New South Wales v IG Index PLC
[2007] VSCA 212
•27 September 2007
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 8556 of 2004
| STATE OF NEW SOUTH WALES | Applicant | |
| v. | ||
| IG INDEX plc (ARBN 099 337 390) and ANOR | Respondents (Plaintiffs) | |
| No. 8557 of 2004 | ||
| STATE OF NEW SOUTH WALES | Applicant | |
| v. | ||
| MATTHEW WILLIAM WILSON | Respondent (Plaintiff) | |
| No. 8558 of 2004 | ||
| STATE OF NEW SOUTH WALES | Applicant | |
| v. | ||
| ANDREW ROBERT MACKAY | Respondent (Plaintiff) | |
| No. 8559 of 2004 | ||
| STATE OF NEW SOUTH WALES | Applicant | |
| v. | ||
| CRAIG WILLIAM THIESSEN and ORS | Respondents (Plaintiffs) | |
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JUDGES: | BUCHANAN, NETTLE and NEAVE JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 27 September 2007 | |
DATE OF JUDGMENT: | 27 September 2007 | |
MEDIUM NEUTRAL CITATION: | [2007] VSCA 212 | |
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DEFAMATION — Statements by NSW Government regarding the legality of spread betting services offered by the applicants — Application for leave to appeal against decision to strike out various comment/fair comment defences — Nature of comment/fair comment defences at common law and under the legislation of various States and Territories — Context relevant to comment/fair comment defences — Where words capable of various meanings, comment/fair comment defences not bound to fail — Words used did not carry a necessary implication which was false — Application for leave to appeal granted and appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant in each case | Mr R G McHugh SC with Mr R K Weaver | Crown Solicitor of New South Wales |
| For the Respondent/s in each case | Mr W T Houghton QC with Dr M J Collins | Peter G Richards |
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BUCHANAN JA:
I will ask Neave JA to deliver the first judgment.
NEAVE JA:
The plaintiffs, including IG Index plc, Wilson, Mackay and Thiessen, brought four separate defamation actions against the applicant in these proceedings, the State of New South Wales (‘NSW’). NSW now seeks leave to appeal against interlocutory orders made by a Supreme Court judge, which struck out its pleaded defences of comment and fair comment. On 8 September 2006, the leave application was referred to the court which would hear the appeal.
Each of the plaintiffs relies on allegedly defamatory statements made by a spokesman for the New South Wales Gaming Minister, Richard Face, to a journalist, which were then republished by The Australian newspaper in every state and territory.
The plaintiffs carried on a business of spread betting in New South Wales. In other proceedings in this matter, the judge explained the concept of spread betting as follows:
Spread betting is a form of gambling in which the punter backs his predictions of the movements in indices associated with prices in organised markets such as commodity, shares, futures, currency and similar markets. … It is sufficient for present purposes that spread betting is, on IG Index’s own material, clearly a form of gambling.[1]
[1][2006] VSC 108, [2]. See also City Index Ltd v Leslie (1992) 1 QB 98, 103 (Lord Donaldson MR).
The statements which the plaintiffs allege were made by the spokesman to a journalist with The Australian were that:
IG has flouted NSW gaming laws by operating in the state;
IG has illegally advertised its services in the state; and
We have no doubt it is illegal and we have told ASIC.
These words were then republished by The Australian in an article which read as follows:[2]
[2]Tim Boreham, ‘IG Index betting stoush spreads’ The Australian 12 August 2002, 27.
IG INDEX BETTING STOUSH SPREADS
ONLY weeks after opening its doors in Australia, the financial spread betting firm IG Index faces a regulatory stoush which could go all the way to the High Court.
The heart of the issue is whether the firm – which offers betting on financial products such as shares, market indices and commodities – is governed by state or federal laws.
The NSW Government claims the firm, which is licensed under The Australian Securities and Investments Commission financial services regime, has flouted NSW gaming laws by operating in the state.
A spokesman for NSW Gaming Minister Richard Face said IG had illegally advertised its services in the state.
This was because the firm was not a licensed bookmaker and had not received approval to offer its form of gambling.
‘We have no doubt it is illegal and we have told ASIC’ the spokesman said.
A spokesman for Victorian Gaming Minister John Pandazopoulos said legal advice was being sought from the Solicitor-General.
‘It is still uncertain as to how it should be dealt with,’ he said.
‘We are treating it with the seriousness it deserves.’
The Queensland Government is seeking legal advice on the matter but a spokesman for the Treasurer, Terry Mackenroth, said that, at this stage, the matter seemed one for the federal Government.
‘We believe that they have the power either under the Integrated Gambling Act or company law, but we need further advice,’ he said.
However, IG has confidence in its legal advice, provided by a prominent QC.
IG is relying on a provision of the Corporations law, section 1101I which states that gaming and wagering laws ‘do not affect validity of contracts relating to financial products’.
IG Australia executive director Peter Richards said the firm had received ‘extremely highly qualified’ advice that the Commonwealth laws overrode state requirements. Under state rules, gambling and wagering works on an exceptions basis: all activities are deemed illegal unless specific permission is given.
Spread betting – in which open-ended bets are made on share-price movements or the number of runs scored in a cricket match – is permitted only in the ACT.
IG is promoting its betting as a device or financial tool for sophisticated traders, akin to warrants or futures products.
However, the firm also stresses the gambling nature of its products and has promoted the tax-free status of capital gains resulting from betting.
IG has also attracted the interest of investment banks which offer warrant products.
At least one bank is believed to have cried foul over the tax benefits enjoyed by IG customers relative to warrant products.
ASIC director Pauline Vamos said there was no doubt that IG met the licensing requirements to offer a financial product. ‘They need a licence and they meet all our requirements (to be granted one).’
But she said that, while ASIC would monitor IG’s compliance with disclosure requirements, it was not up to ASIC to judge the merits or otherwise of IG’s product.
IG’s entry has not gone unnoticed in Canberra, raising the ire of Liberal Senator Grant Chapman, chairman of the joint parliamentary committee on corporations and financial services.
Senator Chapman has referred the matter to the Treasurer’s Office.
NSW originally pleaded justification on the basis that IG's conduct was illegal under New South Wales gaming laws.[3] Although the plaintiffs were not licensed under New South Wales gaming legislation, they held a financial services licence under s 913B of the Corporations Act 2001 (Cth). In 2005, IG Index sought determination of the preliminary issue whether the New South Wales gaming legislation was, so far as it applied to the activities of IG Index, inconsistent with the Corporations Act and to that extent invalid under s 109 of the Commonwealth Constitution. The judge held that the plaintiffs did not require a licence under the New South Wales gaming legislation to carry out their business of spread betting because they held a licence under the Corporations Act, the provisions of which made inconsistent New South Wales legislation inoperative.[4]
[3]Unlawful Gambling Act 1998 (NSW), ss 8, 9 and 11; and Racing Administration Act 1998 (NSW), s 30.
[4]IG Index v New South Wales [2006] VSC 108.
Following that decision, the defendant abandoned its justification defences but continued to rely on defences of comment and fair comment, which are collectively described as ‘the comment defences’ below.
In Victoria, South Australia and the Australian Capital Territory, the appellant’s defence was based on common law principles. In relation to publications in the Victorian and South Australian editions of The Australian, para 10(b) of the appellant’s defence pleaded that ‘the said matter complained of was fair comment on a matter of public interest.’ The appellant separately pleaded a similar defence in relation to the ACT publication.
The defences pleaded in relation to the publications in other States reflected the comment defences applicable in those jurisdictions. So far as the NSW publication was concerned, NSW pleaded that:
11.
…
(b) so much of the matter complained of as comprised words attributed to ‘a spokesman for NSW Gaming Minister Richard Face’ that those parts:-
(i) related to matters of public interest;
(ii) amounted to comment;
(iii) that comment was the comment of the defendant or alternatively of a servant or agent thereof;
(iv) was based on proper material for comment and upon no other material or, in the alternative, was based to some extent on proper material for comment and represented an opinion which might reasonably be based on that material to the extent to which it was proper material for comment.
In relation to the publication in Queensland and Tasmania, it pleaded that:
12.
…
(d) the publication was made in good faith in the course of, or for the purposes of, the discussion of some thing the subject of public interest, the public discussion of which was for the public benefit and in so far as the defamatory matter consisted of comment, the comment was fair;
(e) the publication was fair comment respecting the public conduct of any corporate entity, that is the Plaintiffs, which takes part in public affairs, or respecting the character of any such entity, so far as the entity’s character appears in that conduct.
For the publication in Western Australia the defendant pleaded that:-
13.
…
(b) the said matter complained of was fair comment on a matter of public interest;
(c) the publication was fair comment respecting the public conduct of any corporate entity, that is the plaintiffs and IG Index, which takes part in public affairs, or respecting the character of any such person, so far as the person’s character appears in that conduct.
A similar defence was pleaded in relation to the Northern Territory publication.
The defendant provided particulars of its comment defences as follows:
D.
1. The paragraph ‘a spokesman for New South Wales Gaming Minister Richard Face said IG had illegally advertised its service in the State’ and the words ‘we have no doubt it is illegal and we have told ASIC’ the spokesman said comprised expressions of opinion and were therefore comment.
2. The words ‘this was because the firm was not a licensed bookmaker and had not received approval to offer its form of gambling’ comprised statements of fact and were proper material for comment because those facts were accurately stated.
The proceedings below
The plaintiffs applied to have the defences struck out on the basis that they were bad in law.[5]
[5]Presumably the application was made under Supreme Court (General Civil Procedure) Rules2005, r 23.02.
At common law the defence of fair comment applies only to words which are comments rather than statements of fact, which relate to a matter of public interest and which are based on material which is factually true.[6] The plaintiffs contended that the defences to which I have already referred should be struck out because, even if the words attributed to the New South Wales Government spokesman could be regarded as comments made in the public interest, they were based on statements of fact which were false.
[6]Patrick Milmo QC and W V H Rogers (eds) Gatley on Libel and Slander (10th ed, 2004) [12.1], [12.14], and see Hunt v Star Newspaper Company Limited [1908] 2 KB 309, 320 (Fletcher Moulton LJ); Digby v Financial News Ltd [1907] 1 KB 502, 508 (Collins MR).
The learned judge below held that the statements that the plaintiffs acted illegally in advertising their services were capable of being regarded as comments. He said:[7]
Even though the question of illegality with respect to the plaintiffs’ advertising and their gambling activities could probably be determined as objective facts, in the context in which they were asserted by the defendant’s agent they could be expressions of opinion as claimed. See Telnikoff v Matusevi[t]ch. [8]
[7]IGIndex v State of New South Wales (No.2) [2006] VSC 275, [14].
[8]Cited therein as [1992] 2 AC 343, 351 (Lord Keith of Kinkel), 357-8 (Lord Ackner).
However, his Honour rejected NSW’s submission that the statements that the plaintiffs ‘were not licensed bookmakers’ and ‘had not received approval to offer their form of gambling’ were accurate statements of fact. He held that these words necessarily implied that both a bookmaker's licence and approval from the state were prerequisites to the carrying on and advertising of the business of spread betting in NSW. This was not actually the case, because the holder of a licence under the Corporations Act did not have to satisfy these requirements. It followed that the defence of fair comment was not available in Victoria and South Australia, where the common law of defamation continues to apply. In relation to the New South Wales publication, his Honour held that if the statement of facts relied upon by New South Wales were untrue it could not constitute proper material for comment under ss 30 and 31 of the Defamation Act 1974 (NSW).[9] Thus:
The falsity of the facts upon which the comments sought to be defended are based renders the defence inapplicable so far as publication in New South Wales is concerned.[10]
[9]This Act has since been repealed and replaced by the Defamation Act 2006 (NSW).
[10]IGIndex v State of New South Wales (No.2) [2006] VSC 275, [25].
His Honour reached a similar conclusion in relation to the publications in the other states and ordered that the applicant’s comment defences should be struck out.
The submissions
Counsel for the applicant submitted that his Honour's decision to strike out the defences was inconsistent with the principles enunciated by the High Court in General Steel Industries Inc v Commissioner for Railways.[11]
[11](1964) 112 CLR 125 (‘General Steel’).
The statements made by the Minister's spokesman and republished in The Australian were that ‘IG was not a licensed bookmaker’ and ‘IG Index had not received approval to offer its form of gambling’. The defence was that these statements provided the factual basis for the comments that IG was acting illegally in carrying on its spread betting business. It was submitted by counsel for the applicant that these statements were literally true and that his Honour had accepted that this was so in his reasons. It followed that this ‘should have been an end to the strike-out application’.
It was said by counsel for the applicant that the orders striking out the defences were based on his Honour's finding that it was a necessary implication of these words that a bookmaker's licence and/or approval was required to carry out spread betting in New South Wales. Counsel submitted that his Honour could only have reached this conclusion if the implication was an inevitable inference from the words used. Except where this was the case, the question whether statements of fact carried a particular implication was a matter which could only properly be determined by the tribunal of fact.
Further, counsel for the applicant submitted that the requirement that the comment be based on a true statement of facts depends on the meaning of the words as understood by an ordinary reasonable reader.[12] This requires the meaning of the words to be considered in the context in which they appear. His Honour should not have made findings about the implications to be drawn from the statements made by the spokesman for the minister, when this depended on the evidence of context which would be before the tribunal of fact.
[12]Sutherland v Stopes [1925] AC 47, 67 (Viscount Finlay).
In the case of the republication in The Australian, it was said that his Honour had focused only on the meaning of the relevant words and had not considered the whole of the article. The effect of the context in which the statements were made by the minister's spokesman and republished by The Australian could only be determined by the tribunal of fact at trial.
Counsel for the respondents submitted that the judge below had correctly applied the test in General Steel in deciding that New South Wales' defences should be struck out. His Honour had not made a finding as to the meaning of the published words, which usurped the function of the tribunal of fact. He had simply confined himself to considering the pleaded statements that ‘the firm was not a licensed bookmaker’ and ‘had not received approval to offer its form of gambling’.
The particulars of the applicant's defence had made no reference to relevant contextual matters. Counsel submitted that it was therefore not open to the applicant to rely on contextual matters to give meaning to the statements that ‘the firm was not a licensed bookmaker’ and ‘had not received approval to offer its form of gambling’.
It was said that the only possible meaning that the judge below could have given to these words resulted in a finding that they were false. A statement may be false because facts are omitted which ‘falsify or alter the complexion of the facts which are stated.’[13] While the statement that IG Index was not a licensed bookmaker was literally true, the second pleaded fact was rendered false by omission of any reference to the fact that the respondents held a financial services licence from ASIC which authorised them to carry on spread betting. The decision in earlier proceedings that federal law overrode NSW gambling laws required his Honour to conclude that the statement that IG Index had not been given approval to carry on its business was untrue.
[13]Milmo QC and W V H Rogers (eds), Gatley on Libel and Slander (10th ed, 2004) [12.17].
Further, even if his Honour's reasoning was based on the implication that the respondents required both a bookmaker's licence and approval from New South Wales in order to carry on its business, it was proper for him to make this implication because the question whether words carried particular imputations was a question for the trial judge rather than the tribunal of fact.
Finally, counsel for the respondents contended that the comment defences were hopeless because his Honour had decided that the New South Wales gaming legislation did not apply to spread betting.[14]
[14]See IG Index v New South Wales [2006] VSC 108.
As I have said, the judge below held that the statement that IG Index's activities were illegal was capable of being a comment rather than a statement of fact. Because the respondents did not file a notice of contention relating to that finding, it is unnecessary to consider counsel’s submissions on that matter. I note, moreover, that the comment defences related to statements made by the minister's spokesman before his Honour determined that the gaming legislation could not apply to IG Index's spread betting business because it was inconsistent with the Corporations Act.
Conclusion
Both the applicant and the respondents accepted that his Honour's jurisdiction to strike out the applicant's defences should be exercised sparingly in accordance with the principles in General Steel. In that case, the High Court held that the jurisdiction to set aside a statement of claim should be exercised with great care ‘to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for a trial of his case by the appointed tribunal.’[15] The same principle applies where a plaintiff seeks to strike out a defence.
[15](1964) 112 CLR 125, 130 (Barwick CJ).
In order to sustain the comment defences, it was necessary for NSW to plead the matters relied upon as a true basis for the comment.[16] The facts which were pleaded as the factual basis for the comments were that the firm was not a licensed bookmaker and had not received approval to offer its form of gambling.
[16]Milmo QC and W V H Rogers (eds), Gatley on Libel and Slander (10th ed, 2004) [33.19]; Cunningham-Howie v FW Dimbleby & Sons Ld [1951] 1 KB 360.
In my opinion, his Honour erred in ordering that the comment defences should be struck out. I take that view for the following reasons.
First, in my view the relevant words did not necessarily imply that both a bookmaker's licence and approval from the state were prerequisites to the carrying on of business of spread betting in New South Wales. I do not accept the submission made by counsel for the respondent that his Honour could not consider the context in which the statements were published orally or in writing because this was not pleaded by the applicant. It is trite law that the meaning of allegedly defamatory statements depends on their surrounding context. As the learned authors of Gatley on Libel and Slander comment:
For the purpose of showing that the words are not defamatory or would not bear the meaning put upon them by the claimant, the defendant is entitled to have put before the jury the whole article of which the alleged libel forms part, or to give in evidence the whole speech, dialogue or conversation in the course of which the alleged slander was uttered.[17]
[17]Milmo QC and W V H Rogers (eds), Gatley on Libel and Slander (10th ed, 2004) [33.4].
Counsel for the respondents was unable to cite any authority for the proposition that contextual matters which are not explicitly pleaded cannot be taken into account in determining whether statements relied upon as the basis for a comment are factually true.
Further, there can be no suggestion that the respondents were taken by surprise by the applicant's failure to give particulars of the context in which the statements were made. The fact that the statements were primarily concerned with New South Wales law is apparent from the allegedly defamatory statement referred to in the plaintiffs' statement of claim that ‘IG Index had flouted New South Wales gaming laws’.
Paragraph 4(c) of the statement of claim was that:
The words were published as part of an article in The Australian newspaper on 12 August 2004, the full text of which is annexed hereto.
Contextual matters were also referred to in paragraph 5 of the applicant's further amended defence, which pleaded that:
The further words were published in the course of an extended article concerning gambling and the lawfulness or otherwise and the desirability of spread betting pursuant to New South Wales, Victoria, Queensland, Australian Capital Territory and Commonwealth laws.
As the applicant's counsel pointed out, in deciding whether the statements republished in The Australian were true, the tribunal of fact would have to take account of the whole of the article, including the comments that the firm was licensed to carry on business by ASIC, that IG faced a regulatory stoush which could go all the way to the High Court, that the heart of the issue was whether the business of spread betting was governed by state or federal laws, and that IG Australia's executive director, Peter Richards, had said that the firm had received ‘extremely highly qualified advice that the Commonwealth legislation overrode state requirements’. In the light of this context, it was clearly arguable, as the applicant contended, that the article did not unequivocally assert that a bookmaker's licence and approval was required in order to carry on spread betting in New South Wales, but simply explained that this depended on whether federal law prevailed over the New South Wales gaming legislation.
Secondly, the first part of the statement could be read simply as a statement that, as a matter of fact, IG Index did not hold a bookmaker's licence. The second part of the statement could be interpreted simply as an elaboration of the statement that IG did not hold a bookmaker's licence. Alternatively, a tribunal of fact considering a statement made by a spokesman for the New South Wales Government might well have considered that the statement meant that the firm had not received approval from NSW to offer its form of gambling. Read in this way, the statement could provide a true factual basis for a comment as to whether it was illegal for IG Index to carry on its business. Given the possible meanings that could be attributed to these statements, I accept the applicant's submission that his Honour should not have determined how these words should be interpreted, but should have left this question for determination by the tribunal of fact.
Thirdly, it follows that his Honour should not have decided that the statements relied upon by NSW were false. It was clearly open for a jury to find that the statement that IG Index did not have a bookmaker's licence was factually true. A jury which found that the statement that IG Index did not have approval referred to approval from NSW could also have found that statement as factually true.
Fourthly, the implication made by his Honour was, in effect, that IG Index's activities were illegal because IG Index lacked a bookmaker's licence and approval. Although his Honour held that a jury should determine whether the statement that IG Index had acted illegally was a comment or a statement of fact, his conclusion that this question was open was undermined by his finding that the necessary implication of the statements relied upon was that a bookmaker's licence and approval was required before IG Index could operate legally in New South Wales. In substance, therefore, the judge below not only made a finding of fact about the meaning of the statements, but also implicitly decided that the statement that IG Index had acted illegally was a statement of fact rather than a comment. Both of those matters should have been left to the jury to determine.
I would therefore grant the application for leave to appeal and allow the appeal against the orders striking out the comment defences.
BUCHANAN JA:
I agree that the appeal should be allowed, for the reasons stated by Neave JA.
I would add that in my view the respondents’ submissions at several points blurred the distinction between the facts upon which a comment is based and the comment itself. It was said that the fact omitted from the facts advanced by the appellant, namely, that the first and second named respondents held licences under the Corporations Act 2001, rendered untrue the facts that the respondents relied upon. In my view, the omitted fact did not produce that result. The omitted fact served as the foundation for the conclusion that the opinion expressed by the minister’s spokesman was wrong. That conclusion, reached by a judge in the Trial Division after the comment was made, neither deprived the statement of the minister’s spokesman of the status of a comment nor rendered false the facts upon which the comment was based.
NETTLE JA:
I gratefully adopt my sister Neave’s statement of the facts and contentions. As I see it, the principal issue in this application is whether the judge was correct in holding that the impugned statements, which his Honour accepted were capable of being construed as comment, necessarily implied a statement of fact that IG Index was required to register or obtain approval under New South Wales gaming laws, and, therefore, that the defence of fair comment was bound to fail as based upon a fact which was false.
Essentially, the common law defence of fair comment is simple but, as the need for this appeal demonstrates, things are sometimes said about it which are capable of causing confusion. I shall endeavour to avoid confusion for present purposes by sticking to the basics.
The first point is that a statement may qualify as a comment if it appears to be a deduction, inference, conclusion, criticism, judgment, remark or observation come to by the writer or speaker from facts stated or referred to by him, or in the common knowledge of the person writing or speaking and those to whom the words are addressed, and from which his conclusion may reasonably be inferred.[18]
[18]O’Brien v Marquis of Salisbury [1889] 6 TLR 133; Clarke v Norton [1910] VLR 494, 506; aff’d on appeal Norton v Clarke (1911) 12 CLR 13; Goldsborough v John Fairfax & Sons Ltd (1934) 34 SR(NSW) 524, 531.
Secondly, it is necessary to bear in mind that in order to be justifiable as a fair comment, the comment must appear as comment and not be so mixed up with the facts that the reader or listener cannot distinguish between what is report and what is comment. As I have said, the notion of comment includes a statement which may reasonably be inferred to be a comment, but if a defendant merely makes a general reference to a person’s conduct, or mixes up what he believes to be fact and comment, he runs the risk of a jury saying in general to any defamatory statement either that it would reasonably infer it to be a statement of fact and that its truth is not proved, or that it would reasonably infer it to be a comment and cannot form the substratum or basis for further comments.[19]
[19]Clarke v Norton [1910] VLR 494, 507.
Thirdly, and for present purposes most importantly, it is for the jury or other tribunal of fact at trial, and not for a judge as upon interlocutory application, to decide whether what has been published is a statement of fact or an expression of opinion.[20] It is only if the comment is reasonably capable of being regarded only as a fact, or only as a comment, that a trial judge may take the question away from the jury, or perhaps strike out a relevant pleading.[21]
[20]Pervan v The North Queensland Newspaper Company Limited (1992) 178 CLR 309, 317.
[21]London Artists Ltd v Littler [1969] 2 QB 375, 392.
Fourthly, the question of whether a statement is one of fact or comment is to be decided having regard to the actual language used and the context in which it appears or is made.[22] As Lord Ackner observed in Telnikoff,[23] it is not always easy to draw the distinction between an expression of opinion and an assertion of fact. The very same words may be one or other according to their context.[24] So, for example, a statement that someone has acted dishonestly or corruptly or been guilty of corruption and mismanagement or had his hands in the till may be statements of fact in one context and statements of opinion in another.[25]
[22]Telnikoff v Matusevitch [1992] AC 343, 358; Pervan, 318.
[23]Ibid.
[24]Ibid 358, in diss, but not on this point.
[25]Clarke v Norton [1910] VLR 494, 507; Smiths Newspapers Ltd v Becker (1932) 47 CLR 279, 301-4; Bjelke Petersen v Burns and Australian Broadcasting Commission [1988] 2 Qd R 129, 134; cf Dakhyl v Labouchere [1908] 2 KB 325.
Fifthly, a statement of opinion is not fair unless it is based on facts which are shown to be true.[26]
[26]Kemsley v Foot [1952] 2 KB 34, 47-8; Kemsley v Foot [1952] AC 345, 358, 361; Bjelke Petersen v Burns and Australian Broadcasting Commission [1988] 2 Qd R 129.
Finally, for present purposes, it is not necessary, in order to establish the defence, that the opinion be correct[27] or even reasonable.[28] A commentator on matters of public interest is entitled to a defence of fair comment, unless the comment is one that no fair-minded man could honestly hold.[29] The real question is whether it is the honest expression of the commentator’s point of view and not mere abuse or invective under the guise of comment.
[27]Turner v MGM Pictures [1950] 1 All ER 449, 456, 461; London Artists Ltd v Littler [1969] 2 QB 375, 393.
[28]Gardiner v John Fairfax & Sons (1942) 42 SR(NSW) 171, 174.
[29]London Artists Ltd v Littler [1969] 2 QB 375, 393.
Bearing those considerations in mind, it seems to me that the starting point for the judge in this case should have been to look at the context in which the comment was uttered or published. As has been noticed, however, his Honour looked only at the words and the facts as particularised on which the comment was said to be based. With respect, I consider that his Honour erred in adopting that course.
In the case of the spoken words, IG Index alleges in its statement of claim that the words were published as part of an article in The Australian newspaper, of which the full text is then set out. Evidently, IG Index intends to rely on the full text in its attempt to establish that the impugned words were defamatory. Obviously, it will be entitled to do so, because meaning is informed by context. But so too will New South Wales be entitled to rely on the full text for the purposes of establishing fair comment. There is no sense in having regard to context in order to determine whether words are defamatory, and yet ignoring the context in order to determine the issue of fair comment. The two questions are opposite sides of the same coin and so therefore must be considered together in the context of the whole of the text.
In the case of the written words, the position is even plainer. IG Index alleges in its statement of claim that the words appeared in the article in The Australian newspaper and it relies on the article as informing the meaning of the words. So too may New South Wales.
Nor, in my view, did New South Wales need to plead reliance on the context of the full text, for it was put forward by IG Index as part of the defamatory context. I allow that the position may have been different if New South Wales had sought to rely upon some aspect of context beyond the full text. Depending upon the nature of such additional context, it may be that it would need to have been pleaded. But that is not this case.
The next question for the judge was whether, having regard to the language and context in which the comment was expressed, the comment was reasonably capable of being regarded only as, or as implying, a statement of fact as opposed to opinion based on the facts of which particulars were given. If it were not, the question should have been left to the jury or other tribunal of fact.
In effect, the judge reasoned that to say of an organisation that it is not registered, and therefore that it is acting illegally, is necessarily to imply that it is required by law to be registered. But, with respect, that was a question for trial, and it depended on context. For just as a statement that someone has acted dishonestly or corruptly or been guilty of corruption and mismanagement, or has had his hands in the till, may be a statement of fact in one context and a statement of opinion in another,[30] so too may a statement that an organisation has flouted New South Wales gaming laws, or has acted contrary to New South Wales gaming laws, be capable of being a statement of fact in one context and a statement of opinion in another. To say that an organisation is not registered, and therefore that the organisation is acting unlawfully, may imply no more than that one is of opinion that the organisation is required to be registered. In such circumstances the fact is registration or the lack of it, and the opinion is that the lack of registration is contrary to law in the circumstances which obtain. Whether it is fact or opinion will depend on the words used and the context in which they are said or published. And, therefore, unless there is only one view reasonably open, it is a question to be left to the jury.
[30]Clarke v Norton [1910] VLR 494, 507; Bjelke Petersen v Burns and Australian Broadcasting Commission [1988] 2 Qd R 129, 134.
I turn then to whether the only view reasonably open was that the spoken or written words implied a statement of fact that IG Index was required to be registered, or whether, taken in context, they permitted of the possibility that the implication was one of opinion that the law required IG Index to be registered. In my view, it was the latter. Bearing in mind the reference to ASIC in the spoken words and the reference in the full text of the article in The Australian newspaper to the words ‘We have no doubt it is illegal and we have told ASIC’, it seems to me that it was plainly arguable that the statements represented no more than an expression of opinion, albeit emphatically expressed, that IG Index was bound by law to register: the words ‘We have no doubt’ being tantamount to ‘It is our very strong opinion’.
That leaves the question of whether the opinion was one that no fair-minded man could honestly hold. It would be surprising if that were so, and I doubt that it need concern us. Subject to IG’s alternative contention about fair comment not being available because a material fact was omitted, it has not been suggested that the opinion was one that no fair-minded man could honestly hold.
As to the alternative contention about the omission of a material fact, there has been no notice of contention, and in my view that is enough to rule against it. But, even if it were open to be considered, I would reject it. Logically, the plea of omitted fact would fall to be raised by IG Index in reply. If it did so it would bear the burden of proving the fact and that it was material. The question of whether it was material would need to be considered in context by the jury or other tribunal of fact, and accordingly it would be a matter which would need to go to trial.
Finally, there is the argument advanced in running that the fair comment defence was bound to fail because it has now been determined that IG Index did not need to register in New South Wales. I am not certain that it adds anything to the other ways in which IG Index sought to resist the appeal. But, in any event, in my view, it is without merit. As has been seen, a comment need not be correct in order to be fair. It is only the facts on which it is based which must be accurate. Otherwise, it is a question of whether it was honestly held at the time it was expressed and fairly based on the facts of which particulars have been given.
It follows from what I have said that I consider that the judge was wrong to strike out the defence of fair comment. In my view, the statement which is pleaded as comment is capable of being seen as a statement of opinion that IG Index was required to be registered under New South Wales gaming laws, and thus as fair comment on a matter of public interest.
Accordingly, I too would grant leave to appeal, treat the appeal as instituted and heard instanter and allow the appeal.
BUCHANAN JA:
Subject to any submissions that the parties may make, in each case the following orders will be made:
1. The application for leave to appeal is granted.
2.The appeal is treated as instituted instanter and is allowed.
3.The order set out in paragraph 1 of the orders made by Bongiorno J on 31 July 2006 is set aside and in lieu thereof it is ordered that the defendant’s application be dismissed with costs.
4.The respondents are to pay the appellant’s costs of the appeal.
In ‘Other Matters’ it will be noted that a certificate will be granted to the respondents pursuant to the provisions of the Appeal Costs Act.
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