Manock v Channel 7 Adelaide Pty Ltd - [2005] SADC 168

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
MANOCK v CHANNEL 7 ADELAIDE PTY LTD
Judgment of His Honour Judge Muecke
9 December 2005
DEFAMATION
Defence of comment - whether particulars of public interest and particulars of facts upon which comment is based should be struck out
Pervan v North Queensland Newspaper Co. Ltd (1993) 178 CLR 309; Kemsley v Foot (1952) AC 345; Hawke v Tamworth Newspaper Co. Ltd (1983) 1 NSWLR 699, discussed.
Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; C v L & Ors (2005) SASC 315; Fogarty v Nationwide News Ltd (2005) WASC 2, at paras 46ff; Nationwide News Pty Ltd v Sleeman (2005) NSWCA 349, at paras 30ff, considered.

MANOCK v CHANNEL 7 ADELAIDE PTY LTD
[2005] SADC 168

This is an appeal and a cross-appeal against certain orders made by a Master on 27 September 2005.
At about 7.00 pm on or about 5 March 2004 the defendant, as part of a program known as “Today Tonight”, broadcast a promotional item for a future edition of that program (“the promotion”).
The promotion consisted of the host of “Today Tonight” depicted speaking and saying:
The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one Court to the next.
This was said as a picture of Dr Colin Manock (“the plaintiff”) was displayed against the background and slightly above the host.
By a Summons filed in this court on 22 March 2004 the plaintiff sued the defendant Channel 7 Adelaide Pty Ltd (“Channel 7”) claiming damages relating to the promotion. The plaintiff alleged:
The promotion in its ordinary and natural meaning meant and was understood to mean that the plaintiff had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder.
The plaintiff alleged that the promotion was calculated to damage him in his occupation as a forensic pathologist and by reason of the broadcast of the promotion he had been greatly injured and had suffered considerable distress and embarrassment. He claimed damages from Channel 7 including exemplary damages.
Channel 7 filed a Defence on 16 June 2004. It admitted the promotion broadcast but denied the promotion bore or was understood to bear or was capable of bearing the meaning pleaded by the plaintiff. Channel 7 pleaded a simple denial as to the other matters alleged by the plaintiff.
Channel 7 filed an Amended Defence on 2 March 2005. In its Amended Defence Channel 7 pleaded that if the promotion would be understood in its natural and ordinary meaning (and in the context of the whole promotion) to refer to the plaintiff (which was not admitted) the promotion would (not) be or would (not) be capable of being understood to refer solely or primarily to the plaintiff. Channel 7 then pleaded:
Further, or in the alternative, the defendant says that the following words:
1.     the new Keogh facts;
2.     the evidence they kept to themselves;
3.     the data, dates and documents that don’t add up; and
4.     the evidence changed from one Court to the next,
constitute fair comment on a matter of public interest.
Channel 7 then gave “Particulars of Public Interest” and “Particulars of facts upon which comment is based.” The particulars of public interest were given in paragraphs 3.5 to 3.17 and the particulars of facts upon which comment is based were given in paragraphs 3.18 to 3.39. Although the Master made orders on a number of other matters pleaded by Channel 7 in its Amended Defence the particulars in paragaphs 3.13 to 3.39 were the subject of the appeal before me.
By the appeal and the cross-appeal each of the Master’s rulings on each of paragraphs 3.13 to 3.39 were in issue on the appeal.
The pleadings as they stood at the time the matter was argued before the Master were to the following effect.
The plaintiff pleaded that the promotion consisted of the host of “Today Tonight” speaking and saying certain words whilst a picture of the plaintiff was displayed across the background and slightly above the host. The plaintiff alleged that the promotion in its ordinary and natural meaning meant and was understood to mean that the plaintiff had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder.
Channel 7 denied that the promotion bore or was understood to bear or was capable of bearing the meaning pleaded by the plaintiff. Channel 7 pleaded that if it would be understood in its natural and ordinary meaning to refer to the plaintiff (which was not admitted) the promotion would (not) be or would (not) be capable of being understood to refer solely or primarily to the plaintiff.
Channel 7 then pleaded, “further or in the alternative” that the words in the promotion upon which the plaintiff relied constitute fair comment on a matter of public interest. Channel 7 set out those words in four separate sub‑paragraphs which together make up all the words of the promotion upon which the plaintiff relied.
Channel 7 then set out what it alleged to be particulars of public interest and particulars of facts upon which comment was based. Those particulars comprise paragraphs 3.5 – 3.17 (particulars of public interest) and paragraphs 3.18 – 3.39 (particulars of facts upon which comment was based).
The plaintiff brought an application that paragraphs 3.13 to 3.39 inclusive be struck out. The plaintiff did not seek to have struck out paragraph 3 or paragraphs 3.1 to 3.4 of the Amended Defence. This is Channel 7’s plea of defence of fair comment. The plaintiff’s application to strike out paragraphs 3.13 to 3.39 was made where he had not filed a Reply to the Amended Defence. A Reply has still not been filed.
These matters are important both for the decision of the Master and on this appeal. I am asked to determine this appeal on the basis that Channel 7 pleads that the words set out in paragraphs 3.1 to 3.4 of the Amended Defence constitute fair comment on a matter of public interest where that plea was not the subject of challenge by the plaintiff before the Master or on this appeal. That is important because I consider that I must determine this appeal on the basis that the words which Channel 7 pleads constitute fair comment are capable of being construed as a comment. Such issue constitutes a preliminary legal issue in every case where comment is relied upon as a defence in a defamation case (see Hawke v Tamworth Newspaper Co. Ltd (1983) 1 NSWLR 699, 704). The answer to that question will often depend on whether the alleged comment was an expression of opinion based upon sufficiently stated or indicated facts or material in the publication (see C v L & Ors (2005) SASC 315, per Besanko J at paras 82 and 90). I do not consider that this question arises in this case because the substantive plea of fair comment is not challenged by the plaintiff.
As to a defence of comment in a defamation case, in Hawke Hunt J said at pp 703 – 704:
A comment may be expressed in the words of the matter complained of or it may be implied by them. The defence of comment is pleaded to the comment as so expressed or implied, not to the plaintiff’s imputation; and it is a defence only to that comment, not to the material upon which the comment is based. It necessarily follows that the defence of comment is an answer to the plaintiff’s cause of action (that is, to his pleaded imputation) only if that imputation is conveyed by the comment which was published. (references not reproduced)
(See also Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448, at 465 – 466.)
In what McHugh J. referred to as the conventional case of fair comment the basis of the comment appears in the publication (Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309, at 340 – 341). He said:
The reader is able to judge whether the facts justify the comment. Once the defendant proves the facts which are the basis of the comment, that person is entitled to the benefit of the defence unless the opinion expressed by the defendant was not honestly held. But in a situation such as that in Kemsley, the reader does not know what facts were the basis of the comment. Unless litigation ensues, the reader will never know what particular facts the defendant had in mind. Moreover, as the second passage from the speech of Lord Porter makes plain, the defence may succeed even though some or most of the “facts” which the defendant had in mind were untrue.
The case to which McHugh J referred was Kemsley v Foot (1952) AC 345. In that case Lord Porter said at pp 357 –358:
In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence. Does the same principle apply where the facts alleged are found not in the alleged libel but in particulars delivered in the course of the action? In my opinion, it does not. Where the facts are set out in the alleged libel, those to whom it is published can read them and may regard them as facts derogatory to the plaintiff; but where, as here, they are contained only in particulars and are not published to the world at large, they are not the subject matter of the comment but facts alleged to justify that comment.
In the present case, for instance, the substratum of fact upon which comment is based is that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press. The criticism is that the press is a low one. As I hold, any fact sufficient to justify that statement would entitle the defendants to succeed in a plea of fair comment. Twenty facts might be given in the particulars and only one justified, yet if that one fact were sufficient to support the comment so as to make it fair, a failure to prove the other nineteen would not of necessity defeat the defendant’s plea.
McHugh J also referred to the speech of Lord Oaksey in Kemsley v Foot (at p 361) which he referred to as equally illuminating:
A defendant who has made a defamatory comment on a matter of public importance must be entitled to adduce any relevant evidence to show that the comment was fair, and in order to do so must be entitled to allege and attempt to prove facts which he contends justify the comment. Whether the facts alleged are satisfactorily proved or not, it will still be for the jury to say whether they consider that the comment in the circumstances proved might have been made by an honest man.
I consider that I should decide this appeal on the basis of the principles just set out. I should examine the challenged particulars by considering whether they are proper particulars that may be relevant to justify, support or show that what Channel 7 pleads as comment was fair.
I do not consider that what was said in Fogarty v Nationwide News Ltd (2005) WASC 2, at paras 46ff and in Nationwide News Pty Ltd v Sleeman (2005) NSWCA 349, at paras 30ff requires a different approach. That is because I am here dealing with what are said to be particulars of words that are pleaded to constitute fair comment on a matter of public interest where that pleading is not challenged by the plaintiff. As previously indicated, I am not required to consider whether what was published was comment or a statement or statements of fact.
I now consider each of paragraphs 3.13 to 3.39 on this basis. It is convenient if I draw no distinction between whether a particular paragraph is the subject of the appeal or is the subject of the cross-appeal.
Paragraphs 3.13 to 3.17 are within the particulars of public interest pleaded by Channel 7. Investigations relating to the death of Ms Cheney, the trials and convictions of Mr Keogh and the fact that Mr Keogh has maintained his innocence are pleaded by Channel 7 as particulars of public interest in relation to the alleged comment in its promotion on “Today Tonight”. Those particulars (in paragraphs 3.5 to 3.12) are not challenged by the plaintiff.
A subject of public interest is one that “invites public attention” and includes “the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion”. (See Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183, 214, 215)
In my view the fact that Channel 7 can demonstrate that a subject or activities has or have been the subject of media attention does not establish and is not relevant to establish that a matter is a subject of public interest. A matter is a subject of public interest whether or not one paper or another has published something about it. I strike out paragraphs 3.13 to 3.16 of the Amended Defence.
In my view paragraph 3.17 says nothing about whether the subject of the promotion was on a matter of public interest. It is not relevant or admissible as to that issue. I strike out paragraph 3.17 of the Amended Defence.
The remaining impugned subparagraphs are said to be particulars of facts upon which comment is based. They are said to be particulars of facts alleged to justify the words that Channel 7 has pleaded in paragraph 3 of its Amended Defence that constitute fair comment. They are not, and do not purport to be, facts alleged by Channel 7 to support the imputation (or the natural and ordinary meaning) that the published words meant and were understood to mean that the plaintiff had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder. Channel 7 denied that its promotion bore or was understood to bear or was capable of bearing that meaning, and that if it was understood in its natural and ordinary meaning to refer to the plaintiff, it would not be or would not be capable of being understood to refer solely or primarily to the plaintiff.
One difficulty that arises in deciding this appeal is that the particulars in paragraphs 3.19 to 3.39 are not specifically identified as relating to which of the four separate groups of words which Channel 7 pleads together to constitute fair comment or, if more than one group, which groups, or whether they relate to all groups. It is also not apparent in some cases whether Channel 7 says that certain facts pleaded are what might be referred to as primary facts or whether they constitute what might be referred to as circumstantial matters in relation to which they, with other facts or circumstances, would be sufficient to support what is said to be a comment so as to make it fair. Channel 7 has not expressly stated in its particulars which alleged facts it will say fall into the category of “new Keogh facts”; which facts constitute evidence they kept to themselves; what it will say is data, dates and documents that don’t added up and what was evidence in one court which changed to the next court.
I am not, however, convinced that any of the particulars must be struck out unless Channel 7 pleads them in terms that they can be clearly characterised in the way referred to above. What Channel 7 has pleaded is that all of the particulars are facts upon which its comment was based. It will be for Channel 7 to seek to establish these facts at trial and to establish that its comment (assuming it was comment) was fair. In my view, as long as the pleaded particulars have some connection with the investigation of the murder of Ms Cheney and the Keogh trials I should not strike out those particulars before trial.
There are, however, some limited aspects of the particulars which could not be said to be particulars of facts relevant to support the comment so as to make it fair. Those are matter of which Channel 7 could not have been aware at the time of its broadcast of the promotion. I incorporate reference to those in the orders that I make.
I have concluded that, with the exception of the limited matters to which I have just referred, and to paragraph 3.18 insofar as it refers to paragraphs 3.5 and 3.13 to 3.17, the plaintiff’s application to strike out the paragraphs under the heading “Particulars of facts upon which comments based” should be refused.
My orders are as follows:
1. Paragraphs 3.13 to 3.17 inclusive of the Amended Defence be struck out.
2. Paragraph 3.18 of the Amended Defence be struck out but only insofar as it incorporates paragraphs 3.5 and 3.13 to 3.17.
3. The particulars given in paragraph 3.26.1 be struck out.
4. The particulars given in paragraph 3.26.3 be struck out but only if the affidavit referred to was prepared and sworn after 5 March 2004.
5. Paragraph 3.35.11.3.2 be struck out but only if the evidence referred to was given to the Medical Board Tribunal after 5 March 2004.
I shall hear the parties as to any ancillary orders, including costs.