Traill v ABC
[1988] TASSC 69
•5 February 1988
Serial No B1/1988
List "B"
COURT: SUPREME COURT OF TASMANIA
CITATION: Traill v ABC [1988] TASSC 69; (1988) Tas R 1; B1/1988
PARTIES: TRAILL
v
AUSTRALIAN BROADCASTING COMMISSION, The
SWINSON, Michael John
FILE NO/S: MA 60/1987
DELIVERED ON: 5 February 1988
JUDGMENT OF: Nettlefold J
Judgment Number: B1/1998
Number of paragraphs: 28
Serial No B1/988
List "B"
File No MA 60/1987
TRAILL v THE AUSTRALIAN BROADCASTING COMMISSION and MICHAEL JOHN SWINSON
REASONS FOR JUDGMENT NETTLEFOLD J
5 February 1988
Paragraph 17 of the defence pleads that "The publication complained of was true and was published for the benefit of the public".
The particulars of that paragraph which the plaintiff sought were:–
"(a)Specify all the facts and circumstances by reason of which it is said that the publication was true.
(b) Specify the benefit of the public.
(c)Specify all the facts and circumstances by reason of which it is said that the publication was for the benefit of the public."
The particulars which were supplied in response to that request were as follows:–
"(a) This is a matter of evidence.
(b) The public benefits for which the matter complained of was published were:–
(i) That the public have knowledge of statements of a member or members of the staff of the Premier of Tasmania which, if true, and if carried out, may have been a conspiracy or part of a conspiracy to pervert the course of justice.
(ii) That the public be made aware of the fact that a person or persons in the Premier's office believed that the Court action against the Plaintiff could be terminated by means which were illegal and otherwise than by a hearing in Court.
(iii) That the public be made aware that the Plaintiff, an employee in the Forestry Commission of Tasmania, took or attempted to take Huon Pine from the South West National Park in Tasmania when he did not have a permit to do so, contrary to the National Parks & Wildlife Regulations.
(c) It was for the public benefit for the public to know the truth about the matters particularized in (b) above."
At the end of the day counsel for the plaintiff confined his submissions on the above particulars to the proposition that there had been a total failure to comply with the order for the supply of further and better particulars under para (a) above, that is the request to "specify all the facts and circumstances by reason of which it is said that the publication was true". It is plain, of course, that that submission by counsel for the plaintiff is correct. But it is also plain that it was appropriate for an order to have been made that these particulars be supplied. The defendant's response "This is a matter of evidence" is wholly inappropriate. The relevant principle is stated in the following passage from Marks & Anor v Wilson–Boyd & Ors [1939] 2 All ER 605 at 608:–
"A plaintiff is entitled to know with certainty on what the defendant intends to rely in support of his plea. Indeed, it has been said that the justification ought to state the facts with as much particularity as an indictment. No doubt in the great majority of cases a plea in this bald form ought to be supplemented by particulars from which the plaintiff can ascertain the precise nature of the charge which it is proposed to make against him, for he needs this information in order to prepare his evidence for the trial. Each case, however, must depend on its particular facts. If the words charged as a libel are themselves so specific – that is, precise – that the plaintiff must know from them what the charge is, no further particulars are required."
This case does not fall within the exception described in the above words "if the words charged as a libel are themselves so specific – that is precise – that the plaintiff must know from them what the charge is no further particulars are required". The statement of claim sets out the quite lengthy publication verbatim and alleges in paras 6–15 inclusive thereof a number of meanings which the words, in their natural and ordinary meaning, are alleged to convey. Speaking generally, the defendants in their defence either deny or decline to admit the allegations contained in paras 6–15 inclusive of the statement of claim. However, this general statement needs to be qualified in two respects, namely:–
(a)The allegation in para 11 of the statement of claim is admitted. That allegation is "The said words in their natural and ordinary meaning meant and were understood to mean that the Plaintiff's contention that he had checked with his Head Office before going on the trip was not true or was of dubious veracity".
(b)One of the allegations contained in para 12 of the defence is admitted. That allegation is "The said words in their natural and ordinary meaning meant and were understood to mean that the Plaintiff's conduct involved taking timber from stands of Huon Pine".
The following issues emerge from this analysis:–
Do the words of the publication mean and were they understood to mean (inter alia) –
(a)had the case proceeded the plaintiff would have been found guilty of a blatant disregard for the law and the State's National Parks;
(b)the case was not proceeded with, inter alia, for reasons unconnected with the plaintiff's innocence or the lack of any reasonable expectation of a finding of guilt;
(c)that the action was not proceeded with as a consequence of a conspiracy to pervert the course of justice and the wish of a third party to have the case killed;
(d)that the plaintiff has received favoured treatment by the law and had he been treated as an equal in the eyes of the law the case would have proceeded and he would have been convicted;
(e)the plaintiff had been caught in the act of committing a crime – the crime being the taking of Huon Pine in the South West National Park and he had been apprehended;
(f)the plaintiff was a threat to the massive stands of Huon Pine, Tasmania's most precious timber;
(g) the plaintiff did not act with responsibility towards the State's precious timber resources;
(h)the plaintiff was not a fit and proper person to be a senior officer with the Forestry Commission.
The portion of the defence, particulars of which are sought, is in general terms, that is, "the publication was true". Presumably that means that the publication when correctly understood in its natural and ordinary meaning was true. The words charged as defamatory are not so specific, or precise, that the plaintiff must know from them what the charge is. If this aspect of the pleadings is left with the request for particulars, now embodied in an order, not complied with, there is an unacceptable risk that the plaintiff will be treated unfairly by being taken by surprise. The following words of Asprey J in Cohen v Mirror Newspapers Ltd (1965) 83 WN(NSW) Part 1, 369 at 372 apply to this case. His Honour said:–
"However, the facts in the present case are quite the reverse of those in Marks v Wilson–Boyd in which the words charged were in their natural meaning so specific and clear as not to require further particulars."
Paragraph 18(a) of the defence is to the following effect:–
"18In the alternative, insofar as and to the extent that it may be found that the said matters were defamatory of the Plaintiff as alleged, the said matters:
(a) Were published for the purpose of giving information to the persons to whom the publication was made with respect to subjects as to which those persons had or were believed by the publishers to have had such an interest in knowing the truth as to make the publishers' conduct in making the publication reasonable in the circumstances."
That, of course, is a plea of qualified protection based on s16(1)(e) of the Defamation Act 1957.
The plaintiff has an order requiring the defendants to deliver the following further and better particulars of this defence:–
"2 Paragraph 18(a)
(i) Specify the purpose of giving information to the persons to whom the publication was made.
(ii) Identify or describe the persons to whom the publication was made.
(iii) Specify the subjects referred to.
(iv) Specify the interest of the persons to whom the publication was made in knowing the truth.
(v) Specify the facts and circumstances by reason of which it is said that the Defendants' conduct in making the publication was reasonable in the circumstances."
The defendants delivered the following particulars in response to that request:–
"As to Paragraph 18 (a):
(i)The purpose was that described in paragraph 18 (a) of the Defence and is particularized in the answers to (ii)– (v) of this particularization of paragraph 18 (a).
(ii)The persons to whom the publication was made were the viewers, members of the public, of ABC Television in Tasmania. The publication was televised throughout Tasmania.
(iii) The subjects were:–
(a) Protection of Huon Pine in Tasmania.
(b) Removal of Huon Pine from the South West National Park.
(c) Permits required for such removal.
(d)The actions of the Plaintiff, an employee of the Forestry Commission in Tasmania, in removing Huon Pine from the South West National Park.
(e)The prosecution of the Plaintiff for breach of the National Parks & Wildlife Regulations.
(f) The abandonment of the said prosecution.
(g)The belief of a member of the Premier's staff that the said prosecution could be improperly illegally stopped.
(h)The statement by a member of the Premier's staff to the effect that the prosecution could be stopped but that it would be very hard to do so.
(i)Interference in the due process of law by a member or members of the Premier's staff and unknown persons.
(iv)The interest of the persons to whom the publication was made was to know the truth about the matters in (iii) (a – i) hereof, and of the matters particularized for Paragraph 17(b) of these particulars.
(v) The publication was reasonable in the circumstances:–
(a)The members of the public, viewers of the first Defendant's televised publication, had an interest in knowing the truth as previously particularized above.
(b)The first Defendant by its officer and servant the second Defendant, and the second Defendant for himself, believed that the said viewers had an interest in knowing the truth as previously particularized above."
As I understand the final position taken by counsel for the plaintiff on the hearing of this appeal, he does not complain that the particulars supplied in respect of this defence are inadequate except in relation to the particulars of the purpose of giving information to the persons to whom the publication was made. As to that subject, he contended that the particulars were "quite inadequate".
I do not accept this submission by counsel for the plaintiff. Contrary to the submission of counsel for the plaintiff, I find the statement of the purpose given in the particulars clear, although indirect and inelegant.
Paragraph 18(b) of the defence is as follows:–
"18 In the alternative, insofar as and to the extent that it may be found that the said matters were defamatory of the Plaintiff as alleged, the said matters:
(a) ........
(b) Were published for the public good."
That is a defence of qualified protection under s.16(1)(c) of the Act.
The defendants were ordered to supply particulars in accordance with the following request:–
"Paragraph 18(b)
(i) Specify the aspect of public good for which the matters were published.
(ii)Specify the facts and circumstances relied upon to establish the existence of such an aspect of public good.
(iii)Specify the facts and circumstances by reason of which it is said that the matters published were for the public good."
The particulars supplied are as follows:–
"As to Paragraph 18(b)–
The Public good –
The Defendants repeat the particulars for Paragraphs 17 (b) and 18 (a) hereof."
First, it is relevant to observe that there are very persuasive precedents from earlier New South Wales practice for making an order requiring the delivery of particulars along these lines. (See Ampol Petroleum Ltd v Shell Company of Australia Ltd [1966] 1 NSWR 30 at pp 32 and 34; Leslie v Mirror Newspapers Ltd (1970) 91 WN(NSW) 648 at 651 and 652; Packer v Mirror Newspapers Ltd [1972] 2 NSWLR 68 at 71 and 78). For a long time now in Tasmania we have pursued the philosophy, expressing it broadly, that we should take a liberal approach to requests for supply of particulars so that anything in the nature of trial by ambush will be avoided. That being the Tasmanian approach, adoption of the New South Wales precedents is amply justified. Second, it is also relevant to observe that the scope of the protection "for the public good" remains unclear (Fleming: The Law of Torts, 6th ed, pp 543–4). The views of Jacobs J and Stephen J in Calwell v Ipec Australia Ltd (1975) 135 CLR 321 on this topic were not adopted by the other members of the Court and, hence, are of persuasive value only. The views of those two judges on that subject are in conflict with the unanimous view of the members of the New South Wales Court of Appeal in the same case (see [1973] 1 NSWLR 550 at 561). Speaking of this defence of "public good" Reynolds JA said:–
"The words of the statute obviously require something more than, or different from, a publication which relates to a matter of public interest."
That view was adopted by the other members of the Court. Their Honours did not criticise the following ruling on this aspect of the matter by the trial judge:–
"I am of opinion in this case that the concept of the public good is in no way involved. It is true that there are matters of such high policy that the publication of any matter, true or false, relevant to that matter would be for the public good. I do not regard this as such a case. I do not think that the public good is involved in the circumstances of this case and in the circumstances of this publication. I do not think that the public good was advanced by the publication. I do not think that the public good was retarded by the publication. I do not think that the public good would have been advanced or retarded if the publication has (sic) not been made. The public good is on a place (sic) higher than is reached by any contemplation of the matter he has sued upon and in my opinion that plea fails."
It appears that the proposition stated by Chambers J in Farquahar v Otolaryngological Society of Australia [1976] Tas SR 159, namely, "public good", "public benefit" and "public interest" in this context mean the same thing is open to some question. The question about that proposition is emphasised by a consideration of the actual decision of the High Court in Calwell's case. The Court has ruled in effect that it is a question of law for the judge to determine whether the conditions prescribed by s16 (Tas) are fulfilled subject to the jury deciding any disputed issue of fact on which the resolution of the ultimate question may depend. In Tasmania, that proposition must co–exist with the provisions of s20 of the Defamation Act 1957 which provide (inter alia) that the question whether the public discussion of any subject is or is not for the public benefit is a question of fact. In deciding an issue of "public good" under s16(1)(c) a judge will be bound to reason by reference to precedent and analogy. No such obligation can be imposed on a jury when deciding a "public benefit" issue referred to in s20. This consideration makes it difficult to accept the proposition that "public good" and "public benefit" mean the same thing when the judge cannot treat the question he has to decide, ie "for the public good" as at large but the jury may treat the issue of "for the public benefit" as very much at large.
In the discussion of the "public good" defence in Calwell's case the dominant fact was that the plaintiff was an active politician of first rank standing. The plaintiff in the present case is in a very different position. He is a private citizen who happens to get a living working in a government department. In his capacity as an employee he is subject to the control of his superiors. He is entitled to the adjudication of a court before an offence against a quasi–criminal law is sheeted home to him. Generally speaking, the discussion of his activities is hardly likely to advance or retard the public good. In making these observations about the plaintiff's situation I have in mind the following propositions:–
(1) "In my view the cases where it may be for the public good that a private individual should have defamatory matter published concerning him, whether it be true or false, are very limited indeed" (per Jacobs JA in Bridges v Australian Consolidated Press Ltd [1967] 2 NSWR 511 at 521).
(2) "There is no public good in publishing allegations about the private behaviour of public sporting figures irrespective of the truth or falsity of the allegations. If the allegations are true then it may be capable of being said that it is for the public benefit that they be published. If a jury so found the defence of justification would be established. But this is far from saying that the publishing, true or false, of such allegations is for the public good" (Ware ("Dawn Fraser") v Associated Newspapers Ltd (1969) 90 WN(NSW) 180 at 186 per Jacobs JA).
The above observations persuade me that the particulars supplied under this head are quite inadequate. The critical principle is that a party must be made aware of the nature of the case he is called upon to meet (Sims v Wran [1984] 1 NSWLR 317 at 321). The plaintiff cannot determine from the particulars supplied of this defence what case he has to meet. It is essential that the defendants respond specifically, directly and succinctly to each of the requests (i), (ii), (iii).
Paragraph 18(c) of the defence is to the following effect:–
"18 In the alternative, insofar as and to the extent that it may be found that the said matters were defamatory of the Plaintiff as alleged, the said matters:
(a) ........
(b) ........
(c) Were published for the protection of interests of the public."
The following request for particulars was delivered:–
"Paragraph 18(c)
(i) Specify the interests of the public the matters were published to protect.
(ii)Specify the facts and circumstances by reason of which it is said that the matters published related to the interests of the public.
(iii)Detail the facts and circumstances by reason of which it is said that the matters were published for the protection of the interests of the public."
That request brought the following response:–
"As to Paragraph 18 (c)
(i)The interests of the public which the matter complained of was published to protect.
As particularized herein for Paragraphs 17(b) and 18:–
(a) The public conduct of an employee (the Plaintiff) of the Forestry Commission in Tasmania.
(b) The apparently unlawful conduct of the Plaintiff.
(c) The due process of law.
(d) The conduct of the staff of the Premier of the State of Tasmania.
(ii) Facts and circumstances relied upon
(a) Huon Pine was a valued and protected timber, grown only in Tasmania.
(b) Removal of Huon Pine from the South West National Park was prohibited without a valid permit.
(c) The Plaintiff removed or attempted to remove Huon Pine from the South West National Park without a permit.
(d) A complaint was laid against the Plaintiff for the above conduct.
(d)(sic) The said complaint was withdrawn by the complainant in the Court of Petty Sessions, Hobart before it could be determined on the facts.
(e) The Premier of the State of Tasmania was at all material times Minister in charge of Forests in Tasmania and employed public servants, employees of the Crown, were on his staff.
(iii)The matter complained of was published for the protection of interests of the public:–
(a) The Defendants repeat the particulars above in 4(i) and 4(ii)."
Some of the general comments above concerning the request for particulars of the "public good" defence are relevant here also. More specifically, I regard the decision of Asprey J in Cohen v. Mirror Newspapers Ltd (supra) as one which conforms with the philosophy of the Tasmanian courts which has been adverted to earlier. I refer in particular to p373 of the report. I accept the submissions of counsel for the plaintiff to the effect that the particulars supplied in response to requests 4(i) and 4(iii) are inadequate.
For these reasons there will be the following orders:–
1 Appeal allowed.
2 The defendant must deliver further, better and adequate particulars in accordance with these reasons within 14 days. In the event of non–compliance with this order the plaintiff is to be at liberty to restore to the lists for hearing the Interlocutory Application filed 30 March 1987.
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