Sali v ABC (Ruling No 2)

[2013] VSC 719

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS

No. S CI 2013 2088

AVNI SALI	Plaintiff
v
AUSTRALIAN BROADCASTING CORPORATION, CRAIG REUCASSEL, JULIAN MORROW AND NICK MURRAY	Defendants

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 DECEMBER 2013
DATE OF RULING:	18 DECEMBER 2013
CASE MAY BE CITED AS:	SALI v ABC & ORS (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 719

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DEFAMATION — Discovery — Third party subpoenas  - Objection to production of documents— Fishing— Defence of justified conflict of interest imputation — Defence of contextual truth— Objection to proposed further particulars of defence made by subpoenaed party not plaintiff — Plaintiff fails to object - Whether defendant may plead and prove wider general imputation where the plaintiff pleads wide innuendo – Whether instances of conflict of interest of the kind initially particularised occurring prior to publication but not known to defendant at that time may be particularised – Leave to amend particulars given – Subpoenas confined to documents existing at date of publication— Defamation Act 2006 (Vic) s 26— Civil Procedure Act 2010 (Vic) ss 7(1) and 9.

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APPEARANCES:	Counsel	Solicitors
For National Institute of Integrative Medicine and Swisse Wellness	Mr C Shaw	Madgwicks
For the Defendants	Dr MJ Collins SC	Minter Ellison

HIS HONOUR:

1. In this proceeding, Professor Sali claims damages for defamation in respect of the broadcast on 21 March 2013 of a television show entitled ‘The Checkout’. The program was also made available via the ABC’s website.

1. The pleadings have now closed and the defendants have issued subpoenas directed to the National Institute of Integrative Medicine (‘NIIM’) and Swisse Wellness Pty Ltd (‘Swisse’) (together ‘the subpoenaed parties’), which seek production of a number of categories of documents. In respect of NIIM, the documents sought relate to arrangements for payments by Swisse to NIIM, documents recording or relating to payment of moneys by NIIM to Professor Sali and documents relating to a research paper (which I will further explain). None of these categories of documents is confined by date. The subpoena to Swisse seeks documents recording payments to Professor Sali or NIIM or the Graduate School of Integrative Medicine at Swinburne University. Documents in the last category are confined by date but the other categories are also not so confined.

1. The subpoenaed parties contend that the two subpoenas are being used by the defendants for the purposes of fishing. The subpoenas are not intended to obtain evidence in support of the defence, but rather to discover whether the defendants have a defence.

1. Following argument, I substantially rejected the subpoenaed parties’ contentions and ordered that –

(a)The defendants have leave to rely on the further particulars set out in the letter to the plaintiff’s solicitors dated 28 November 2013.

(b)The categories of documents in each subpoena dated 24 October 2013 and addressed to the National Institute of Integrative Medicine and Swisse Wellness Pty Ltd  is limited to documents in the possession, custody or control of the recipient of the subpoena on or prior to 21 March 2013.

(c)The date for compliance with each subpoena is extended to 11 December 2013. 

These are my reasons for doing so.

1. In the television program, the defendants stated, relevantly, that:

(a)the plaintiff is a director of NIIM and the father of the CEO of Swisse;

(b)NIIM receives financial support from Swisse; 

(c)the plaintiff contributed to research concerning the efficacy of Swisse Men’s Ultivite multivitamin tablets, which research was partially funded by Swisse; and

(d)a research paper entitled ‘The effect of multivitamin supplementation on mood and stress in healthy older men’ (the Paper), of which the plaintiff was a contributing author, acknowledged a conflict of interest through financial support from Swisse to NIIM.

1. The plaintiff’s alleged imputations were amended following an earlier ruling of this court.[1] The plaintiff now alleges that in its natural and ordinary meaning, the program was meant and was understood to convey 5 imputations, which, in summary, were relevantly as follows.

(a)Professor Sali was dishonest in that he published a scientific study that made claims about the efficacy of certain Swisse products, which claims could not be justified on any scientific basis or by reference to any evidence based testing.

(b)He was dishonest in that he falsely purported to provide independent scientific support for the efficacy of weight loss products that were ineffective and worthless.

(c)As a result of being a recipient of funding from Swisse, the plaintiff falsely purported to provide independent scientific support for the efficacy of ineffective and worthless weight loss products made by Swisse.

[1]Sali v ABC & Ors [2013] VSC 388 (2 August 2013).

1. By their defence, the defendants denied these imputations and said further that the program was not capable of conveying any of the meanings that were alleged. The defendants plead three specific defences, two of which engage directly with the matters stated in the program, as set out above. The defendants contend that by reason of those matters, the program conveys a true imputation to the effect that the plaintiff has a conflict of interest. This allegation is put by the defendants as justification by a common sting imputation at common law or as a defence of contextual truth under s 26 of the Defamation Act 2005 (Vic).

1. In each case the defendants rely on the same particulars, which, being at the heart of this dispute, I will set out.

Particulars

(i)The plaintiff is a director of the National Institute of Integrative Medicine.

(ii)       The plaintiff is the father of Radek Sali.

(iii)Radek Sali is the Chief Executive Officer of Swisse Vitamins Pty Ltd (Swisse).

(iv)The plaintiff contributed to a paper entitled ‘The effect of multivitamin supplementation on mood and stress in healthy older men’, which reported the results of questionnaires concerning mood and stress that were administered to 50 men aged between 50 and 69 years who had taken either Swisse Men’s Ultivite multivitamin tablets or placebos for a period of 8 weeks (Paper).

(v)       The Paper contains the following words, which were true:

CONFLICT OF INTEREST

The National Institute of Integrative Medicine of which Professor Avni Sali is the current Director receives financial support from Swisse Vitamins Pty Ltd.

(vi)      Further particulars may be provided before trial.

1. Following service, the subpoenaed parties instructed the plaintiff’s solicitors to act for them. Objection was taken to the production of documents beyond August 2010, which was the date of the Paper. The crux of the subpoenaed parties’ submission, both in correspondence and before the court, was that the defendants alleged that conflict of interest existed at the time the Paper was signed off and that documents beyond that date were not relevant to any issue in the proceeding. The defendants were fishing for further fresh allegations to particularise their pleaded defences.

1. The defendants’ solicitors disputed this contention. They contended the pleaded general imputation of a conflict of interest in paragraph 9 of the defence was not confined to the date of the paper. Rather, it was pleaded by reference to the date of the broadcast and the alleged conflict of interest was ongoing. Although the general pleading was confined by particulars, the Paper was an example of the conduct alleged.

1. During the exchange of correspondence about the subpoenas, the defendants’ solicitors drew attention to three further research papers, contending that the plaintiff had since August 2010 continued to publish papers relating to the benefits of ingredients in Swisse products. The defendant’s solicitors stated that further and better particulars of paragraph 9 of the defence would be served as foreshadowed in the original particulars, referring to these papers.

1. By letter dated 28 November 2013, the defendants formally gave further and better particulars of paragraph 9(c) of the defence. Those particulars are:

1.The plaintiff contributed to a paper titled ‘Effects of a multivitamin, mineral and herbal supplement on cognition and blood biomarkers in older men: a randomised, placebo-controlled trial’ (2012) 27 Human Psychopharmacology: Clinical and Experimental 370. The paper contains the following words which were true:

“CONFLICT OF INTEREST

The National Institute of Integrative Medicine of which Professor Avni Sali is currently Director receives financial support from Swisse Vitamins Pty Ltd”.

2.The plaintiff contributed to a paper titled ‘Memory improvements in elderly women following 16 weeks treatment with a combined multivitamin, mineral and herbal supplement’ (2012) 220(2) Psychopharmacology 351. The paper contains the following words which were true:

“Conflicts of interest: National Institute of Integrative Medicine of which Professor Avni Sali is currently Director receives financial support from Swisse Vitamins Pty Ltd”.

3.The plaintiff contributed to a paper titled ‘Participant experiences from chronic administration of a multivitamin versus placebo on subjective health and wellbeing: a double-blind qualitative analysis of a randomised controlled trial’ (2012) 11(1) Nutrition Journal 110.  The paper contains the following words which were true:

“Competing interests: National Institute of Integrative Medicine of which Professor Avni Sali is currently Director receives financial support from Swisse Vitamins Pty Ltd”.

The most recent sign-off by the plaintiff of these papers was December 2012.

1. Professor Sali then filed an affidavit dated 29 November 2013. He stated that the Paper was initially submitted for publication to the Psychopharmacology Journal in August 2010 and he had signed off on the submission of the paper as a listed co-author for that publication. However, the journal ultimately did not publish the paper and it was re-submitted on two further occasions to another journal before it was published in December 2011. He acknowledged the three further papers alleged.

1. Because ‘pleading’ in the Rules includes particulars, a party who gives particulars cannot withdraw, add to, or amend them except in accordance with r 36.03. A party may change their particulars once before the close of pleadings without leave of the court, or at any time by leave or with the consent of all other parties. It is common practice for notice to be given of intention to amend particulars of pleadings as here occurred. The opposing party is given the opportunity to consent to the amendment to avoid costs, and in doing so, that party must observe the paramount duty and the overarching obligations that apply under the Civil Procedure Act, 2010 (Vic).

1. The plaintiff took no objection to the further particulars, either by correspondence or oral submission. However, the subpoenaed parties mounted an objection. The subpoenaed parties contended that I should infer that none of the other papers which the defendants now particularise were available to them when they published the program. They submitted that if defendants plead justification or truth, they must do so on the basis of the information in their possession when the defence is delivered. That defence cannot be pleaded on the basis of facts that can only be discovered by a fishing expedition.[2] The subpoenaed parties contended that it was clear that the original Paper was the paper shown on screen during the program and that no other paper was referred to. That being so, the defendants could not, it was submitted, now rely on these further papers in support of their plea of justification and contextual truth. Accordingly, leave to amend the particulars as contemplated, had it been sought, would not be granted.

   [2]TCN Channel Nine Pty Ltd v Berrigan (1996) Aust Torts Reports 81-404 at 63, 677; Zeirenberg v Lambouchere [1893] 2 QB 183, 188-189; Associated Dominions Assurance Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254.

1. The subpoenaed parties’ objection to the proposed further particulars is not to the point. The plaintiff has not objected. The solicitor for the subpoenaed parties is the solicitor for the plaintiff. There is no suggestion that their clients do not have common interests and the inference from their conduct hardly suggests any conflict. When pressed, counsel for the subpoenaed parties confirmed that his instructions were confined to the interests of the subpoenaed parties and that he had no instructions to represent the plaintiff.

1. This is unsurprising but it is unsatisfactory. There was no reason why any proper objection by the plaintiff to the further particulars could not have been raised, either in prior correspondence or in submissions on the application. Moreover, the subpoenaed parties rely on the plaintiff’s affidavit in which he acknowledges that he is listed as a co-author of each of the further published papers. If the plaintiff opposes leave to provide additional particulars, there was no apparent reason why he would swear an affidavit that deposed to irrelevant matters after being put on notice of the further particulars.

1. Where solicitors permit counsel instructed on behalf of one client to advance an argument that is properly available to another client who has chosen not to take it, there is potential for the court to be misled. Further, the issues in the application that are in dispute may unnecessarily expand. Having regard to s 7(1) and 9 of the Civil Procedure Act 2010 (Vic) it is not in the interests of the just, efficient, timely and cost effective resolution of disputes that parties with common interests seek to preserve multiple opportunities to present the same argument. I will deal with the objection to the further particulars while resolving the subpoena dispute. To assist the plaintiff, I will treat the contention advanced by the subpoenaed parties as advanced on his behalf.

1. Thus, assuming the plaintiff opposes leave to deliver further particulars, I would give leave to the defendant to rely on the further particulars for the following reasons. Here, it is contended by the plaintiff that the program was meant and understood to mean that he falsely purported to provide independent scientific support for ineffective products and did so because he was in receipt of funding from Swisse. The pleadings show that an important issue at trial will be whether the program carried the general, and wider, imputation of conflict of interest that is alleged by the defendants. It is uncontroversial that a defendant may plead and prove the wider imputation.

1. In Li & Anor v The Herald and Weekly Times Pty Ltd & Anor[3] Gillard J stated:

… the plaintiff is in control of his proceeding and pleads the words he complains of and any particular imputations which it is contended the words bear.  The defendant is not permitted to justify an imputation which is separate from the plaintiff’s complaint.  It is different where the plaintiff pleads a wide innuendo, for example, where the publication is that the plaintiff had been arrested and charged with fraud and the plaintiff pleads the innuendo that the words meant that he was a dishonest person.  In Maisel v Financial Times Ltd (1915) 31 TLR 192, the House of Lords held that the width of the innuendo extended the scope of the particulars of justification so as to admit evidence by the publisher of all sorts of dishonesty.

In London Computer Training v BPC [1973] 1 WLR 424, Lord Denning MR, after referring to that House of Lords case, observed (at 427):

In this case, where an innuendo has not been pleaded, we look to see the full width of the meanings which the jury might reasonably put on the words.  The greater the conceivable width the greater the scope of the particulars of justification.

[3][2007] VSC 109 at 222-223.

1. The question of whether the reputational effect of the wider imputation alleged by the defendants swamps the reputational effect of the plaintiff’s imputations is to be determined by weighing up evidence concerning the facts, matters and circumstances underlying each imputation. In John Fairfax Publications Pty Ltd v Blake,[4] Spigelman CJ said of s 16(2)(c) of the Defamation Act 1974 (NSW):

Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a "matter of substantial truth". It is "by reason" of such "substantial truth" that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff's imputation does not "further injure the reputation of the plaintiff". For purposes of determining whether the s 16 defence is capable of being made out, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself.

[4](2001) 53 NSWLR 541 at 5.

1. The conflict of interest imputation is pleaded in wide terms. The particulars provided identify that there is both a personal and a financial relationship between Swisse and NIIM that has resulted in at least one paper relied on by Swisse as independent research. Here, it seems clear that the battleground at trial will concern the nature and extent of the impact of the familial and financial relationships between the plaintiff and the subpoenaed parties when addressing the focus identified in Blake. That is a matter raised on the pleadings about which the defendants are entitled to search for evidence. The allegation is not particularised as the publication of the Paper. As I have explained, it is particularised as a wider conflict of interest, of which the Paper is an example. Further papers suggested to be specific instances of a conflict of interest can properly be added to the particulars initially pleaded. These papers preceded the publication and are properly particulars of the justification and contextual truth allegations and, further, the further particulars precede the subpoenaed parties response to the subpoenas.

1. In Ange v Fairfax Media Publications Pty Ltd & Ors[5] Simpson J observed:

A claim in defamation is directed to the damage done to a plaintiff’s reputation by the publication of what is published by the defendant. A contextual truth defence is equally directed to what is published by the defendant. Subject to the manner in which the plaintiff pleads his/her case, a defamation claim does not ordinarily open up a full-scale inquiry into the plaintiff’s character or conduct.

…

It is possible that an imputation framed so widely that it exceeds what was published would be found not to have been conveyed. It remains for the defendants to persuade the tribunal of fact that a contextual imputation framed as generally as is contextual imputation (i) is conveyed. If it is, then, in accordance with s 26, they are entitled to seek to prove that that imputation is true, by reference to facts well outside what it originally published.

[5][2010] NSWSC 645, at 71 and 73.

1. The defendants’ central allegation about the program it published is that the conflict of interest imputation is substantially true providing the defendants with a defence of justification at common law or a statutory defence of contextual truth. The defendants’ allegation is particularised by reference to a conflict between financial and familial obligations on the one hand and an assertion of independence or impartiality on the other. The defendant will seek to establish that conflict in a context in which not just one but a number of research papers were produced prior to the defamatory publication. These research papers were revealed by the defendants’ own inquiries. The particulars allege an admission of financial support in research papers used by Swisse in advertising its products that sufficiently raise the particular nature of the alleged conflict of interest to permit the subpoenas. I am persuaded that the predominant purpose of the subpoenas is not to impermissibly fish for justifying allegations, but to discover evidence that will be relevant in the inquiry that will obviously be undertaken at the trial of this proceeding. In order to prove the truth of the contextual imputations the defendants may tender evidence in accord with their particularised case. 

1. Although counsel for the subpoenaed parties sought to confine the defendants to their original particulars, he conceded that if those particulars were expanded as foreshadowed, the date to which the subpoenas should be limited would become December 2012. However, bearing in mind that the program was published in March 2013, I see no good reason to confine the operative date for categories of documents in the subpoenas to any date earlier than the date of publication. For the reasons I have given, I am satisfied that the defendants’ particularised case permits them to seek evidence by the subpoenas that have been served, on the proviso that the effective date for disclosure of documents should be the date of publication.

1. In McDonald’s Corporation v Steel[6] Neill LJ observed:

It is true that a pleader must not put a plea of justification (or indeed a plea of fraud) on the record lightly or without careful consideration of the evidence available or likely to become available. But, as counsel for the plaintiffs recognised in the course of the argument, there will be cases where, provided a plea of justification is properly particularised, a defendant will be entitled to seek support for his case from documents revealed in the course of discovery or from answers to interrogatories.

In my view, the defendants’ conduct in respect of its pleadings, its particulars and its subpoenas cannot be regarded as abusing the court’s processes by the use of inadequately particularised allegations or fishing expeditions.

[6][1995] EMLR 527; [1995] 3 All ER 615.

1. While reserving leave to the parties to make submissions on costs, without more I would presently be disposed to order that costs follow the event.

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