Watpac Australia Pty Ltd v the North Queensland Newspaper Company Limited

[1997] QSC 55

IN THE SUPREME COURT

OF QUEENSLAND

No 2041 of 1995

Brisbane

Before the Hon. Justice Williams

[Watpac Australia Pty Ltd v The North Queensland Newspaper Company Limited & Anor]

BETWEEN:

WATPAC AUSTRALIA PTY LTD
  ACN 010 462 816
  Plaintiff
AND:

THE NORTH QUEENSLAND NEWSPAPER COMPANY LIMITED
  ACN 009 665 690
  First Defendant
AND:

TERRY BUTTS
  Second Defendant

JUDGMENT - WILLIAMS J

Judgment delivered 10/04/1997

CATCHWORDS:     DEFAMATION - pleadings - reply - allegation of want of good faith - pleading held adequate.

Counsel:DR Cooper for applicant-defendants

Applegarth for respondent-plaintiff

Solicitors:Middletons Moore & Bevins T/A for Suthers & Taylor, Townsville for applicant-defendants

Phillips Fox for respondent-plaintiff

Hearing Date:   14 February 1997

IN THE SUPREME COURT

OF QUEENSLAND

No 2041 of 1995

Brisbane

[Watpac Australia Pty Ltd
v. The North Queensland Newspaper Company Limited & Anor]

BETWEEN:

WATPAC AUSTRALIA PTY LTD
  ACN 010 462 816
  Plaintiff

AND:

THE NORTH QUEENSLAND NEWSPAPER COMPANY LIMITED
  ACN 009 665 690
  First Defendant

AND:

TERRY BUTTS
  Second Defendant

JUDGMENT - WILLIAMS J

Judgment delivered 10/04/1997

The respondent, Watpac Australia Pty Ltd, has sued the applicants, The North Queensland Newspaper Company Limited and Terry Butts, for damages for defamation arising out of an article which was published in the Townsville Bulletin on 25 September 1995.  By the summons now under consideration the applicants seek to have the respondent's reply struck out or amended "on the ground that it tends to prejudice, embarrass or delay the fair trial of this action."
           The article in question is set out in full in the statement of claim and the allegation is therein made that the "matter complained of was defamatory of the Plaintiff according to its natural and ordinary meaning".  It is not necessary to set out all the matters alleged in the statement of claim but it is of some significance to note the following allegations:

"7.Prior to the publication of the matter complained of, the Defendants:

(a)made no enquiry of the Plaintiff concerning the material which they intended to publish;

...

(c)deliberately chose not to approach the Plaintiff in order to ascertain its response to the matter which they intended to publish;

(d)failed to make any or any adequate enquiry of other persons with knowledge of the Plaintiff's involvement in the roadworks.

8.The Defendants published the matter complained of:

(a)intending that it injure the Plaintiff's reputation;

(b)knowing that it was likely to injure the Plaintiff's reputation;

(c)with reckless indifference as to its truth or falsity;

...

(f)without being satisfied that there was a sufficient foundation in fact for making the imputations pleaded herein, or imputations to like effect;

(g)in contumelious disregard of the Plaintiff's rights."

The applicant-defendants sought further and better particulars of some allegations made in the statement of claim and they were duly provided.  Nothing however touched on the extracts quoted above.
           The defence raises a number of issues and the matters of relevance for present purposes can be summarised.  I have adopted the paragraph numbers from the defence in formulating the following summary:

5.Publication of the matter complained of constituted a fair comment made in respect of a communication made to the public.

6.In so far as the publication of the matter complained of contained statements of fact which were defamatory, the matters published were true and it was for the public benefit that the publication should be made.

7(a)       The publication was made in good faith for the public good;

(b)The publication was made in good faith for the purpose of giving information to those to whom it was made with respect to a subject as to which those persons had, or were believed on reasonable grounds to have, such an interest in knowing the truth as to make the conduct in publishing the matters complained of reasonable under the circumstances;

(c)The publication was made in good faith in the course of, or for the purposes of, the discussion of a subject of public interest, the public discussion of which was for the public benefit and in so far as the publication contained comment, such comment was fair.

On 25 March 1996 the respondent-plaintiff delivered a reply and also a request for further and better particulars of the defence.  The response from the applicant-defendants to that request was dated 31 May 1996 and substantially amounted to an assertion that the request for various particulars was "not a proper request".  That resulted in the respondent-plaintiff applying to the court for an order that the applicant-defendants provide the further and better particulars as requested.  That application was heard on 16 July 1996, but no decision thereon has yet been made.  It is interesting to note that in the written submissions of the applicant-defendants provided on the hearing of that application it was asserted that the reply was "detailed" and that as the reply alleged bad faith in respect of the defence of fair comment "the Plaintiff will be able to deal with this issue at trial."
           By letter dated 2 August 1996 the applicants first complained about the adequacy of the reply.  The solicitors for the respondent-plaintiff replied by letter dated 15 August 1996 stating that "any proper request for Further and Better Particulars will be considered".  The response was the letter from the solicitors for the applicants dated 13 December 1996 saying that they would apply to strike out the reply.  It is that application which is now before the court.
           In the circumstances it is necessary to set out the critical paragraphs of the reply in full:

"2.As to paragraph 7 of the Defence, the Plaintiff denies that the publication and republications complained of (hereinafter called "the publications") were made in good faith.

Particulars

(a)The manner and extent of the publication exceeded what was reasonably sufficient for the occasion in that the publication consisted of unwarranted allegations concerning the Plaintiff:

(i)which were couched in extravagant language;

and

(ii)which were published to persons with no interest or, alternatively, no legitimate interest in receiving such allegations;

(b)The Defendants were actuated by ill will or some other improper motive;

(c)The Defendants believed the defamatory matter to be untrue, or were recklessly indifferent as to its truth or falsity;

(d)The matter complained and, in particular, the references to the Plaintiff, were not relevant to the matters the existence of which may excuse the publication in good faith of defamatory matter;

(e)The imputations conveyed by the publications were false and were published by the Defendants with knowledge of their falsity or, alternatively, with reckless indifference as to whether or not they were true;

(f)The matter complained of was inherently malicious because of its language and style;

(g)The Defendants failed to take any or any adequate care to ensure that it did not publish matter containing false imputations.

3.Further, in reply to paragraphs 5 and 7(c) of the Defence, the Plaintiff says that any comment was not a "fair comment" and was actuated by malice.

Particulars of Malice

The Plaintiff repeats and relies upon the matters contained in paragraph 2 herein."

As the letter from the solicitors for the respondent-plaintiff of 15 August 1996 makes clear by paragraph 2(f) of the reply "the Plaintiff proposes to rely upon intrinsic evidence of malice in the terms and style of the article itself."
           It can be seen that in essence the respondent-plaintiff responds to paragraphs 5 and 7 of the defence by alleging want of good faith on the part of the applicant-defendants in publishing the article in question.  Those paragraphs of the defence are couched in very broad terms, and in the main merely plead the words of the statute.  In similar vein, the reply in alleging want of good faith largely does so by using the words of the relevant statutory provisions.  On the hearing of the application there was no suggestion from counsel for the applicant-defendants that the alleged deficiencies in the reply could be cured by the giving of particulars; so far as the argument before the court revealed there was no mere defect in particularity in the reply.  If it was not struck out, the inference was that it was sufficient in particularity.
           The major premise in the argument for the applicant-defendants was that the reply failed to comply with the basic requirements of O.22r.1 that a pleading contain a statement setting out the material facts on which the party relies to support its pleading.
           It must be remembered that there is nothing in O.22 which requires a party to set out the evidence by which it seeks to establish a matter put in issue by the pleadings.  In paragraphs 5 and 7 of the defence one finds expressions such as "fair comment", "communication made to the public", "good faith", "for the public good", and "public discussion of which was for the public benefit".  There is nothing in the defence to indicate what is meant by those expressions, nor anything to indicate how those matters are to be proved.  That seems to accord with the way in which pleadings in defamation actions are exchanged in this jurisdiction.  The reply puts in issue the questions of "good faith" and "fair comment" relied on in the defence; it does not merely put those matters in issue, but in paragraph 2 (a) to (g) gives particulars of how and why the respondent-plaintiff alleges that there was an absence of "good faith" or "fair comment".
           Given those particulars alleged in the reply it is difficult to see what more the respondent-plaintiff could do without setting out the evidence by which such particulars are to be proved, something which is not allowable under the rules.  Whether the applicant-defendants establish good faith, or the respondent-plaintiff establishes the absence thereof, will ultimately be a matter for the tribunal of fact; it will be an issue to be decided upon the evidence at the trial.  The reply clearly joins issue with the allegations in the defence.
           A basic submission by counsel for the applicants was that the reply was so deficient in alleging material facts that it was impossible to understand the case being made.  The pleadings must, in my view, be considered as a whole and when one reads the statement of claim, the defence, and the reply there can be little or no doubt as to what are the issues for the tribunal of fact.  The pleadings define the issues with sufficient clarity so that appropriate rulings on the admissibility of evidence can be made.
           The statement of claim clearly raises all issues of fact necessary to establish the plaintiff's cause of action.  If there is any deficiency in the reply it is derived from the general nature of the defences raised; what the plaintiff is saying is that whatever the facts be on which the defendant seeks to rely in order to establish "good faith" or "fair comment", the court should find that such are not sufficient to establish the defences raised - rather the facts as found would indicate the absence of "good faith" or "fair comment".
           It was submitted by counsel for the applicant-defendants that it was "unintelligible" to allege in paragraph 2(a)(i) that the matter complained of by the plaintiff was "couched in extravagant language".  If one reads the words of the article complained of then, without in any way pre-judging the ultimate issue for determination by the jury, one can, in my view, clearly see the basis upon which the plaintiff-respondent contends that the terms and style of the article itself constitute intrinsic evidence of malice.  The allegation is clearly and specifically made in the reply, and it is a matter which can be appropriately addressed by the applicant-defendants at trial.
           The submissions by counsel on behalf of the applicant-defendants made much of the fact that there were two defendants and the reply did not distinguish between them.  It is clear from the statement of claim that it is alleged that the second defendant was the author of the article which was published in the first defendant's newspaper.  By the defence the first defendant denies that it published the matter complained of; I do not really know what that means in the circumstances of the case.  Is the first defendant saying that the article was not published in the Townsville Bulletin on 25 September 1995?  Surely not.  It is then denied that the second defendant "wrote the matter complained of".  What does that mean?  Is it an allegation that though the offending article appeared in the newspaper it was not written by the second defendant?  Given the vague denials contained in the defence, and the specific allegations contained in the statement of claim, it is not unreasonable for the respondent-plaintiff to deal with both defendants on the same footing in the reply.  Certainly the reply does not put either defendant at a disadvantage.  The submission is made that from the point of view of the applicant-defendants paragraph 2(b) of the reply is "either otiose or embarrassing"; there is no substance at all in that contention.  As already noted a clear allegation is made by the plaintiff-respondent that the very terms of the article itself establish an absence of good faith, and if that contention is accepted then the consequences attach to each defendant.
           Some point was made in the course of submissions as to the use of the expression "ill will or some other improper motive"; however, that seems to be an expression regularly used in this area of the law (see, for example, Australian Consolidated Press Limited v. Uren (1966) 117 CLR 185 at 210). There is, in my opinion, no deficiency in the pleading because that expression is used as it is in paragraph 2(b) of the reply.
           The submission was then made that in paragraphs 2(c)(d)(e)(f) and (g) of the reply one found an allegation of a factual conclusion or a pleading in terms of the statute.  Given that this is a reply and that it is in response to general issues raised by the defence I am of the view that there is no deficiency in the pleading.
           This is not a situation where it is alleged that there has been an omission to plead a material fact necessary to establish the cause of action.  There is no attack on the statement of claim in so far as it pleads facts necessary to support the cause of action.  In the reply there is a joinder to the general issues raised by the defence and, in my view, the joinder is made with sufficient particularity to make the pleading an appropriate one.
           Counsel for the applicant-defendants placed great emphasis in the course of his oral argument on a passage from the judgment of Hunt J in King v. John Fairfax and Sons Ltd (1983) 1 NSWLR 31 at 32-33. That passage is in these terms:

"The plaintiff's original reply was filed at the end of June 1981.  It alleged that the publication had been made with malice by which I assume that the plaintiff intended to allege, as he should, that the defendant's publication had been actuated by malice.  The particulars of malice follow a fairly familiar form.  The first two were in these terms:

(1)The matter complained of is and was false and untrue and was published by the defendant with the knowledge of that falsity and untruth, or alternatively, with reckless indifference as to whether or not it was true.

(2)The matter complained of is and was false and untrue and was published by the defendant without any honest belief in the truth of that matter."

The first of these particulars of malice has attracted criticism for judges for many years.  In NRMA Insurance Ltd v. Flanagan (1982) 1 NSWLR 585 at 603, I suggested that an allegation in that form is entirely unaccompanied by the statement of any facts or matters which give to it the slightest support. I pointed out that the allegation amounted to no more than a conclusion from unspecified facts and matters and that, as such, it did not comply with the requirements of Pt 67, r19(d). Notwithstanding that criticism and, as I say, the criticism of others, allegations such as this have remained in replies filed by plaintiffs in many cases in the Defamation List. Stripped of all its verbosity and tautology, the particular means, so far as it can be relevant to the allegation of malice, simply that the defendant either knew that the matter complained of was false or was recklessly indifferent to its truth or falsity when he published it. Unless the plaintiff is able to establish that particular condition of the defendant's mind, the falsity of the matter complained of is itself completely irrelevant to the issue of malice.

The second of the particulars of malice relied by the plaintiff is in a similar position:  it depends wholly upon the plaintiff being able to establish the particular condition of the defendant's mind alleged.  If he is unable to do so, the allegation of falsity is completely irrelevant."

With respect to the learned judge who made those observations I have real difficulty in understanding what he is saying as a general proposition.  In particular I find it incomprehensible to say that the "falsity of the matter complained of is itself completely irrelevant to the issue of malice".  I would have thought that establishing that the allegation was false, and that the publisher knew it to be false, were possibly critical steps in establishing malice on the part of the publisher.  Indeed, Windeyer J appears to me to say just that in Uren's case at 210 where he says:  "but a reckless indifference to the truth or falsity of statements obviously defamatory may amount to malice.  It seems to me that under the statute it would be open in some cases to a jury to find that such conduct showed that the defendant was "actuated by ill will or by some other improper motive" - that is to say, in substance the position under the statute is not different from that at common law."  Here one of the particulars alleged is that the defendants believed the matter to be untrue or were recklessly indifferent as to its truth or falsity.  If the tribunal of fact came to the conclusion that such was established by the evidence then that could be a material step in the process of reasoning leading to a finding that the publication was "actuated by ill will or some other improper motive".  In that context it is not correct, in my view, to say that the falsity of the matter complained of is completely irrelevant to the issue of malice.  Indeed there are passages in Makim v. John Fairfax and Sons Ltd (1988) A. Def. R. 50,075, particularly at 40, 534-5 which might suggest that Hunt J had retreated from the position he had apparently so forthrightly expressed in King v. John Fairfax and Sons Ltd.
           In any event I have come to the conclusion that the matter is adequately raised by the pleading in the reply here.
           The reply here alleges matters of particularity which, in my opinion clearly put "good faith" and the absence of "fair comment" in issue.  Further, by the reply the respondent-plaintiff clearly places the applicant-defendants on notice that it will rely upon extrinsic evidence of malice.
           I have come to the conclusion that the applicant-defendants' complaints about this reply are without merit.  In the circumstances the application should be dismissed with costs.