Peek v Channel Seven Adelaide Pty Ltd No. Scciv-02-1127

PEEK v CHANNEL SEVEN ADELAIDE PTY LTD
[2003] SASC 346

JUDGE BURLEY. This is a defamation action brought by the plaintiff against the defendant in respect of a television broadcast on 10 June 2002. A transcript of the broadcast is annexed to the statement of claim. The broadcast formed part of a current affairs programme called “Today Tonight” and the segment of that programme said by the plaintiff to be defamatory of him concerned the disposal of property by a Peter Liddy, who had been represented by the plaintiff as senior counsel in criminal proceedings brought against Mr Liddy in the Supreme Court. The defendant has filed an amended defence in these proceedings. The amendment was made without the leave of the Court as permitted by the Rules, but such amendments are subject to disallowance if the plaintiff can establish that the amended pleading is bad for one reason or another.
By an application dated 3 June 2003 the plaintiff has applied for various orders in respect of the amended defence. It became clear during the hearing of the application that the plaintiff sought a disallowance of the amended pleading or striking out of the amendments with the effect that the original defence which was filed on 16 September 2002, would stand as the defence of the defendant. During the course of argument, I indicated that I thought that the arguments advanced by the parties were such that the decision to be made was whether or not the whole of the amended defence should be disallowed so that the original defence stood as the defence of the defendant. Having considered the arguments of counsel since then, I think the proper approach to be taken is to decide whether either or both of paragraphs 8 or 9 should be permitted to stand.
There was no dispute between the parties as to the basis upon which the Court acts on an application such as this. It must be shown that the defences referred to in the amended defence must be devoid of merit: Chapman and Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 185. The power to strike out must be exercised sparingly and only in clear cases: Egan v The Commonwealth Minister for Transport (1976) 14 SASR 445; General Steel Industries Inc v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125. The decision is to be made by reference to the pleading. The Court may not embark upon a trial of the merits of the particular defence: Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937.
In both defences the defendant denies that the segment of the programme referred to is capable of being defamatory of the plaintiff. In the original defence of the defendant, it relied on the defence of qualified privilege and the defence of qualified privilege in that the broadcast constituted political discussion: cf Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. In these reasons, I shall refer to that defence as the defence of qualified privilege.
In the amended defence the defendant has introduced for the first time, by paragraph 8, the defence of fair comment. Particulars of the facts upon which the comment is based are set out in the following 36 pages of the pleading. In paragraph 9 of the amended defence, the defendant relies upon qualified privilege on the basis that the broadcast constituted a discussion of government and political matters. The particulars set out in paragraph 8 are relied upon, in addition to other matters set out in paragraph 9, to support the defence of qualified privilege.
Mr Whitington QC, counsel for the plaintiff, contended that the amendments should be disallowed because the factual basis to the defences of qualified privilege and fair comment has nothing to do with the plaintiff. Mr Whitington submitted that the broadcast by the defendant was intended to apply to legal representatives of Mr Liddy other than the plaintiff and that the broadcast defamed the plaintiff by accident.
It appears to be common ground that there are other proceedings by other legal practitioners against the defendant which have been brought as a result of the broadcast the subject of these proceedings. The defendant in those proceedings has relied upon the defences of fair comment and qualified privilege, in support of which the defendant has pleaded the same facts as those upon which the defendant relies in the amended defence. It was submitted by Mr Whitington that those facts do not relate to the conduct of the plaintiff and as such cannot be relied upon to support the defences of qualified privilege and fair comment as pleaded in the amended defence. I was referred to the decision of the Full Court in Rogers v Allen and Others (1989) 154 LSJS 95. In that case, the plaintiff was one of two persons with the surname Rogers who was defamed by the publication of some election material during the course of a local government election. The defamatory material was not intended to refer to the plaintiff. The trial Judge held that the defamatory material nevertheless applied to the plaintiff. This decision was not challenged on appeal. The trial Judge went on to consider the question of whether or not the defence of qualified privilege raised by the defendants had been made out. He held that the defence had been made out and this conclusion was the subject of the appeal to the Full Court.
The factual basis relied upon by the defendant in that case to support the defence of qualified privilege was related to the other person called Rogers, who was the intended target of the defamatory material. The Full Court held that the defendant could not rely upon the defence of qualified privilege when such a defence was based on facts which only went to the question of whether or not qualified privilege could be relied upon in relation to the defamation of the intended target of the publication.
I bear in mind that Rogers v Allen and Others was an appeal from a decision of a Judge who presided at the trial of the defamation action. This is to be contrasted with the application before me, which is one based on pleadings. It is not my function on an application such as this finally to decide the areas of dispute between the parties. If there is an arguable basis to the defendant’s defence it should not be disallowed. It follows that, if the plaintiff is to succeed in respect of the first argument, he must demonstrate that, on any view of the facts or law, the defences which the defendant wishes to pursue as pleaded by way of amendment in the defence cannot succeed.
As I understand the plaintiff’s argument, it is that the facts relied upon by the defendant in its amended defence do not relate to the plaintiff, and, therefore, as a matter of law, the defences of fair comment and qualified privilege are untenable.
Mr S Doyle, counsel for the defendant, argued that the defences of fair comment and qualified privilege raised respectively in paragraphs 8 and 9 of the amended defence, properly understood, were adequately pleaded. He submitted that because different considerations applied to each of the two defences, the adequacy of each of the two defences had to be separately considered. I agree with that submission.
In dealing separately with each of the two defences, I bear in mind that Rogers v Allen was a case involving qualified privilege and, to that extent, it may only apply to the question of whether or not the pleading in paragraph 9 of the amended defence, qualified privilege, should be permitted to stand.
As to the defence of fair comment, Mr Doyle contended that such a defence is aimed at the words complained of rather than the imputation said by the plaintiff to arise from the words complained of. At paragraph 23.1 of his written submission he stated:
“The issue is whether the imputations for which the plaintiff contends (or ones substantially similar) were conveyed as comment.”
I agree with that submission. I also agree with his submission that the defendant is not bound by the imputations contended for by the plaintiff. Consequently, the imputations contended for by the defendant as set out in paragraphs 8.1 to 8.3 of the amended defence have to be considered. It is in respect of these imputations that the defendant contends that the broadcast constituted fair comment on the matter of public interest. Particulars of the public interest are set out at paragraph 8.5 and these have not been the subject of attack. The amended defence then sets out in paragraphs 8.6 to 8.89 particulars of facts upon which the comment is based. These are the 36 pages of particulars which the plaintiff says should be disallowed because they do not relate to the plaintiff.
The only basis upon which Mr Doyle sought to link those particulars to the plaintiff was that the plaintiff was one of the lawyers of Mr Liddy who received legal fees in preference to the victims. However, apart from reference to legal fees being paid from a superannuation payout (part of which, it is common ground, was paid to the plaintiff in respect of his fees for having acted for Mr Liddy in respect of the criminal proceedings), there is no reference to the plaintiff. The particulars relied upon are otherwise given over to a detailed series of assertions relating to civil proceedings brought by the victims of Mr Liddy’s crimes in order to preserve Mr Liddy’s assets so that any judgment obtained for damages by any of the victims might be satisfied. It is not suggested that the plaintiff had anything to do with the civil proceedings.
From this analysis of the pleadings, the question to be decided on this application is whether or not the particulars contained in paragraphs 8.6 to 8.89 of the amended defence may be properly relied upon as particulars in respect of which the comment is based. In my view the decision of the Full Court of this court in Rogers v Allen is not directly applicable because that decision dealt with the defence of qualified privilege. At best, the plaintiff’s contention, where reliance is placed upon Rogers v Allen, is that the same approach as taken in relation to the defence of qualified privilege should be taken in relation to a pleading of particulars upon which fair comment is said to be based.
In my view, the approach to be taken on this application is essentially the same as the approach taken by the Full Court in Rogers v Allen. I must examine the pleading to see whether or not it is arguable that the imputations set out at paragraphs 8.1 to 8.4 of the amended pleading and the particulars given at paragraphs 8.6 to 8.89 may properly be said to relate to the plaintiff.
The only connection raised in those paragraphs between the imputations and particulars on the one hand and the plaintiff on the other hand, is the reference to a superannuation fund out of which some of the plaintiff’s fees were paid. In my view, that constitutes too tenuous a connection to the extent that the proposed defence may be said to be devoid of merit. For these reasons I propose to disallow paragraph 8 of the amended defence.
I now turn to a consideration of paragraph 9 of the amended defence which raises the defence of qualified privilege. The relevant parts of paragraph 9 are as follows:
“Further or in the alternative, the broadcast was published on an occasion of qualified privilege in that the broadcast constituted the discussion of government and political matters and the Defendant’s conduct in publishing the broadcast was reasonable in the circumstances.
Particulars of the Discussion of Government and Political Matters
9.1the Defendant repeats paragraphs 8.6-8.89 inclusive above;
...
Particulars of Reasonableness
9.14The Defendant had reason for believing the facts contained in the broadcast and pleaded in paragraphs 8.6-8.89 inclusive of this Defence to be true.”
I shall refer to the particulars in paragraphs 8.6-8.89 as “the particulars”. It is apparent that the defendant relies upon the particulars, in addition to the matters pleaded in paragraphs 9.2 to 9.13, to establish that the broadcast constituted the discussion of government and political matters, and, secondly, in addition to paragraphs 9.15 to 9.18 to establish that the broadcast was reasonable in the circumstances.
In Rogers v Allen, the Full Court did not have under consideration the Lange form of the defence of qualified privilege. As I understand Mr Doyle’s argument, the Lange defence was different from the ordinary defence of qualified privilege such that it was permissible for the defendant to rely upon the facts as pleaded in paragraphs 8.6 to 8.89 to support the contention that the broadcast consisted of the discussion of government and political matters and to support the contention that the broadcast was reasonable. Although Mr Doyle did not specifically submit that the decision in Rogers v Allen should be distinguished, I understand that to be the essence of his submission. Such a submission requires me to consider whether or not there must be a material link between the particulars relied upon and the conduct of the plaintiff. This is in the context where the application before me was argued on the assumption that if the broadcast or any part of it defamed the plaintiff, such defamation occurred accidentally.
In my view, it is at least arguable that the decision in Rogers v Allen does not apply where the Lange defence is relied upon. Because the particulars are said to support the contention that the broadcast consisted of discussions of governmental and political matters and that it was reasonable, it would be inappropriate to disallow paragraph 9 of the amended defence. For these reasons the application by the plaintiff to disallow paragraph 9 should be refused.

[2003] SASC 346

2 October 2003