Rayney v The State of Western Australia [No 6]
[2015] WASC 279
•7/08/15
RAYNEY -v- THE STATE OF WESTERN AUSTRALIA [No 6] [2015] WASC 279
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 279 | |
| Case No: | CIV:2177/2008 | 20 JULY 2015 | |
| Coram: | CHANEY J | 7/08/15 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Amendments allowed Further particulars to be supplied | ||
| B | |||
| PDF Version |
| Parties: | LLOYD PATRICK RAYNEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Practice and procedure Pleadings Defamation Imputation of suspicion by police Whether permissible Particulars as to grounds for suspicion Whether permissible to rely on existence of evidence as supporting grounds for suspicion Whether necessary to prove underlying facts leading to suspicion |
Legislation: | Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 43 r 16 |
Case References: | Bennett v News Group Newspapers Ltd [2002] EMLR 39 Cash v Morris (1993) 10 WAR 518 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 218 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2006) 221 ALR 186 Lewis v Daily Telegraph Ltd [1964] AC 234; (1963) 2 All ER 151 Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 Morris v Cash (1993) 10 WAR 507 Musa King v Telegraph Group Limited [2003] EWHC 1312 (QB) Musa King v Telegraph Group Limited [2004] EWCA Civ 613 PRL Nominees Pty Ltd v Glaser Nominees Pty Ltd (Unreported, WASC, BC 8801012) S, DJ v Channel Seven Adelaide Pty Ltd (2008) 253 LSJS 468 Shah v Standard Chartered Bank Ltd [1999] QB 241; (1998) 4 All ER 155 Southern Equities Corporation v Western Australian Government Holdings Ltd (No 2) (1993) 10 WAR 351 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Pleadings - Defamation - Imputation of suspicion by police - Whether permissible - Particulars as to grounds for suspicion - Whether permissible to rely on existence of evidence as supporting grounds for suspicion - Whether necessary to prove underlying facts leading to suspicion
Legislation:
Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 43 r 16
Result:
Amendments allowed
Further particulars to be supplied
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
Defendant : Mr T K Tobin QC & Mr C S Bydder
Solicitors:
Plaintiff : Bennett & Co
Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Bennett v News Group Newspapers Ltd [2002] EMLR 39
Cash v Morris (1993) 10 WAR 518
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 218
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2006) 221 ALR 186
Lewis v Daily Telegraph Ltd [1964] AC 234; (1963) 2 All ER 151
Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293
Morris v Cash (1993) 10 WAR 507
Musa King v Telegraph Group Limited [2003] EWHC 1312 (QB)
Musa King v Telegraph Group Limited [2004] EWCA Civ 613
PRL Nominees Pty Ltd v Glaser Nominees Pty Ltd (Unreported, WASC, Library No 7235, 8 August 1988)
S, DJ v Channel Seven Adelaide Pty Ltd (2008) 253 LSJS 468
Shah v Standard Chartered Bank Ltd [1999] QB 241; (1998) 4 All ER 155
Southern Equities Corporation v Western Australian Government Holdings Ltd (No 2) (1993) 10 WAR 351
1 CHANEY J: In these proceedings, the plaintiff seeks damages for defamation said to arise from a series of media conferences held by Detective Senior Sergeant Jack Lee in August and September 2007. It is pleaded that the words spoken at those media conferences, when taken together (the Oral Utterance) or the words spoken at the last media conference on 20 September 2007, (the Alternative Utterance), meant that the plaintiff murdered his wife (statement of claim [6.1]), or alternatively that he had so conducted himself so as to give rise to a reasonable suspicion that he murdered his wife (statement of claim [6.2]).
2 The pleadings have undergone a number of amendments since the action was commenced. Pursuant to an order of the previous case manager, Edelman J, on 17 April 2014, the defendant filed a further amended defence. Paragraph 35 of that defence denies that the words meant that the plaintiff murdered his wife. Paragraph 36(a) pleads that the defendant does not admit that the words used bear the meaning that the plaintiff so conducted himself as to give rise to a reasonable suspicion that he murdered his wife, but to the extent that that imputation was conveyed, it was true. Paragraph 36(b) of the further amended defence provided:
(b) alternatively, the defendant says that each of the Oral Utterance and the Alternative Utterance support the imputation that the plaintiff was suspected by police of having murdered or unlawfully killed his wife and that imputation was true.
3 On 14 November 2014, Edelman J made orders by the consent of the parties pursuant to O 43 r 16 of the Rules of the Supreme Court 1971 (WA) granting the defendant leave to amend [36(b)] by inserting after the words 'his wife' the words 'and that they had reasonable cause for doing so' so that [36(b)] would read:
Alternatively, the defendant says that each of the oral utterance and the alternative utterance support the imputation that the plaintiff was suspected by police of having murdered or unlawfully killed his wife and that they had reasonable cause for doing so and that imputation was true.
4 Leave was also granted to amend the particulars of truth of the allegation in [36(b)] so that those particulars would read:
The police officers involved in Operation Dargan, including DSS Lee, suspected the plaintiff of having murdered his wife and had reasonable cause for doing so on the basis of the matters particularised at particulars (i) to (xxiv) and (xxv) to (xlvi) above having come to their attention prior to the holding of the media conference referred to in paragraph 29 hereof.
5 Order 5 of the orders made on 14 November 2014 further provided that the defendant was to be taken to have filed an application for leave to amend the particulars of truth of allegation of [36(b)] by inserting the words 'of evidence' after 'on the basis' so that the paragraph would read:
The police officers involved in Operation Dargan, including DSS Lee, suspected the plaintiff of having murdered his wife and had reasonable cause for doing so on the basis of evidence of the matters particularised in paragraphs (i), (ii) and (xxiv) to (xlvi) above having come to their attention prior to the holding of the media conference referred to in paragraph 29 hereof.
6 On 8 December 2014, Edelman J made further consent orders pursuant to O 43 r 16 requiring the parties to file written submissions and lists of authorities in relation to the defendant's application 'for leave to amend referred to in Order 5 of the Orders made ... on 14 November 2014'.
7 On 24 December 2014, the plaintiff filed submissions in accordance with Edelman J's order of 8 December 2014. The submissions addressed broader issues than the amendment addressed in [5] of the Edelman J's orders of 14 November 2014. Objection was taken to the entirety of [36(b)] of the further amended defence, rather than being confined to the proposed amendment to the particulars of that paragraph.
8 On 27 February 2015 the defendant filed its submissions in support of its application to amend the particulars to [36(b)] of the defence. The defendant took issue with the plaintiff's entitlement to seek an order striking out [36(b)] on the basis that the amendment had been the subject of consent orders, and that the plaintiff should not be entitled to seek to strike out a pleading to which it had consented.
9 The application thus raises four broad issues. They are:
(i) Should the court entertain the plaintiff's application to strike out the whole of [36(b)] of the further amended defence?
(ii) If so, should [36(b)] be struck out?
(iii) If [36(b)] should not be struck out in its entirety, should the defendant be entitled to insert the words 'of evidence' after the words 'on the basis' in the particulars to [36(b)]?
(iv) If the defendant is permitted to amend the particulars, is the plea of truth of the imputation in [36(b)] nevertheless deficient in that it fails to particularise the evidence upon which the defendant relies?
Is it open to the plaintiff to challenge [36(b)] of the defence?
10 The defendant submits that it is not open for the plaintiff to act inconsistently with the consent to the amendment of [36(b)] in circumstances where the order did not reserve to the plaintiff the right to apply to strike out the pleadings the subject of the consent order. Reliance is placed on the decision of Master Staples in PRL Nominees Pty Ltd v Glaser Nominees Pty Ltd.1 In that case, the Master concluded that, where leave to amend the pleading is required, the appropriate time to challenge amendments is when the application for leave is made, and that, when an order is made giving leave to make specified amendments, the respondent is bound by the order, subject to his right to appeal against it and subject to any provision in the order expressly reserving the right to apply to strike out or disallow the amendment.
11 That decision was followed in Southern Equities Corporation v Western Australian Government Holdings Ltd (No 2),2 in which Master Adams observed that leave is not a formality but rather requires consideration of the merits of the orders by the court, so that leave would not be automatically given where all parties consent.3
12 In this case the pleadings have had a long and somewhat tortured history. That is in part because of events which have taken place since the proceedings were commenced, including the trial and acquittal of the plaintiff on a charge of the murder of his wife, and the defendant's unsuccessful appeal against that acquittal. Those events have led to various amendments of the pleadings, and disputes in relation to them. It is apparent that the amendments, or proposed amendments, to the pleading which formed the subject of Edelman J's orders of 14 November 2014 resulted from extensive conferral between the parties. That conferral had been the subject of orders made by Edelman J on 2 September 2014 and 21 October 2014. In substance, order 5 of Edelman J's orders of 14 November 2014, when read with his Honour's orders of 8 December 2014, reflected the plaintiff's intention to oppose that part of the amendments proposed by the defendant comprising the particulars to [36(b)].
13 It would appear that the argument upon which the plaintiff opposes the amendment to the particulars of [36(b)], as it was fully developed, raised questions as to the permissibility of the plea to which the particulars related, namely [36(b)], notwithstanding that a right to object to that paragraph had not been reserved by the consent orders.
14 The issue as to the permissibility of the plea in [36(b)] has a potentially significant effect on the nature and extent of the evidence that might be led at trial. It is, therefore, highly desirable that that issue be determined in advance of trial. The plaintiff's consent to amendment to [36(b)] would not prevent it advancing arguments at trial as to whether or not the imputation pleaded is open as a matter of law. It is preferable that that matter be addressed now so that the plaintiff is aware of the defence case which he has to meet, and so that the parameters of the evidence the defendant will be required to adduce in support of the justification plea are more clearly defined. Having regard to the principles of case management set out in O 1 r 4B of the Rules of the Supreme Court, and having regard to the interrelationship of the objection to the particulars (which at all times the plaintiff has opposed) to the substantive plea in [36(b)], I do not consider that the plaintiff should now be shut out from applying to strike out [36(b)] in its entirety. The interrelationship between the objection to particulars and the plea in [36(b)] is a distinguishing feature of this case from PRL Nominees and Southern Equities Corporation. The desirability of dealing with the issues now, from a case management perspective, appeared to have been accepted by the defendant's counsel in the course of oral submissions.
Should [36(b)] be struck out?
15 The plaintiff's primary objection to [36(b)] is that he contends that it contains impermissible attribution to police of the relevant suspicion.
16 The starting point of the plaintiff's contention is that the defendant's imputation pleaded at [36(b)] is what counsel for the plaintiff labelled as a 'Chase Level 2 imputation'. That label is derived from a decision of the Court of Appeal in England in Chase v News Group Newspapers Ltd.4Chase concerned a newspaper publication which the plaintiff pleaded as meaning that 'there were very strong grounds to suspect the claimant of having serially murdered at least 18 terminally ill children entrusted to her care and having behaved in an evil manner comparable to' two other notorious medical professionals who had murdered patients. At [45] of that decision, Brooke LJ, with whom Rix and Keene LJJ agreed, said:
The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they mean that there are grounds for investigating whether he/she has been responsible for such an act.
17 That distinction was derived from the passage in the speech of Lord Devlin in Lewis v Daily Telegraph Ltd5 where his Lordship said:
I do not mean that ingenuity should be expended in devising and setting out different shades of meaning. Distinct meanings are what should be pleaded: and a reasonable test of distinctness would be whether the justification would be substantially different. In the present case, for example, there could have been three different categories of justification - proof of the fact of an inquiry, proof of reasonable grounds for it and proof of guilt.
18 Referring to the decision in Shah v Standard Chartered Bank Ltd,6 Brooke LJ in Chase observed that, in order to justify a publication to the effect that there were reasonable grounds to suspect a claimant guilty of an offence, being Lord Devlin's second meaning, the defendant had to establish that there were objectively reasonable grounds for such suspicion.7
19 That approach was adopted by Eady J in Musa King v Telegraph Group Limited,8 a case in which a publication was said to contain a defamatory implication to the effect that there were strong, or at least reasonable, grounds to suspect the plaintiff of involvement in terrorist activity. The defence raised a plea of justification of an alternative meaning that 'the police suspected the Claimant of involvement in terror-related activities on reasonable and/or strong grounds'.9 At [30], Eady J, referring to the passage set out above from Brooke LJ's decision in Chase, said that '[i]t is necessary to remember that a plea of justification may be pitched at one of three levels of gravity in relation to a defamatory sting'. His Honour noted that the case before him was a case where the defence of justification depended upon establishing at least 'reasonable grounds to suspect the claimant' of involvement in terrorist activity. After referring to recent authorities, Eady J said:10
From these authorities (among others) it is possible to derive the following principles, each of which Mr Rampton submits is relevant to the present case:
1) There is a rule of general application in defamation (dubbed the 'repetition rule' by Hirst LJ in Shah) whereby a defendant who has repeated an allegation of a defamatory nature about the claimant can only succeed in justifying it by proving the truth of the underlying allegation - not merely the fact that the allegation has been made.
2) More specifically, where the nature of the plea is one of 'reasonable grounds to suspect', it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged.
3) It is impermissible to plead as a primary fact the proposition that some person or persons (eg law enforcement authorities) announced, suspected or believed the claimant to be guilty.
4) A defendant may (eg in reliance upon the Civil Evidence Act 1995) adduce hearsay evidence to establish a primary fact - but that in no way undermines the rule that the statements (still less beliefs) of any individual cannot themselves serve as primary facts.
5) Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant's part that gave rise to the grounds of suspicion (the so-called 'conduct rule').
6) It has recently been acknowledged, however, by the Court of Appeal in Chase at [50] - [51] that this is not an absolute rule, and that for example 'strong circumstantial evidence' can itself contribute to reasonable grounds for suspicion.
7) It is not permitted to rely upon post-publication events in order to establish the existence of reasonable grounds, since (by way of analogy with fair comment) the issue has to be judged as at the time of publication.
8) A defendant may not confine the issue of reasonable grounds to particular facts of his own choosing, since the issue requires to be determined against the overall factual position as it stood at the material time (including any true explanation the claimant may have given for the apparently suspicious circumstances pleaded by the defendant).
9) Unlike the rule applying in fair comment cases, the defendant may rely upon facts subsisting at the time of publication even if he was unaware of them at that time.
10) A defendant may not plead particulars in such a way as to have the effect of transferring the burden to the claimant of having to disprove them. (emphasis in original)
20 Having outlined those principles, Eady J gave consideration to the plea in the defence that the imputation that 'the police suspected the claimant of involvement in terror related activities' was justified. His Honour accepted a submission by counsel for the plaintiff that the fact that a police officer believed certain allegations, or thought certain facts suspicious, does not render the suspicions 'reasonable' and that suspicions of police officers 'do not in themselves establish reasonable grounds to suspect'.11 He concluded that part of the defence which alleged police suspicions was impermissible as a pleading, although no doubt capable of amendment.
21 Eady J also struck out two subparagraphs of particulars of the plea of justification. They read as follows:
(6) In the light of the above, the Anti-Terrorist Branch at New Scotland Yard suspected that the Claimant was an accomplice of Francis Etim and placed his name on a list of persons suspected by the police of being Islamic extremists in the United Kingdom involved in terrorist offences.
(7) The police raided the Claimant's home on 18 October 2001 and removed a computer, documents and other belongings.
22 That aspect of Eady J's decision was the subject of an appeal by the defendant to the Court of Appeal.12 The principal judgment on appeal was given by Brooke LJ with whom Parker and Kay LJJ agreed. It is apparent that, as a result of Eady J's decision, the plea of justification had been amended to delete reference to police suspicion, and instead plead that the words complained of meant that there were reasonable and/or strong grounds for suspecting the claimants involvement in terror related activities. Brooke LJ recited various aspects of Eady J's decision before dealing with the submissions of counsel for the appellant, Mr Caldecott QC. His Lordship recited that Mr Caldecott had submitted that the paragraph of the original defence dealing with justification had rolled up two meanings in one, namely:
(a) that the police suspected the claimant of involvement in terror related activities; and
(b) that the complainant was suspected of such activities on grounds that were reasonable and/or strong.
23 His Lordship referred to the decision of Eady J to delete subparagraphs (6) and (7) of particulars to the plea of justification.
24 Brooke LJ accepted that the pleading of justification in its original form could be construed as a plea as to the two meanings identified by Mr Caldecott, both of which carried a defamatory sting. He concluded that the defendants were entitled to reinstate subparagraphs (6) and (7) of their particulars of justification provided that the plea of justification in their defence was amended to make a clear distinction between the two different meanings relied upon, and the necessary amendments clearly show which of the particulars of justification are relied upon in support of which meaning.13
25 It is thus apparent that the Court of Appeal in Musa accepted that a plea of an imputation that police suspected the plaintiff of a crime is permissible. I accept that the mere fact that a police officer holds a particular suspicion does not go to prove that there are reasonable grounds for that suspicion. More is required if the pleaded imputation is reasonable grounds for suspicion. The grounds themselves must be proved and must be capable of objectively supporting a reasonable suspicion of the particular offence. What may constitute reasonable grounds is a matter to which I will return to when dealing with the third issue.
26 In my view, the defendant is entitled to plead, and seek to justify, an alternative defamatory meaning of the words, being that the police suspected the plaintiff of the murder of his wife and had reasonable grounds for that suspicion. That is particularly so having regard to the fact that the person uttering the words was, himself, a police officer.
27 That conclusion is consistent with authority in Australia. In Cash v Morris,14 the Full Court of this court considered an imputation pleaded by the defendant accompanied by a plea of justification. The imputation pleaded was that 'the plaintiff was reasonably suspected by police internal investigators of being involved in criminal activity'. Malcolm CJ, with whom Pidgeon and Franklin JJ agreed, held that, as Owen J had concluded at first instance,15 it was permissible for the defendants to plead in the way in which they did.16 The Full Court permitted particulars of that plea comprising, amongst other things, a plea as to the contents of a deposition forming part of the police brief in the matter.
28 In Favell v Queensland Newspapers,17 the High Court considered a complaint by defendants that the words complained of were incapable of conveying defamatory meanings alleged. The imputations included that the appellants committed the crime of arson and also that the appellants were reasonably suspected by the police of committing the crime of arson. Referring to the decision below, Gleeson CJ, McHugh, Gummow and Heydon JJ in their joint judgment said:18
Secondly, Jerrard JA, while accepting a possible imputation of reasonable grounds for suspicion, did not consider that the article could convey the meaning that such suspicion was entertained by the police. Yet the article says that the police treat all fire as suspicious. Once it is accepted that the article could convey that there were reasonable grounds for suspicion, why could not a reader conclude that the police were aware of those grounds, and entertained that suspicion? If the police are investigating a fire, and there are reasonable grounds for suspicion, and those grounds relate to a neighbourhood controversy that the police would be likely to have found out about, it would be natural for the police to be suspicious. There is no convincing reason to prefer the imputation accepted by Jerrard JA to imputation (b) above.
29 In Mirror Newspapers Ltd v Harrison,19 the High Court considered whether a newspaper report which states that a person has been arrested and charged with a criminal offence is capable of bearing the imputation that the person is guilty or probably guilty of the offence. Mason J, with whom Wilson J agreed, concluded that the statement was capable of bearing the imputation that the police suspected the plaintiff of having committed the offence and that they had reasonable cause for doing so.20 Gibbs CJ and Brennan J did not consider it necessary to determine whether the statement would carry the imputation that the suspicion of the informant was based on reasonable grounds, preferring to leave that question open until it was necessary for decision. Nothing in the case, however, suggests that a plea which attributes reasonable suspicion to police on the basis that they had reasonable grounds for the suspicion is not permissible.
30 Accordingly, the application to strike out [36(b)] of the statement of claim should be refused.
Insertion of the words 'of evidence' in the particulars in [36(b)]
31 The plaintiff claims that, in order to justify a pleading that there are reasonable grounds for suspicion, it is necessary to plead and objectively prove the primary facts and matters giving rise to reasonable grounds of suspicion, as explained by Eady J in Musa King. I accept that position as correct. I do not accept, however, that in the context of considering the grounds of suspicion by the police, the primary facts upon which the police could reasonably form their suspicion may not be the existence of evidence which they have gathered. For example, reference was made by counsel for the defendant during submissions, to certain forensic reports which tend to establish circumstances which, together with other circumstances, might support the inference of guilt. In Cash v Morris, Malcolm CJ after saying that it was appropriate to plead a defence of justification of reasonable grounds for suspicion by police, said 'they are entitled to plead any facts which were reasonably capable of giving rise to grounds for suspicion on the part of police internal investigators'.21
32 In Bennett v News Group Newspapers Ltd22the English Court of Appeal considered the application of the 'repetition rule' to cases of suspicion on reasonable grounds. The repetition rule was explained in S, DJ v Channel Seven Adelaide Pty Ltd23 as a rule which:
Requires that a plea of justification based on reasonable grounds of suspicion is not permitted to rely on hearsay evidence. A plea of justification will only be allowed where it pleads facts and not where it pleads repetition of the statement of another.24
33 In Bennett, the court recognised that the repetition rule is concerned with republication of rumour or hearsay, and that rumour and suspicion are different concepts. Their Lordships cited Lewis v Daily Telegraph Ltd as setting out this principle, quoting Lord Hodson in that case:25
Rumour and suspicion do, however, essentially differ from one another … If one repeats a rumour one adds one's own authority to it and implies that it is well founded, that is to say, that it is true. It is otherwise when one says or implies that a person is under suspicion of guilt. This does not imply that he is in fact guilty but only that there are reasonable grounds for suspicion, which is a different matter.
34 The court drew the distinction between evidence of a statement of a witness being inadmissible as proof of the truth of what is stated and evidence of a statement as proof of the fact that it had been made [36].
35 In my view, the existence and availability of evidence, whether in the form of physical evidence, expert reports or witness statements is a fact capable of constituting reasonable grounds for suspicion. No doubt it is necessary for the defendant to prove that the evidentiary material does provide reasonable grounds for suspicion. Thus, questions of the adequacy of the evidence in its totality, the reliability of particular parts of the evidence, whether particular evidence was available at the time of the allegedly defamatory statements were made, or any other criticisms as to the cogency of the evidence, are matters to be explored at trial.
36 In my view, it is open to the defendant to insert the words 'of evidence' into the particulars to [36(b)].
Are the particulars to [36(b)] deficient?
37 In their amended form, the particulars of [36(b)] identify the basis of the suspicion as 'evidence of the matters particularised in paragraphs (i) to (xxiv), and (xxv) to (xlvi)'. The subparagraphs referred to are pleaded as particulars of truth of the allegation in [36(a)] and refer to certain conduct by the plaintiff and various other circumstances which are said to support the imputation pleaded in statement of claim [6.2]. Those subparagraphs do not, however, identify the evidence in the possession of the police at the time of the allegedly defamatory statements were made, but at best only the matters to which, presumably, the evidence was directed.
38 In my view, if it is to rely on the existence of evidence as the facts supporting the reasonable suspicion, it is necessary for the defendant to particularise the evidence upon which it relies.
39 The defendant submits that the particulars are adequate to enable the plaintiff to know the case he has to meet and that:26
The underlying facts already particularised enable the plaintiff to assess whether, in respect of any item of evidence (with which he should be familiar given the criminal trial and appeal), it is relevant to any underlying fact and was known to the police at the relevant time.
40 I do not accept that submission. There was a significant period of time between when the words complained of were said and when charges were laid. No doubt a significant amount of evidence was obtained by police during that period. The plaintiff should not be expected to guess which items of evidence are relied upon by the defendant to justify the statement at the relevant time. Whilst it may be a burden for the defendant to particularise the relevant evidence in its pleading, that is a burden which must necessarily be undertaken in the ultimate presentation of the case at trial. Fairness demands that the plaintiff know the particulars of the evidence, the existence of which is a fact relied upon in the plea of justification, in order to know the case he has to meet at trial.
41 I propose, therefore, to order that the defendant provide further and better particulars of the evidence referred to in the particulars to [36(b)] of the defence in its amended form.
Conclusion
42 For those reasons, the application to strike out [36(b)] of the defence should be refused, the defendant should have leave to insert the words 'evidence of' in the particulars to [36(b)] of the defence, and the defendant should be ordered to provide further and better particulars of the evidence referred to in the particulars to [36(b)] of the defence.
1PRL Nominees Pty Ltd v Glaser Nominees Pty Ltd (Unreported, WASC, Library No 7235, 8 August 1988) (Staples M).
2 Southern Equities Corporation v Western Australian Government Holdings Ltd (No 2) (1993) 10 WAR 351.
3Southern Equities Corporation v Western Australian Government HoldingsLtd (No 2) (1993) 10 WAR 351, 352.
4Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 218.
5Lewis v Daily Telegraph Ltd [1964] AC 234; (1963) 2 All ER 151, 172.
6Shah v Standard Chartered Bank Ltd [1999] QB 241; (1998) 4 All ER 155.
7Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 [48].
8Musa King v Telegraph Group Limited [2003] EWHC 1312 (QB).
9Musa King v Telegraph Group Limited [2003] EWHC 1312 (QB) [9].
10Musa King v Telegraph Group Limited [2003] EWHC 1312 (QB) [32].
11Musa King v Telegraph Group Limited [2003] EWHC 1312 (QB) [38].
12Musa King v Telegraph Group Limited [2004] EWCA Civ 613.
13Musa King v Telegraph Group Limited [2004] EWCA Civ 613 [33].
14 Cash v Morris (1993) 10 WAR 518.
15 Morris v Cash (1993) 10 WAR 507 (Owen J).
16Cash v Morris (1993) 10 WAR 518, 520.
17Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2006) 221 ALR 186.
18Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2006) 221 ALR 186 [13].
19Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293.
20Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293, 301.
21Cash v Morris (1993) 10 WAR 518, 522.
22Bennett v News Group Newspapers Ltd [2002] EMLR 39.
23S, DJ v Channel Seven Adelaide Pty Ltd (2008) 253 LSJS 468.
24S, DJ v Channel Seven Adelaide Pty Ltd (2008) 253 LSJS 468 [19], quoted in Sands v South Australia [2013] SASC 44 [230].
25Lewis v Daily Telegraph Ltd [1964] AC 234; (1963) 2 All ER 151, 274 - 275.
26 Defendant's submissions dated 27 February 2015 [33].
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