Manock v Channel Seven Adelaide Pty Ltd
[2006] SASC 322
•18 October 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
MANOCK v CHANNEL SEVEN ADELAIDE PTY LTD
[2006] SASC 322
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice White and The Honourable Justice Layton)
18 October 2006
DEFAMATION - FAIR COMMENT - IN GENERAL - ELEMENTS AND NATURE OF DEFENCE
Appeal against decision of Judge of the District Court in relation to an application to strike out particulars pleaded to support a defence of fair comment in a claim in defamation - respondent pleaded defence of fair comment in defence of claim that it had defamed the appellant - whether a defendant in defamation proceedings is able to advance a defence of fair comment when the defence does not address the imputation pleaded by the plaintiff - discussion of defence of fair comment and applicable case law - appeal allowed - particulars pleaded in support of defence of fair comment struck out.
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309; Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728; Petritsis v Helenic Herald Pty Ltd (1978) 2 NSWLR 174 ; Reynolds v Times Newspapers Ltd [1999] 4 All ER 609; Albert v Tse Wai Chun Paul (2000) 10 BHRC 525; Lowe v Associated Newspapers Ltd [2006] 3 All ER 357 ; Kemsley v Foot [1952] AC 345; Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349; Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519; Polly Peck (Holdings) plc v Telford [1986] QB 1000; David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; Anderson v Nation Wide News Pty Ltd (2001) 3 VR 619; Advertiser-News Weekend Publishing Co Ltd v Manock (2000) 91 SASR 206; Fogarty v Nationwide News Ltd and Anor [2005] WASC 2, considered.
MANOCK v CHANNEL SEVEN ADELAIDE PTY LTD
[2006] SASC 322Full Court: Gray, White, Layton JJ
GRAY and LAYTON JJ:
This is an appeal against a decision of a Judge of the District Court. The appeal concerns the adequacy of particulars pleaded to support a defence of fair comment to a claim in defamation.
The question arising can be shortly stated: is a defendant in defamation proceedings able to advance a defence of fair comment when the defence does not address the imputation pleaded by the plaintiff?
Background
At approximately 7.00pm on 5 March 2004, the defendant and respondent, Channel Seven Adelaide Pty Ltd, broadcast a promotional item for a future edition of the program, “Today Tonight” (“the promotion”). The promotion depicted the host of Today Tonight 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.
As these words were said, a picture of Dr Colin Manock, the plaintiff and appellant, was displayed against the background and slightly above the host.
The pleadings
On 22 March 2004, Dr Manock issued proceedings in the District Court against Channel Seven claiming damages in respect of the promotion alleging that:
The promotion in its ordinary and natural meaning meant and was understood to mean that [Dr Manock] had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder.
Dr Manock claimed that the promotion was calculated to damage him in his occupation as a forensic pathologist. He alleged that the broadcast of the promotion had greatly injured his character, credit and reputation and had brought him into public scandal, odium and contempt. He said that he had suffered considerable distress and embarrassment. Dr Manock claimed damages, including exemplary damages.
In its defence filed on 16 June 2004, Channel Seven admitted the broadcast of the promotion but denied that the promotion bore or was understood to bear or was capable of bearing the meaning pleaded by Dr Manock. Channel Seven denied the other allegations.
It is relevant to note that Channel Seven denied that the words and image published were capable of bearing the imputation or meaning alleged by Dr Manock. It is this plea when contrasted to the fair comment plea that raises the difficulty raised by Dr Manock’s appeal. The plea of fair comment as particularised, it is said, addresses a different meaning or imputation from that alleged by Dr Manock in his statement of claim. The question to be answered is whether such an approach by a defendant when pleading and particularising fair comment is relevant and hence permissible.
On 12 July 2005, Channel Seven filed a further amended defence. It pleaded that the promotion, understood in its natural and ordinary meaning and in its entirety, did not refer to Dr Manock or was not capable of being understood to refer solely to Dr Manock. Channel Seven then pleaded:
3. Further, or in the alternative, [Channel Seven] says that the following words:
3.1 the new Keogh facts;
3.2 the evidence they kept to themselves;
3.3 the data, dates and documents that don’t add up; and
3.4 the evidence changed from one Court to the next,
constitute fair comment on a matter of public interest.
Channel Seven then pleaded particulars in respect of the defence of fair comment, first in respect of public interest:
Particulars of Public Interest
3.5 [Channel Seven] repeats paragraph 1.3 of the Statement of Claim.
[The plaintiff is:
The former Senior Director of Forensic Pathology at the State Forensic Science Centre.]
3.6 Adelaide lawyer, Ms Anna-Jane Cheney (“Ms Cheney”) was found dead in her bath at her Magill home in March 1994.
3.7 Following police and forensic investigations, Ms Cheney’s fiancé, Mr Henry Keogh (“Mr Keogh”), was arrested and charged with the murder of Ms Cheney.
3.8 No verdict was able to be able to be [sic] returned at the first trial of Mr Keogh on the murder charges.
3.9 Mr Keogh was convicted of murder on 23 August 1995 following a second trial. He was sentenced to life with a twenty-five (25) year non-parole period.
3.10 Mr Keogh appealed to the Court of Criminal Appeal and also applied for leave to appeal to the High Court.
3.11 Mr Keogh’s conviction was also the subject of two Petitions for Mercy to the Governor of South Australia.
3.12 Mr Keogh has maintained his innocence.
3.13 Developments in the murder investigations and the arrest and prosecution and conviction of Mr Keogh have been the subject of extensive media coverage and public debate and comment.
3.14 Concerns raised regarding the conviction of Mr Keogh have also been the subject of extensive and ongoing media coverage and public and parliamentary debate and comment.
3.15 On 22 October 2001, the Australian Broadcasting Corporation in its Four Corners program broadcast a number of concerns regarding the conviction of Mr Keogh and, in particular, the forensic investigations and evidence of [Dr Manock].
3.16 On 16 December 2001, the Sunday Mail newspaper published a number of concerns regarding the conviction of Mr Keogh and, in particular, the forensic investigations and evidence of [Dr Manock].
3.17 At the time of broadcast of the promotion by [Channel Seven], a complaint to the Medical Board of South Australia regarding [Dr Manock], including in relation to his investigations and evidence in the Ms Cheney case, was being dealt with by the Medical Board of South Australia.
It is to be observed that the matter of public interest identified appears to relate to a suggested wrongful conviction for murder arising from questionable forensic investigations by and evidence from Dr Manock. The particulars of public interest do not identify deliberate concealment of evidence as a matter of public interest.
Channel Seven then went on to plead particulars of the facts upon which it said the comment was based:
Particulars of facts upon which comment is based
3.18[Channel Seven] refers to and relies upon the matters set out in paragraphs 3.5-3.17 inclusive of this Amended Defence.
3.19[Dr Manock] failed to keep adequate records of his observations of the autopsy and to have the same signed and cross-checked
3.20[Dr Manock] failed to properly investigate other possible causes or contributors to the death.
3.21 The tests conducted or supervised by [Dr Manock] were inadequate in that:
3.21.1 The number and quality of histological samples taken was inadequate;
3.21.2The records of the histological samples taken were inadequate and incomplete;
3.21.3 The toxicological testing was inadequate;
3.21.4The records of the toxicological testing were inadequate and incomplete;
3.21.5There was inadequate recording of the storage of and chain of custody in relation to the test samples.
3.22 The nature and quality of the forensic photographs taken was inadequate:
3.22.1 Only black and white photographs were taken;
3.22.2 The number of photographs taken was inadequate;
3.22.3 The photographs were not adequately labelled or described.
3.23There were inconsistencies in the evidence given by prosecution witnesses regarding the photographs and new photographs were produced after the trials:
3.23.1The photographs produced at the second trial were reprints with differing colour and some had the image shown in the photograph altered from the originals.
3.23.2No proper record has been provided of the number of photographs which were taken at the autopsy, by whom they were taken, when they were taken and under what lighting conditions. For a period of time, the negatives could not be located at the Forensic Science Centre;
3.23.3The photographer has said in a police statement that only five photographs were taken and that all those photographs were taken with the use of poly light;
3.23.4At the second trial, [Dr Manock] produced a photograph which he said was taken with ordinary flash light;
3.23.5A further photograph has recently been produced which show incision marks which are inconsistent with the evidence given by [Dr Manock] as to the location from where the samples were taken.
3.24[Dr Manock] gave inaccurate evidence about the labelling of the histology samples:
3.24.1At the second trial, [Dr Manock] said he noted on the slides the site from which they came;
3.24.2 In fact, the only sample that was identified was that marked "head".
3.25There is inconsistency in the dating of expert reports prepared by [Dr Manock] and Dr Felgate whose reports were tendered in evidence at the trial of Keogh:
3.25.1[Dr Manock’s] report is dated 22 March 1994 but certain of the tests were not conducted until after 22 March;
3.25.2Toxicological testing was not requested until 3 months after the date of death and 2 months after [Dr Manock] had completed his report. [Dr Manock’s] report does not refer to the outstanding toxicological testing;
3.25.3[Dr Manock] noted in the coronial running sheet that the toxicological results were completed;
3.25.4There is an inconsistency between the evidence given and the reports produced as to the tests conducted and whether cyanide or chloroform tests were conducted.
3.26There is an inconsistency in the evidence given by the pathologists in relation to the alleged bruise on the left inner leg:
3.26.1[Dr Manock] stated at the Keogh trials that he had seen evidence of bruising on the left inner leg and that this bruising was consistent with a grip mark but failed to disclose that the histological sample taken from the left inner leg did not contain evidence of bruising.
Particulars
In evidence given to the Medical Board Tribunal in November 2004, [Dr Manock] admitted that there was no histological evidence of bruising from the sample taken from the left inner leg;
3.26.2The evidence given by Dr James as to the bruising on the left inner leg at the Keogh trials and to the Medical Tribunal was contradictory;
3.26.3Dr James failed to disclose at the Keogh trials that he had found no evidence of bruising in the histological sample taken from the inner left leg.
Particulars
In his affidavit to the Medical Tribunal, Dr James said that he had looked at the histological section which [Dr Manock] had claimed showed a bruise on the inside left leg but he could not find any bruising in that sample.
3.27There is an inconsistency between evidence given and documents produced in relation to the samples taken from the body:
3.27.1At the first trial, Dr James gave evidence about a body chart which he said was prepared by [Dr Manock];
3.27.2In that evidence, Dr James said that chart showed that no tissue was taken from the right leg;
3.27.3 That body chart was not tendered;
3.27.4At the second trial, [Dr Manock] produced the body chart which he had prepared and which was tendered;
3.27.5That body chart was inconsistent with the evidence given by Dr James in that it showed a tissue sample being taken from the right leg.
3.28[Dr Manock] failed to visit the scene until 3 months after the death and after he had completed the autopsy.
3.29[Dr Manock] failed to weigh or failed to properly or adequately record the weighing of the lungs of Ms Cheney despite the drowning.
3.30In the second Keogh trial, [Dr Manock] said that the position of the bruises on the lower left leg fitted a left hand grip. [Dr Manock] then said that the bruises were caused by a right hand grip.
3.31[Dr Manock] did not change his theory as to how the deceased was killed until his visit to the scene when he realised that his initial theory was not possible. If he did not change the reference to which hand the assailant used to grip the deceased's leg, the assailant would have had to have been standing inside the bathroom wall;
3.32The photograph tendered to the Court of Mr Keogh's right hand was printed in reverse so that it appeared to be a left hand.
3.33There are inconsistencies in relation to evidence and reports as to the bruising of the feet:
3.33.1Photographs taken on 21 March 1994 appear to show bruising of the feet;
3.33.2The Police running sheet has a note of 23 March 1994 which says that there was concern about the bruising of the feet but a later note that no photographs were taken by the Police of the feet;
3.33.3 [Dr Manock] gave evidence that there was not bruising of the feet.
3.34Normal Police and scientific procedure was not followed in the investigation of this death:
3.34.1 The scene was not cordoned off;
3.34.2 The Police did not wear protective clothing at the scene;
3.34.3The body was cremated prior to the Registrar of Births, Deaths & Marriages receiving notification of the cause of death from the Coroner and without [Dr Manock] advising the Coroner that he had concerns about the cause of death;
3.34.4The deceased's body, face and hair were tidied up during the hours after her death;
3.34.5The bath water was removed without any sample of water being taken;
3.34.6Statements were not taken from the Ambulance officers until some months after the night they attended;
3.34.7When pathologists retained on behalf of Mr Keogh requested the histological slides, they were not provided with all of the slides.
3.35The evidence given by [Dr Manock] at the Keogh trials was unreliable in that he excluded accidental drowning as a possible cause of death on unsound scientific bases and failed to adequately disclose the basis for that exclusion:
3.35.1[Dr Manock] failed to undertake or cause to be undertaken any or any proper scientific tests to exclude as a cause of death an epileptic seizure in the bath leading to unconsciousness and drowning;
3.35.2[Dr Manock] failed to undertake or cause to be undertaken any or any proper scientific tests to exclude as a cause of death a congenital heart defect causing the alleged victim to lose consciousness in the bath and drown;
3.35.3[Dr Manock] failed to undertake or cause to be undertaken any or any proper scientific tests to exclude as a cause of death an anaphylactic reaction in the bath leading to unconsciousness and drowning;
3.35.4[Dr Manock] expressed the opinion that he could find no explanation as to why the alleged victim could have drowned without foul play being involved when he knew that he had not excluded on any scientific basis the possible causes of death which did not involve foul play;
3.35.5[Dr Manock] propounded a theory that the alleged victim had been drowned in the bath by her assailant grasping her left ankle in his right hand and lifting her legs over her head thereby sliding her under the water and drowning her;
3.35.6the theory propounded by [Dr Manock] as referred to in paragraph 3.35.5 herein included the proposition that the sudden upending of the alleged victim would cause water to rush into the nasopharynx and cause unconsciousness quickly, thereby explaining the lack of evidence of a violent struggle in terms of marks on the body of the alleged victim and the accused;
3.35.7the proposition advanced by [Dr Manock] that water could rush into the nasopharynx and cause unconsciousness quickly was equally consistent with drowning having occurred by the alleged victim having suffered postural hypotension and fainted in the bath with consequent rushing of water into the nasopharynx leading to unconsciousness and drowning;
3.35.8the proposition advanced by [Dr Manock] that water could rush into the nasopharynx and cause unconsciousness quickly was equally consistent with drowning having occurred by the alleged victim having suffered any of either an epileptic seizure, a cardiac arrest or an anaphylactic reaction leading to a fall in the bath with consequent rushing of water into the nasopharynx leading to unconsciousness and drowning;
3.35.9[Dr Manock] wrongly rejected the possibility that unconsciousness had occurred from an accidental fall on the basis that a blow to the head sufficient to produce unconsciousness would have produced bruising or other observable damage to the brain on examination at autopsy;
3.35.10[Dr Manock’s] evidence that a blow to the head sufficient to produce unconsciousness would have produced bruising or other observable damage to the brain on examination at autopsy was not an opinion which would have been held by competent forensic pathologists;
3.35.11[Dr Manock] gave evidence that bruising on the left lower leg of the alleged victim was consistent with a hand grip having been made by the assailant who drowned her which evidence was incorrect in that :
3.35.11.1histological evidence did not support the conclusion that the marks on the alleged victim’s left lower leg were bruises at all;
3.35.11.2photographic evidence did not support the conclusion that the marks on the alleged victim’s left lower leg were bruises at all;
3.35.11.3if the marks on the alleged victim’s left lower leg were bruises:
3.35.11.3.1it was a matter of speculation that they were consistent with a hand grip as opposed to other causes;
3.35.11.3.2this would be inconsistent with [Dr Manock's] own evidence now given to the Medical Board Tribunal;
3.35.12it was inappropriate, misleading and unreliable for [Dr Manock] to propound a theory in evidence at trial that the alleged victim had been drowned in the bath by an assailant when he had failed to exclude by appropriate scientific means which were available to him possible causes of death which were accidental;
3.35.13the evidence given by [Dr Manock] as to cause of death was not refutable by enquiry or testing and was no more than [Dr Manock’s] theory which had no greater scientific merit than the theories of the cause of death being accidental;
3.35.14[Dr Manock] failed to make any or any proper enquiry as to the past medical history of the deceased for the purpose of excluding the presence of occult disease as a possible cause of unconsciousness or death;
3.35.15in giving his evidence at the Keogh trials, [Dr Manock] failed to properly or adequately disclose that he had excluded accidental drowning as a possible cause of death without conducting any or any proper scientific testing which would permit such exclusion.
3.36in the conduct of the autopsy by [Dr Manock] upon Ms Cheney, [Dr Manock] was required to conform to the following aims of a forensic autopsy :
3.36.1discover, describe and record the pathological processes present in the deceased;
3.36.2to relate these processes to the known medical history, to make conclusions about the cause of symptoms and signs observed in life and then to make conclusions about the medical cause of death and factors contributing to death;
3.36.3to contribute to the reconstruction of the circumstances surrounding the death. Where these circumstances are important or likely to be in dispute, then this will require consideration of the scene of the death as well as the relevant autopsy observations, many of which may be of trivial medical consequence;
3.36.4to record all the relevant observations and negative findings in such a way as to put other pathologists in the same position as the pathologist performing the autopsy;
3.37 in giving evidence in the Keogh trials [Dr Manock] was required to:
3.37.1express opinions as to the cause of a death which were based on scientific evidence;
3.37.2express opinions as to the cause of death which were based on scientific reasoning and collective, peer reviewed experience;
3.37.3to rely on autopsy results where the autopsies had been conducted in accordance with the aims set forth in paragraphs 3.36.1 – 3.36.4 but not otherwise;
3.37.4to refrain from expressing an opinion as to the cause of a death unless other causes of death had been excluded on appropriate scientific bases;
3.37.5to refrain from expressing opinions as to the cause of a death which were merely theories of [Dr Manock] based on his intuitive view of the particular case as opposed to conclusions reached by scientific reasoning which reasoning was capable of peer review;
3.37.6to refrain from expressing opinions as to the cause of a death which were speculative;
3.38 [Dr Manock] failed to:
3.38.1conform to the aims referred to in paragraph 3.36.1 – 3.36.4 herein in the performance of his tasks and duties in connection with the death of Ms Cheney;
3.38.2disclose in his evidence in the Keogh trials his failure to conform with those aims;
3.39 [Dr Manock] failed to:
3.39.1comply with the requirements referred to in paragraph 3.37 herein when giving evidence in the Keogh trials;
3.39.2disclose in his evidence in the Keogh trials his failure to comply with those requirements.
None of the alleged facts particularised appear to be directed to or to address the imputation pleaded by Dr Manock – the deliberate concealment of evidence from murder trials.
Decision of the Master
On 13 April 2005, Dr Manock applied to, inter alia, have paragraphs 3.13 to 3.39 of the Defence struck out on the basis that by those paragraphs, Channel Seven sought to address an alternate imputation to that pleaded by Dr Manock and that such approach was impermissible.
Dr Manock’s application came on for hearing before a Master on 28 June 2005. On 27 September 2005, the Master delivered his decision. In the course of his reasons, the Master observed:
I accept the [respondent’s] argument that the substratum of fact here is the Keogh case and where there has been a significant amount of publicity concerning the outcome of that trial.
The Master referred to the comments of McHugh J in Pervan v North Queensland Newspaper Co Ltd[1] in support of his conclusion.
[1] Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309.
In giving his decision, the Master dealt with paragraphs challenged in groups. In relation to paragraphs 3.13-3.16, the Master did not consider it appropriate that they be struck out. He considered that the evidence of the matters identified therein would be admissible to demonstrate that there had been a controversy relating to the conviction of Mr Keogh, which formed the underlying basis of the Channel Seven promotion.
The Master addressed paragraph 3.17 separately. The Master considered that the allegation was “completely irrelevant” having nothing to do with the concealment of evidence in the murder trial of Mr Keogh. He concluded that paragraph 3.17 should be struck out.
The Master then considered the remaining paragraphs, 3.18-3.39, individually. He ordered that paragraphs 3.18 and 3.26-3.28 be struck out. The Master made no order as to the remaining paragraphs.
Decision of the Judge
Dr Manock appealed to a Judge of the District Court against the decision of the Master not to make any order in respect of paragraphs 3.13-3.16, 3.19-3.25 and 3.29-3.39. Channel Seven filed a cross appeal, contending that the decision of the Master striking out paragraphs 3.17-3.18, 3.26-3.28 and 3.33 ought to be set aside. Accordingly, by appeal and cross-appeal, each of the Master’s rulings on paragraphs 3.13-3.19 were in issue on the appeal. The Judge summarised the issue before him in the following terms:
I am asked to determine this appeal on the basis that [Channel Seven] pleads the words set out in paragraphs 3.1 to 3.14 [the promotion] of the Amended Defence constitute fair comment on a matter of public interest where that plea was not the subject of challenge by [Dr Manock] 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 Seven] pleads constitute fair comment are capable of being construed as a comment.
The Judge then identified the question that he was to determine:
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 Seven] pleads as comment was fair.
…I am not required to consider whether what was published was comment or a statement or statements of fact.
The Judge approached the issue on the basis that it was sufficient that the pleaded facts related to the subject matter, or substratum of fact, upon which Channel Seven’s comment was based, namely, the forensic investigation into the murder of Ms Cheney and the trial of Mr Keogh. The Judge effectively treated the substratum of fact capable of supporting the defence of fair comment, as being anything to do with the investigation:
I am not, however, convinced that any of the particulars must be struck out unless [Channel Seven] 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 Seven] 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.
On 12 July 2006, the Judge made, inter alia, the following orders:
The order of Master Rice in his Reasons date 27 September 2005 striking out paragraph 3.18 of the Further Amended Defence be set aside, except insofar as it relates to paragraphs 3.5 and 3.13 to 3.17.
The order of Master Rice striking out paragraph 3.26 of the Further Amended Defence be set aside, except in respect of sub paragraphs 3.26.1 and 3.26.3.
The orders of Master Rice striking out paragraphs 3.27, 3.28, 3.33 and 3.34 of the Further Amended Defence be set aside.
Paragraph 3.35.11.3.2 of the Further Amended Defence be struck out.
The Appeal
The core complaint advanced by Dr Manock on this appeal was that paragraph 3 of the amended defence, when read with the particulars, did not address the defamatory imputation pleaded in the statement of claim and was therefore bad. Counsel submitted that the defence of fair comment had to be directed to the imputation or meaning attributed to the promotion as pleaded by Dr Manock. Counsel placed reliance on the observation in Lloyd v David Syme & Co Ltd[2] that there is no such thing as “comment in the air”. From this it follows that the substratum of fact said to give rise to the defence of fair comment must be capable of supporting, as comment, the imputation pleaded. Counsel submitted that the particulars to paragraph 3 of the amended defence, in their current form, were not capable of meeting this test.
[2] Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728.
However, Dr Manock did not directly challenge the plea that the words complained of constituted fair comment. Dr Manock did not seek to have paragraph 3 struck out. Rather, counsel submitted that the particulars in paragraphs 3.18-3.39 inclusive should be struck out and Channel Seven ought to be given one final opportunity to plead particulars to support its defence of fair comment. Counsel contended that in the event that Channel Seven was unable to do so, paragraph 3 should be struck out.
Counsel for Channel Seven submitted that the approach adopted by the District Court Judge was correct and in accordance with principle. Counsel contended that Channel Seven was doing no more than assert that the words alleged by Dr Manock to give rise to his pleaded imputation constituted fair comment. Counsel claimed that a plea of fair comment was not required to address meaning or imputation, instead it looked to the character of the vehicle by which the meanings are conveyed,[3] that is, the words themselves. It was said that to ascribe meaning was to confuse the defence of fair comment with the defence of justification. It was contended that it was the words themselves which were required to be looked at to determine whether they were fact or comment and if comment whether fair comment. It was not necessary for the comment to address the imputation pleaded by a plaintiff in determining whether the defence of fair comment applied. So long as the imputation was derived from the same words that were claimed to be the fair comment, the defence could be made out. Counsel submitted that Channel Seven was not confined to specifically addressing the imputation pleaded by Dr Manock before it was able to advance a defence of fair comment.
[3] Petritsis v Helenic Herald Pty Ltd (1978) 2 NSWLR 174 at 193 (Samuels JA).
The defence of fair comment
In Reynolds v Times Newspapers Ltd,[4] Lord Nicholls explained the defence in these terms:[5]
Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth.
In the case of statements of opinion on matters of public interest, that is the limit of what is necessary for protection of reputation. Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based.
A year later, in the Court of Final Appeal of Hong Kong, Lord Nicholls made similar observations in Albert v Tse Wai Chun Paul:[6]
The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting upon matters of public interest. This accords with the constitutional guarantee of freedom of expression. And it is in the public interest that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above. These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact. They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree.
[4] Reynolds v Times Newspapers Ltd [1999] 4 All ER 609.
[5] Reynolds v Times Newspapers Ltd [1999] 4 All ER 609 at 622.
[6] Albert v Tse Wai Chun Paul (2000) 10 BHRC 525 at 533.
To make out a defence of fair comment, the following must be established: that the matter or words in question were comment rather than a statement of fact; that the comment related to a matter of public interest; that the comment sufficiently indicated the facts on which it was made; that those facts are true or protected by privilege; and that the comment is fair in the sense that any fair-minded person could express the opinion in question honestly.[7]
[7] See Albert v Tse Wai Chun Paul (2000) 10 BHRC 525 at 529 (Lord Nicholls), cited with approval by Eady J in Lowe v Associated Newspapers Ltd [2006] 3 All ER 357 at 365-366.
Channel Seven’s pleading of fair comment asserts that the comment was based on facts that were not published in the promotional item, but which were sufficiently identified by the impugned words as forming the substratum of fact supporting the comment. The matter of public interest identified in the promotion was “Keogh”. This by implication was a reference to the convicted murderer Mr Keogh. In South Australia there has been much public agitation centred around what is said to be the wrongful conviction of Mr Keogh. The pleaded facts to support “public interest” go to this topic. On the hearing of this appeal, the plea that the words in the promotion were comment was not challenged. The words characterised as comment were then pleaded to be a matter of public interest.
Counsel for Dr Manock submitted that the public interest identified was not “the deliberate concealment of evidence”. It was further submitted that the challenged particulars raised matters of professional incompetence, failure to meet professional standards, and inconsistent and inadequate expert evidence. However, it was contended that the particulars did not support the “deliberate concealment of evidence”.
The class of fair comment defence relied upon by Channel Seven is the third of the four “classes” of the defence identified by McHugh J in Pervan v North Queensland Newspaper Co Ltd - where the defamatory comment is based on facts which are not published in the article - akin to the defence as arose in Kemsley v Foot.[8] McHugh J described the defence in this situation in the following terms:[9]
To raise the defence of fair comment in this class of case, it is sufficient that either expressly or by implication the defendant has identified the subject matter of the comment. The defence is available even though the publication does not state or indicate the facts which form the basis of the comment. As long as the subject matter of the comment is identified, the defendant is entitled to the benefit of the defence of fair comment if he or she is able to prove one or more facts which will justify the comment. The difference between identifying the subject matter or substratum of fact of the comment and the facts which justify the comment is vital. The comment must indicate the subject matter or substratum of fact of the comment, but the defence does not fail because the publication does not indicate the individual facts which are the basis of the comment. It is the “substratum” of fact not the individual facts which must be identified.
[8] Kemsley v Foot [1952] AC 345.
[9] Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 340 (footnotes omitted).
In the course of his reasoning, McHugh J referred to the observations of Lord Porter in Kemsley, where his Lordship identified the test for the defence of fair comment as follows:[10]
The question, therefore, in all cases is whether there is a sufficient substratum of fact stated or indicated in the words which are the subject-matter of the action, and I find my view well expressed in the remarks contained in Odgers on Libel and Slander (6th ed., 1929), at p 166. “Sometimes, however,” he says, “it is difficult to distinguish an allegation of fact from an expression of opinion. It often depends on what is stated in the rest of the article. If the defendant accurately states what some public man has really done, and then asserts that ‘such conduct is disgraceful,’ this is merely the expression of his opinion, his comment on the plaintiff’s conduct. So, while without setting it out, he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well founded; and, therefore, what would otherwise have been an allegation of fact becomes merely a comment. But if he asserts that the plaintiff has been guilty of disgraceful conduct, and does not state what that conduct was, this is an allegation of fact for which there is no defence but privilege or truth. The same considerations apply where a defendant has drawn from certain facts an inference derogatory to the plaintiff. If he states the bare inference without the facts on which it is based, such inference will be treated as an allegation of fact. But if he sets out the facts correctly, and then gives his inference, stating it as his inference from those facts, such inference will, as a rule, be deemed a comment. But even in this case the writer must be careful to state the inference as an inference and not to assert it as a new and independent fact; otherwise, his inference will become something more than a comment, and he may be driven to justify it as an allegation of fact.”
But the question whether an inference is a bare inference in this sense must depend upon all the circumstances. Indeed, it was ultimately admitted on behalf of the appellant that the facts necessary to justify comment might be implied from the terms of the impugned article and therefore the inquiry ceases to be – Can the defendant point to definite assertions of fact in the alleged libel upon which the comment is made? and becomes – is there subject-matter indicated with sufficient clarity to justify comment being made? and was the comment actually made such as an honest, though prejudiced, man might make?
…
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 that press is a low one. As I hold, any facts 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.
The observations of Lord Oaksey are also apposite:[11]
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.
[10] Kemsley v Foot [1952] AC 345 at 356-358.
[11] Kemsley v Foot [1952] AC 345 at 361.
Lord Oaksey concluded:[12]
I think, therefore that the words “lower than” are words of comment and that the particulars which are sought to be struck out were alleged for the purpose of supporting the comment and if it is proved to the satisfaction of the jury that an honest man might have made such a comment on Lord Kemsley’s newspapers, the defence of fair comment will have been established. It is one thing to publish a defamatory statement of fact; it is quite another to allege a defamatory statement of fact in a pleading in order to show that a published comment was fair. A defendant who had 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.
[12] Kemsley v Foot [1952] AC 345 at 361.
Lord Porter, in obiter in Kemsley, put beyond doubt that a public trial is of the nature of a play or spectacle, as described by McHugh J, in that it exists in the public sphere:[13]
In many cases it is not possible for everyone who is interested, to attend a trial, but in so far as there is room for them in the court all are entitled to do so, and the subject-matter upon which comment can be made is indicated to the world at large.
[13] Kemsley v Foot [1952] AC 345 at 355 (Lord Porter).
Must the defence meet the imputation pleaded?
As earlier observed, counsel for Channel Seven submitted that it was not necessary for his client to attribute a meaning to the impugned words. Rather, it was submitted, the words should be taken to mean what they say.
In Lloyd v David Syme & Co Ltd, the Privy Council, on appeal from the New South Wales Court of Appeal, Lord Keith of Kinkell observed:[14]
There is no such thing as comment in the air. Comment must have a meaning.
[14] Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 735.
Recently, the New South Wales Court of Appeal, in Nationwide News Pty Ltd v Sleeman,[15] referred to Lloyd v David Syme & Co Ltd in support of the proposition that where a defendant raises a defence of comment, that defence must go to the defamatory imputation found to have been conveyed and not to the published matter conveying the imputation. It is to be borne in mind that this decision was made in the context of particular legislation. If this reasoning applies to the present case, Channel Seven must meet the cause of action in question and not just the background to the cause of action or some cause of action not sued upon.[16]
[15] Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349.
[16] Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349 at [30].
In so deciding, the Court of Appeal also applied the observations of Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Limited,[17] where their Honours expressly rejected the notion that a defendant to a claim in defamation could plead a meaning attributed to the impugned words different from that contended for by a plaintiff and then seek to justify that different meaning. Their Honours referred to observations of Lord O’Connor in Polly Peck v Telford,[18] where his Lordship said that such a practice was permissible. Brennan CJ and McHugh J then went on to observe:[19]
With great respect to his Lordship, such an approach is contrary to the basic rules of common law pleadings and in many contexts will raise issues which can only embarrass the fair trial of the action. Leaving aside technical pleas such as pleas in abatement, defences are either by way of denial or confession and avoidance. A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of not guilty. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing. Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant’s plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise. A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication. [emphasis added]
Later their Honours added:[20]
No injustice is done by holding a defendant to the fundamental principles of pleading by requiring a defence to respond to the statement of claim. The Rules of the Supreme Court of South Australia require that a defence “specifically admit or deny every allegation of fact (including particulars) in the pleading to which the defence … relates, and allegations which are not specifically denied shall be deemed to be admitted”. The rules thus confirm the common law principle that the defence must plead to the allegations in the statement of claim.
[17] Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519.
[18] Polly Peck (Holdings) plc v Telford [1986] QB 1000.
[19] Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [8].
[20] Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [13].
In David Syme & Co Ltd v Hore-Lacy,[21] Ormiston J considered at length the High Court’s decision in Chakravati and then concluded:[22]
It would therefore seem desirable, if it was not already required by authority, both that defendants should plead the meanings by way of false innuendo or imputation which they place upon the publication relied upon and that they should plead justification in terms which makes clear the version or versions of meaning of the publication to which that justification is directed. Whatever criticisms the minority levelled at the practice, it seems fortunately restricted to defamation actions and Chakravarti would at least restrict the extent to which imputations and false innuendoes which depart from those pleaded may be relied upon at trial. It would seem, moreover, that even the majority would permit a very limited departure from the case pleaded by the plaintiff; in other words, the jury will have to be told that they cannot find for the plaintiff unless they agree with the meaning or one of the meanings put forward on behalf of the plaintiff, or unless the meaning they would give the publication was only a nuance or variant, not substantially different or more serious from that proposed by the plaintiff.
If that be correct, then a defendant should not need to, nor be permitted to, plead or rely on a meaning other than one which is not more serious and otherwise is not substantially different. [emphasis original]
[21] David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667.
[22] David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at [21]-[22].
Ormiston J indicated that he agreed in substance with the views of Charles J, who identified a limited exception to the principle established in Chakravati. Charles J observed:[23]
The principal criticism of the practice sanctioned in Polly Peck, of permitting a defendant to plead and justify a meaning different from that contended for by the plaintiff are that such an approach allows the defendant to raise false issues which can only embarrass the fair trial of the action and will on occasions unfairly prevent a plaintiff from pursuing a claim in defamation, in the manner explained by Brennan CJ and McHugh J in Chakravarti [at [8]-[12]]. The setting up of false issues by the defendant in this way may well make admissible a substantial body of evidence that would otherwise be irrelevant and thus greatly lengthen proceedings. But it seems to me that the same criticisms would not hold good if the defendant were limited to justifying a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand.
Nor should a defendant be unfairly prejudiced if the defendant were limited to pleading a meaning which was sufficiently close (in the manner already suggested) to the plaintiff's meanings, so that the plaintiff himself could succeed upon that meaning on the pleadings as they stand. If the defendant is limited to pleading a meaning on which the plaintiff would be permitted to go to the jury, a false issue is not thereby raised. The issues are instead identified and confined, to the benefit of the court and the parties. Of course, if the plaintiff cannot make good a meaning amongst those identified, his action must fail, and the defendant has no need to plead any other meaning.
Then later:[24]
…it seems to me that if the defendant by its pleading indicates an intention to justify a meaning different from those relied on by the plaintiff, the defendant should be required to state what that meaning is, with the necessary particulars of the facts on which the justification is based.
The plaintiff, faced with such a pleading, is, I think, entitled to know clearly what the defendants are intending to justify, and the failure to provide such particulars might well cause the plaintiff serious disadvantage at the trial, with the potential for the trial to be disrupted and the proceedings lengthened or delayed. I agree with Ormiston JA therefore, for the reasons he gives, that a defendant which pleads that it proposes to justify meanings by way of false innuendo other than those alleged by the plaintiff, should plead those meanings and that it should plead justification in terms which make clear the version of meaning of the publication to which that justification is directed.
Whilst these remarks were directed at the defence of justification, they are equally applicable in the context of the defence of fair comment as indicated by Brennan CJ and McHugh J in Chakravati.
[23] David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at [53]-[54].
[24] David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 at [58]-[59].
The same approach was adopted in Anderson v Nation Wide News Pty Ltd,[25] by Ashley J who considered the legal principles with respect to a Polly Peck defence as they applied in Victoria. His Honour observed:[26]
It is true that, in Victoria, regardless of how many meanings are conveyed by a particular piece of matter, only one cause of action arises from it. But I do not consider that it follows from that circumstance that there is congruency if a defence of fair comment addresses a severable defamatory meaning of the publication which is not relied upon by the plaintiff. So to conclude would be to ignore the fact that nowadays a plaintiff is in general bound by the meanings which he attributes to a publication. It would be to ignore the fact that where several distinct defamatory allegations having no common sting are made in a publication the plaintiff can sue upon one only, and the defendant cannot justify by pleading the truth of another. It would be to ignore the developments concerning the Polly Peck defence which have taken place in Australia in recent years.
…
All in all, the position concerning fair comment set out in Polly Peck, as understood in Lloyd, appears to be consistent with the way in which the common law concerning defamation has developed in this country.
In Chakravati v Advertiser Newspapers Ltd Brennan CJ and McHugh J agreed in the result but differed in their reasoning from the other members of the court. In particular they regarded the pleading practice established by Polly Peck as being contrary to the basic rules of common law pleadings. But for present purposes, and bearing in mind the fact that in South Australia, where Chakravati originated, the plaintiff sues on the publication, their Honours significantly said this:
A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication.
Allowing for the fact that on the majority view – and see later Hore-Lacy – a defendant may plead a Polly Peck defence in pretty limited circumstances, what their Honours said in the context of a suit brought in an essentially common law jurisdiction seems to offer support for my conclusion.
[25] Anderson v Nation Wide News Pty Ltd (2001) 3 VR 619.
[26] Anderson v Nation Wide News Pty Ltd (2001) 3 VR 619 at [76]-[83] (footnotes omitted).
In Advertiser-News Weekend Publishing Co Ltd v Manock,[27] this Court was required to determine whether Channel Seven was entitled to plead and prove the truth of a meaning attributed to a publication that differed from the meaning pleaded by Channel Seven - a Polly Peck defence. The conclusion reached by the Court was a defendant may only plead and seek to justify such alternative meanings as may be relied on by Dr Manock to obtain a judgment, even though Dr Manock has not pleaded them.
[27] Advertiser-News Weekend Publishing Co Ltd v Manock (2000) 91 SASR 206.
Doyle CJ, with whom Vanstone and White JJ agreed, discussed the apparent tension between the approach of Brennan CJ and McHugh J in Chakravati and that of Ormiston and Charles JJA in Hore-Lacy. His Honour ultimately concluded that the approaches were not inconsistent. The Chief Justice respectfully agreed in principle with the views expressed by Brennan CJ and McHugh J as to the pleading of a Polly Peck defence, subject to the limited exception recognised by Charles JA.[28] Doyle CJ observed:[29]
In my respectful opinion the observations of Brennan CJ and McHugh J are supported by practical considerations. The approach that they take is conducive to the fair conduct of a trial. I agree with them that under the law as stated in Polly Peck it appears open to a defendant to plead and justify meanings that differ from the meaning on which the plaintiff relies, resulting in the introduction of evidence that will increase the length of the trial, may tend to cloud the issues, and may work to the unfair prejudice of the plaintiff.
The latitude that the principle stated in Polly Peck allows will lead to defendants re-stating defamatory imputations at higher levels of generality, then seeking to justify the more general imputation by evidence that does not bear directly on the matter of which the plaintiff complains. On that point it is pertinent to recall the observation of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corp (1990) 21 NSWLR 135 at 137: "Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation."
For these reasons, as a matter of principle, as a matter of fairness and having regard to the public interest in the efficient conduct of a trial, the law as stated by O'Connor LJ in Polly Peck should not be applied in this State. A preferable approach is that adopted by Charles JA in Hore-Lacy (at [53] and [54]). For those reasons I agree with the judge that the pleading of an alternative meaning should be struck out. I would dismiss the appeal against this aspect of the judge's reasons.
[28] Advertiser-News Weekend Publishing Co Ltd v Manock (2000) 91 SASR 206 at [73], [75].
[29] Advertiser-News Weekend Publishing Co Ltd v Manock (2000) 91 SASR 206 at [80]-[82].
The analysis of these authorities allows the following conclusion – a plea of fair comment must address the imputation pleaded by the plaintiff. This however allows a defendant to address any substantially similar or lesser meaning on which a plaintiff may be permitted to rely at trial. To put the matter in the negative, the substance of the comment cannot have a substantially different or more serious meaning than the imputation alleged by the plaintiff.
Returning to the submissions made by counsel for Channel Seven, the approach taken in these cases does not support the proposition that the pleaded imputation does not need to be addressed by the comment. Nor does it support the contention that there is a sufficient connection between the defence of fair comment and the imputation alleged by the plaintiff if both rely on the same words. The approach contended for by counsel was said to derive from observations made by Samuels JA in Petritsis v Helenic Herald PtyLtd.[30] In that case, Samuels JA specifically directed his attention to the provisions of the Defamation Act 1974 (NSW), which in his view distinguished between imputations on the one hand and the publication of the matter on the other. Samuels JA concluded that the defence of fair comment must be directed not to the imputation specified in the statement of claim, but to parts of the matter that the defendant claimed to be the comment.[31] Some later decisions that have considered the defence of fair comment within the context of the New South Wales legislation suggest a different approach.[32]
[30] Petritsis v Helenic Herald PtyLtd (1978) 2 NSWLR 174.
[31] Petritsis v Helenic Herald Pty Ltd (1978) 2 NSWLR 174 at 193 (Samuels JA).
[32] Nationwide News Pty Ltd v Sleeman [2005] NSWCA 349 at [30]-[32].
In order to make out a defence of fair comment, it is not sufficient to assert simply that the imputation alleged to be the defamation and the comment rely on the same words. Counsel for Channel Seven’s contention that a defence arises from a connection between the imputation alleged and the defence of fair comment, simply because the words which found the imputation and the comment are common words, should be rejected. Such an approach is contrary to the authorities discussed earlier.
Channel Seven cannot seek to defend a matter by asserting a substantially different or more serious meaning than that relied on by Dr Manock. The defence of fair comment must address the imputation pleaded. If Channel Seven’s particularised plea does not address the pleaded imputation in the manner set out above, it should be characterised as an argumentative plea. Such a plea raises a false issue and would impede a fair trial. It follows therefore that the substratum of facts relied upon by Channel Seven to support the defence of fair comment must be capable of supporting the comment substantially in the sense pleaded by Dr Manock. If the pleaded substratum is incapable of doing so, the particulars should be struck out.[33]
[33] See Fogarty v Nationwide News Ltd and Anor [2005] WASC 2 at [57] where Le Miere J concluded similarly.
Are the particulars pleaded capable of supporting the defence of fair comment?
Having established that in order to maintain a legitimate defence of fair comment, Channel Seven must plead the facts said to support as comment the imputation pleaded by Dr Manock, it is now necessary to consider whether the particulars pleaded in support of paragraph 3 meet this criterion.
The particulars pleaded by Channel Seven in support of its plea of fair comment, set out above, are numerous. However, none are capable of founding as fair comment the imputation complained of - that Dr Manock had deliberately concealed evidence from the murder trials of Mr Keogh.
An analysis of the particulars discloses matters that can be characterised as a failure to meet professional standards, unprofessional conduct, inconsistencies in expert evidence and inadequacies in professional practice and in expert evidence. Nowhere do the particulars address the deliberate concealment of evidence.
Conclusion
We would allow the appeal. We would strike out particulars numbered 3.18-3.39 inclusive.
WHITE J: I agree that this appeal should be allowed. I agree with the orders proposed by Gray and Layton JJ. I agree generally with the reasons of Gray and Layton JJ. There is nothing which I wish to add.
Manock v Channel Seven Adelaide Pty Ltd [2006] SASC 322
Clarke v Channel 9 South Australia Pty Ltd (No 2) [2006] SADC 139
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