Rahim, Charles v Seven Network Limited and Ors (Ruling)
[2009] VCC 1770
•6 November 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES-COMPENSATION
DEFAMATION DIVISION
Case No. CI-08-02374
| CHARLES RAHIM | Plaintiff |
| v | |
| SEVEN NETWORK LIMITED | First-named Defendant |
| ROHAN TRAVIS WENN | Second-named Defendant |
| SEVEN NETWORK (OPERATIONS) LMIITED | Third-named Defendant |
| CHANNEL SEVEN MELBOURNE PTY LTD | Fourth-named Defendant |
| GAVIN WILSON | Fifth-named Defendant |
| AUSTRALIAN POLYGRAPH SERVICES PTY LTD | Sixth-named Defendant |
---
| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 October 2009 |
| DATE OF RULING: | 6 November 2009 |
| CASE MAY BE CITED AS: | Rahim, Charles v Seven Network Limited & Ors (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1770 |
RULING
---
Catchwords: DEFAMATION – pleading – fair comment – whether the defendants had pleaded the facts supporting the defence of fair comment.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Catlin | George Konidaris & Co |
| For the Defendants | Ms G Schoff | Corrs Chambers Westgarth |
| HIS HONOUR: |
Background
1 Before the Court is an application made by the plaintiff requiring the defendants to provide particulars of the facts upon which they rely to support their defence to paragraphs 13(a), (e), (f), (g) and 17 (c) i, v and vii of the Statement of Claim. Alternatively, the plaintiff seeks that the offending paragraphs be struck out.
2 Mr Catlin of counsel appeared for the plaintiff and Mr Schoff of counsel appeared for the defendants.
3 The plaintiff commenced a proceeding against six defendants by Writ filed 16 June 2008 alleging that the defendants had defamed him.
4 The defendants filed Amended Defences on 22 October 2009. Both Mr Catlin and Schoff informed me that the Amended Defence on behalf of the first, second, third and fourth defendants contained the pleadings which the plaintiff says require particulars, or alternatively, should be struck out.[1]
[1] The other defendants relied on the same pleading
The Plaintiff's Pleadings
5 The incident on which the plaintiff's proceeding is based was a segment on a television current affairs program known as “Today Tonight” which aired on 18 June 2007 on the first defendant's television network.
6 A transcript of the segment is attached to the plaintiff’s Statement of Claim. Without rehearsing the whole of what transpired during the segment, it is clear that the plaintiff is a polygraph examiner. The segment described conduct on the part of the plaintiff which questioned his qualifications and motives relevant to the way in which he conducted polygraph testing.
7 In paragraph 13 of the Statement of Claim, the plaintiff pleaded that the segment was defamatory. In sub paragraphs (a)-(i) he pleaded what he alleges are the natural and ordinary meanings of the defamatory statements in the segment, what they meant and were understood to mean.
8 Mr Catlin took me to each relevant subparagraph 13:
"(a) the Plaintiff lies about his polygraph qualifications and polygraph
test results;. . . (e) in the conduct of his business, trade and profession the Plaintiff intentionally and deliberately wrecks and has wrecked marriages; (f) in the conduct of his business, trade and profession, the Plaintiff intentionally and deliberately attempted to wreck the marriage of Jennifer and Wayne Appleby; (g) the Plaintiff was conducting polygraph tests without proper training and/or qualifications."
9 And to paragraph 17:[2]
[2] Words spoken by Gavin Wilson during the Segment
"(c)i the Plaintiff lies about his polygraph qualifications and polygraph
test results;. . . (c)v in the conduct of his business, trade and profession the plaintiff
intentionally and deliberately wrecks and has wrecked marriages;(c)vi in the conduct of his business, trade and profession, the plaintiff intentionally and deliberately attempted to wreck the marriage of Jennifer and Wayne Appleby; (c)vii the Plaintiff was conducting polygraph tests without proper training and/or qualifications;"
10 In their Defence the defendants pleaded fair comment in paragraph 24:
"Further or alternatively, the segment was fair comment upon a matter of
public interest.
Particulars
Particulars of the Substance of the Comment
(i) with respect to the meaning set out in paragraph 13(d), in so far as the Segment conveyed a meaning that the plaintiff elicited unnecessary sexual information from his clients in order to satisfy a perverted personal interest in such meaning it was conveyed as a matter of comment or opinion;
(ii) further, if the Segment conveyed the meanings set out in paragraphs 13(b), (c), (e), (f), (g) and (i) then such meanings were conveyed as a matter of comment or opinion.
Facts Upon Which the Comment Is Based
(iii) the defendants refer to and repeat the particulars under paragraph 22 - hereof;
(iv) further, the plaintiff has claimed on a number of occasions to have trained and achieved certification to conduct polygraph tests but has declined to provide particulars of such training or his qualifications.
Particulars of Public Interest
(v) the Plaintiff has promoted himself extensively on the Internet and in the media as qualified to conduct polygraph tests to determine whether a person has been faithful in a relationship."
11 In paragraph 22, the defendants pleaded:
"They say further that if the Segment conveyed imputations set out in paragraphs 13(b), (c) and (d) (which is expressly denied) then the Segment was true in substance and in fact and the defendants have a defence at common law and pursuant to section 25 of the Defamation Act 2005 (Vic) ("the Act").
Particulars of Justification
(i) the plaintiff has on a number of occasions performed polygraph tests upon women to determine whether they are telling the truth about their fidelity in a relationship. Those women include Jennifer Appleby, Elena Titta and Tanya Leigh…
(ii) At the time that he undertook polygraph tests upon Jennifer Appleby and Elena Titta, the plaintiff knew that each woman was married and had agreed to undertake the test in order to prove to her husband that she had told the truth about her fidelity in her marriage;
(iii) on each of the occasions set out in (i) above, the plaintiff asked the women a number of questions of a sexual nature which she claimed were necessary for the purpose of the polygraph tests, including questions about their sexual history, masturbation and sexual fantasies;
(iv) questions of the kind described in paragraph (iii) above are:
(A) unnecessary in the conduct of a valid polygraph test; (B) do not assist in the conduct of a valid polygraph test; and/or (C)
are calculated to create a strong physiological response in an examinee which may adversely affect the veracity of polygraph test;
(v) The polygraph test results provided by the plaintiff with respect to Jennifer Appleby and Elena Titta were inaccurate in that they recorded that each woman was lying, when in fact each woman had answered the questions asked of them during the test truthfully."
Counsels’ Submissions
12 Mr Catlin submitted that there were two broad meanings in question, they being, firstly, about the plaintiff wrecking marriages, and secondly, about the plaintiff having no or no appropriate qualifications.
13 Mr Catlin further submitted that the defence of fair comment is unsustainable because there is an absence of underlying facts pleaded upon which the defence of fair comment can be based.
14 Mr Catlin referred me to a number of authorities, none of which Ms Schoff suggested were other than a correct interpretation of the law relevant to the defence of fair comment.
15 In Channel 7 Adelaide Pty Ltd v Manock [3] Gleeson CJ said of the defence:
“However, to satisfy the requirements for the defence, it is not necessary that the facts upon which the comment is based be stated in the terms of the communication itself. The rationale is also satisfied if, to use the language of the majority in Pervan, the facts are ‘sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded’. It is more accurate, therefore, to describe as conventional a case where the facts upon which the comment is based are stated in the terms of the communication, or are sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to identify it as comment on those facts and to assess for themselves whether the facts support the comment. If the purported facts upon which the comment is based are not true, the defence does not lie. Hence, Bingham LJ's summation that ‘comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated’."[4]
[3] (2007) 232 CLR 245
[4] per Gleeson CJ at 253
16 Mr Catlin also submitted that each fact pleaded in support of a defence of comment must be made good, even if the fact is comparatively unimportant. He referred to Cleary v Hore-Lacy (No 2)[5] and Herald & Weekly Times Ltd v Popovic.[6]
[5] [2009] VSCA 132, at paragraph 58
[6] (2003) 9 VR 1, at 269-270
17 Mr Catlin submitted that the pleading of fair comment relied upon by the defendants did not plead the facts on which the defence is based.
18 Firstly, turning to the pleading of the defence to paragraphs 13(a) and 17(c)i of the Statement of Claim - paragraph 24, and in particular clauses (iii) and (iv) sub-joined to that paragraph:
19 Clause (iii) does not plead the facts on which the pleading of fair comment is based. It incorporates the pleading in paragraph 22. Paragraph 22 pleads that the content of the segment was true in substance and in fact. It then particularises the basis of that pleading. The whole of the pleading is directed to section 25 of the Defamation Act 2005 (Vic). The subject matter dealt with by section 25 is the defence of justification.
20 Paragraph 22 refers to polygraph tests performed on a number of women and the nature of questions asked on those occasions by the plaintiff which the pleading asserts were of a sexual nature which were unnecessary; did not assist in the conduct of a valid polygraph test; were calculated to create a strong physiological response to obtain an adverse effect on the veracity of the examinee, and that polygraph tests undertaken on Jennifer Appleby and Elena Titta were inaccurate.
21 Ms Schoff sought to relate that pleading back to the pleading of fair comment, and in particular, as part of the facts upon which the defence of fair comment is based.
22 Mr Catlin submitted that in relation to clause (iv), if the plaintiff had declined to give particulars of his training and qualifications, they are not facts upon which the defence of fair comment can be based relevant to the pleading that the plaintiff allegedly lied about his polygraph qualifications. I agree. It is a long bow to suggest that if such a refusal occurred that the refusal equates with the plaintiff lying about his training and qualifications.
23 If the defendants intend to persist with such a pleading, then the facts upon which they allege that the plaintiff lied about his polygraph qualifications must be based upon pleading what the plaintiff says his qualifications are, and that he does not possess those qualifications.
24 Next, turning to the pleading of the defence to paragraphs 13(e) and 17(c)v, paragraph 24, and in particular clauses (iii) and (iv) sub-joined to that paragraph:
25 Paragraph 22 does not plead facts relevant to any marriage which the plaintiff has wrecked. Again, it is a long bow to suggest that the plaintiff’s conduct of the polygraph tests as pleaded means that he wrecks and has wrecked marriages.
26 If the defendants intend to persist with such a pleading, then the facts upon which they allege that the plaintiff wrecks or has wrecked marriages must be to point to marriages which have suffered that consequence as a result of the plaintiff's conduct.
27 Next, turning to the pleading of the defence in paragraph 13(f) and 17(c)vii, paragraph 24, and in particular clauses (iii) and (iv) sub-joined to that paragraph:
28 Paragraph 22 does not plead facts relevant to the plaintiff intentionally or deliberately attempting to wreck the marriage of Jennifer and the Wayne Appleby. Again it is a long bow to suggest that he intentionally and deliberately attempted to wreck that marriage.
29 If the defendants intend to persist with such a pleading, then the facts relevant to the plaintiff’s conduct of the attempt to wreck that marriage must be pleaded, as must the facts going to his conduct being both intentional and deliberate.
30 Next, turning to the pleading of the defence to paragraph 13(g) and 17(c)vii, paragraph 24, and in particular clauses (iii) and (iv) sub-joined to that paragraph:
31 The meaning pleaded in both paragraphs is similar to paragraph 13(a), and therefore, the same reasoning which I applied to paragraphs 13(a) and 17(c)i applies equally here.
Conclusion
32 I accept the submissions made by Mr Catlin that the defence of fair comment is flawed for the reasons outlined above. I do not accept the submissions made by Ms Schoff that the broad nature of the pleading of the relevant offences are a sufficient basis to maintain the defence.
33 The authorities make it clear that a broad pleading of the kind relied upon by the defendants is insufficient, and that for the pleading to survive a challenge, the facts on which the comment is based must be evident from the pleadings.
34 Mr Catlin, in his written outline, has proposed that the defendants re-plead their defences to exclude the defence of fair comment.
35 I propose to hear further submissions from Mr Catlin and Ms Schoff to determine whether I should strike out the pleadings or give the defendants leave to file and serve further amended defences.
---
3
0