of principle in the Aga Khan case was applied in England until the Rules of Court were amended in 1949. The rules required a defendant who pleaded a rolled-up plea to give particulars stating which of the words were statements of fact and the facts and matters which were relied upon in support of the allegation that they were true.[26] In Cunningham-Howie v F W Dimbleby & Sons Ltd[27], Denning LJ, speaking for the Court of Appeal[28], noted that several judges including Atkin and Scrutton LJJ had expressed their strong disapproval of the Aga Khan case and noted that in 1949 the Rules of Court were altered. His Lordship then observed, “That new rule does away with an anomaly of the law.” The Victorian rules have not been so amended.
[26]See Order 19 r.22A [English Rules of Court].
[27][1951] 1 KB 360.
[28]At 363.
I interpolate to observe that the rolled-up plea is no longer pleaded in England. The Aga Khan case was followed in this State in Watt v The Herald & Weekly Times Ltd.[29]
[29][1998] 3 VR 740.
In considering the request by the plaintiffs in this proceeding, it is important at the outset to determine what is requested. What is requested is an identification of what constitutes the comment which was said to be fair. In other words, what is the comment said to be conveyed by the article which is said to be fair in the circumstances?
In my opinion the answer to that question must be considered in the context of each of the imputations of each article. If an imputation is proven to be defamatory of the plaintiff, it is that defamatory sting which the fair comment defence is pleaded to meet. The defamatory sting once proven identifies the subject matter of the comment. Of course if it is not comment but a statement of fact, the defence fails. I do not see how the plaintiffs can say they need identification of the comment by the publisher on the ground of surprise, because it must follow that the defence seeks to meet the plaintiffs’ case based on the imputations pleaded and found by the jury to be defamatory. In those circumstances, the request for further particulars is unnecessary. The plaintiffs’ statement of claim identifies the subject of a comment, if it is a comment.
In my opinion the course of the litigation will identify what the defence of fair comment is pleaded to meet, and the plaintiff would have no difficulty prior to trial appreciating what the defence is seeking to meet. The plaintiff at the date of issue of the writ identifies the words complained of which contain the defamatory imputations. In accordance with the modern practice, the plaintiff is bound to plead the defamatory imputations. By doing so the plaintiff establishes the parameters of the defamatory sting or stings which he or she relies on in the words complained of. In most cases the publisher does not admit that the words were defamatory or that the imputations pleaded were conveyed by the words complained of. The publisher does not give particulars of what he says the words mean. At trial a publisher is entitled to submit to the tribunal of fact that the words do not mean what the plaintiff says they mean and that they do not convey the defamatory imputations pleaded or any similar meaning which may be defamatory. What the words mean and whether they are defamatory and if so, in what meaning, are questions for the jury. It is not until the tribunal of fact decides what is or is not defamatory that the defence of fair comment is to be considered. The defence of fair comment is a defence to the defamatory sting or stings found by the tribunal of fact. Once the defamatory sting or stings are found, the issue becomes whether the defendant has proven each element of the defence. Whether or not the defamatory stings constitute a statement of fact or of opinion does not depend upon evidence but depends upon a consideration of the words complained of. The trial judge does have a part to play prior to the tribunal of fact determining whether or not the defence is made out. If the trial is by judge and jury, it is necessary for the court to rule whether a particular conclusion would be open to a jury. Hence, the court will determine whether or not the possible defamatory stings are to be regarded as statements of fact or capable of being regarded as comments.[30]
[30]See Jones v Skelton [1963] 3 All ER 952 at 965.
In the course of preparation for trial the plaintiff should have no difficulty determining what is the subject of the defence of fair comment. The subject matter is identified by the pleaded defamatory stings. Whether or not the defamatory stings in the context of the words complained of are comment or fact is a question which has to be considered by the trial judge. There is no doubt that different minds may reach different conclusions. But that is part and parcel of defamation litigation. The plaintiffs’ advisers in this case could be under no illusion as to what the defence of fair comment seeks to meet and that is the alleged defamatory stings pleaded by the plaintiffs. The defence seeks to meet the libel complained of. It is the established defamatory imputations which identify the subject matter of the fair comment defence. By way of example in the present case, in the first article it is contended that the sting of the libel is that Dr Li operated an illegal brothel, she was a prostitute who performed sexual services for reward to a person whom the Herald Sun had arranged to visit her, that she provided false medical receipts to her patients so they could recover the cost from their health insurer, and finally, that she held herself out as a legitimate medical practitioner when in fact she was a prostitute. If the first article imputes those matters or any of them, and assuming they or some of them are defamatory, it is those matters which the fair comment defence seeks to meet. It is the imputations found as defamatory which in fact identify the subject matter of the fair comment defence.
In Control Risks Ltd v New Library Ltd[31] the Court of Appeal held that a defendant relying on the defence of fair comment had to plead with some precision the comment relied upon as constituting the defence so that the plaintiff knew the case he had to meet. Nicholls LJ[32] after noting that a plaintiff is entitled to know what case he has to meet under a defence of fair comment observed that when justification was pleaded the defendant was required to spell out in his pleading the meanings of the words he would seek to justify. His Lordship then said:
“In my view by parity of reasoning, when fair comment is pleaded the defendant must spell out, with sufficient precision to enable the plaintiff to know what case he has to meet, what is the comment which the defendant will seek to say attracts the fair comment defence.”
[31][1990] 1 WLR 183.
[32]At p.189.
His Lordship went on to observe that he thought there would be many cases in which the determination of what was said to be comment would not be difficult, but in the case the court was dealing with there was difficulty determining what was the comment. I interpolate to make two observations about that case. First, the alleged libel was contained in a book over many pages. This involved reference to a number of passages in the book. Secondly, as required by the English Rules of Court, the defendant publisher provided nine paragraphs of particulars of facts relied upon and which were asserted to be true. The end result was far from clear as to the issue of comment and hence the decision to require particulars of what was alleged to be the comment. In Anderson v Nationwide News Pty Ltd,[33] Ashley J followed what Nicholls LJ said in Control Risk Ltd v New Library Ltd and held that a plaintiff was entitled to particulars of the substance of the comment.
[33](2003) 3 VR 619.
His Honour said[34] -
“How should the substance of alleged comment be specified? Bearing in mind the fact that the object of pleading in particulars is to enlighten the reader, and not to confuse or obscure, I think that no particular form should be required, but simply that the substance of what is said to be comment should be made clear.”
His Honour then went on to observe –
“But what needs to be specified is simply the substance of the alleged comment. Once that is done, the connection or disconnection between the comment and the meanings assigned to the article by the plaintiff (and the defendant, if a defendant pleads) should be very clear.”
[34]At p.632.
His Honour’s conclusion was based upon the ordinary pleading rules, namely that a party should not be required to disclose the evidence but –
“a party should be required to spell out the case which the opposing party has to meet. In a case of a defence of fair comment that should extend to the identification of the alleged comment. That does not mean identification of the particular words in the publication which is said to constitute comment but rather a statement of the substance of the comment.”[35]
[35]See at p632
If Ashley J was laying down a general rule to be applied in all cases where the defence of fair comment is pleaded, I disagree. I would not accept that as a general rule a plaintiff is entitled to particulars of the substance of the comment when a fair comment defence is pleaded. I do not accept that there is any such general rule. It would only be in circumstances where it was impossible on the face of the pleadings and the words complained of, to determine what the fair comment defence was seeking to meet. In those circumstances some of the blame may attach to the plaintiff’s statement of claim. It may be that in a particular case there would be such an intermingling of fact and comment that it would be necessary in order to fully understand the issues at trial to require a defendant to identify the substance of the fair comment. If the respective cases are properly pleaded it would indeed be a rare case that would not identify the substance of the comment upon reading the pleadings and the words complained of. Each case must depend upon its own particular circumstances. In my opinion the amended statement of claim pleads the defamatory imputations and it is those defamatory imputations which identify the defamatory stings and it is those defamatory stings, if found, which the defence seeks to meet. In those circumstances, the subject matter of the fair comment has been identified by the pleadings. It follows that the plaintiffs are not entitled to the particulars.
Conclusion
Subject to any submissions by counsel, I propose the following orders –
(i)that the plaintiffs’ application for further and better particulars of the defendants’ defence is dismissed;
(ii)that the plaintiffs pay the defendants’ costs.
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