Hore-Lacy v Cleary & Anor [2008] VSC 215 (25 June 2008) – Interlocutory fight over fair comment defence

June 26, 2008 |

Defamation litigation is prone to interlocutory stoushes. Statements of Claim are regularly amended with imputations polished and expanded as time goes on. On the defence side there are fights over the statement of claim and pleading the various defences. Given the cap that now applies to Defamation cases these interlocutory stoushes are probably going to make defamation matters even less likely to run. That is a bit of a pity given I like practising in this area. Working with language, arguing what words mean is fascinating.

Dyson Hore Lacy and Phil Cleary are in a grinding piece of litigation. It has been hard fought so far with applications to the Practice Court and onto the Court of Appeal. If this case goes to jury it will be spectacular.  Justice Kaye had to adjudicate an application by the defendants to amend their defence to plead fair comment. Bringing interlocutory applications on the pleadings are more important in defamation actions than most other civil claims.

Kaye J writes well. He wields a Mont Blanc with precision. It is far from lyrical prose but it is very clear. His decision is a very useful analysis on fair comment. 

13 The defendants now seek to plead a defence of fair comment in a different form to the defence which was struck out by the Court of Appeal. The defence is still pleaded as a rolled up plea. The matter of public interest, on which the comment is said to be based, is stated to be “whether James Ramage should have been entitled to rely on a defence of provocation to the charge of wilful murder brought against him and the role played by the legal practitioners who communicated with Ramage shortly before he turned himself into the police”. Particulars are provided to the plea. The first particular sets out the substance of the alleged comment as follows:“(i) The substance of the comment was that the plaintiff, in combination with Stephen Pica, assisted James Ramage to manufacture a defence of provocation and thereby to pervert the course of justice, and in so doing committed a breach of barristers’ ethics and an act of unsatisfactory professional conduct.”

14 In sub-paragraph (ii) of the particulars, the defendants specify the parts of the book on which they rely in support of the comment pleaded by them. Those passages are the three passages relied upon by the plaintiff in support of the imputations relied on by him, together with a passage from pages 74 to 75 of the book, and a further passage from page 241 of the book.

15 In sub-paragraph (iii) of the particulars the defendants set out the facts contained in the book on which they assert that the comment was based. That sub-paragraph states:

“(iii) The comment was based on the following facts which were true in substance and in fact and which were stated in the book, namely:

(A) Ramage killed his wife and buried her in a shallow grave on 21 July 2003 (pages 30 to 33, 39 to 40);

(B) Later the same day, Ramage telephoned the plaintiff and had a conversation with him lasting about one minute and 21 seconds (page 50);

(C) As a result of that conversation, the plaintiff agreed to meet Ramage in the gaming room of the Harp Hotel in Kew (page 50);

(D) Later that evening the plaintiff had a conversation with Ramage in the gaming room at the Harp Hotel in Kew (page 52) in the course of which he telephoned a solicitor, Stephen Pica, before moving to another table (page 52);

(E) Later the same evening Ramage, accompanied by Pica, turned himself into the Police (page 53);

(F) Ramage gave a statement to the Police which formed the foundation of a defence of provocation (pages 60 – 63); and

(G) The plaintiff refused to answer the First Defendant’s questions about what he had discussed with Ramage at the Harp Hotel on 21 July 2003 (pages 74 – 75).”

Kaye J set out the principles to amend.  Normally amending pleadings is not a real problem. But in defamation things are not quite that simple:

23 This is an application by the defendants to amend their pleading. Ordinarily, an amendment to pleadings will be allowed, unless the amendment is futile, or unless the amendment would result in prejudice to the other side which could not be remedied by an order for costs or by some other relief.[7][8] The plaintiff does not resist the application on the basis that he would be prejudiced by the proposed amendment, but on the ground that the amendment would be futile, in the sense that if the plea of fair comment, now sought to be relied on, had appeared in the original pleading, it would be struck out. This action will be tried before a jury. Accordingly, the amendment should only be disallowed, if I were to conclude that a jury, properly instructed, could not reasonably conclude that the defamatory material, complained of by the plaintiff, constituted fair comment on a matter of public interest.

Kaye gives a tidy summary of what a defence of fair comment has to plead.

24 The principles relating to the defence of fair comment are simply stated, but are not so easy of application. Basically, it is a defence to an action for defamation for a defendant to prove that the publication complained of constituted fair comment on a matter of public interest. That defence can be defeated by proof that the defendant was actuated by malice in making the publication. The main components of the defence of fair comment are:

(a) The matter complained of must be comment, as distinct from a statement of fact. In particular, although the matter may consist of or include inferences of fact, it must be recognisable as a comment.

(b) The comment must be based on facts which are true, and which are either stated in the publication, or referred to or identified in it.

(c) The comment must be fair, in the sense that it must express an opinion which any fair minded person could honestly hold on the basis of the proven facts;

(d) The comment must be on a matter of public interest.[9]

25 The plaintiff, in opposing this application, has submitted that the passages of the book, which he alleges are defamatory of him, are not capable of fulfilling any of the above elements of a defence of fair comment.

If anything highlights the artificiality of defamation cases it is trying to draw the narrow distinction between fact and comment.  Much the same as trying to figure out what is comment and what is reportage in today’s newspapers.

Fact or comment

26 The first question is whether a jury could reasonably conclude that the material, alleged by the plaintiff to be defamatory of him, constituted expressions of opinion, as distinct from assertions of fact. In New South Wales v IG Index PLC[10] Nettle JA identified the principles which are relevant to such a question as follows[11]:

“[48] The first point is that a statement may qualify as a comment if it appears to be a deduction, inference, conclusion, criticism, judgment, remark or observation come to by the writer or speaker from facts stated or referred to by him, or in the common knowledge of the person writing or speaking and those to whom the words are addressed, and from which his conclusion may reasonably be inferred.

[49] Secondly, it is necessary to bear in mind that in order to be justifiable as a fair comment, the comment must appear as comment and not be so mixed up with the facts that the reader or listener cannot distinguish between what is report and what is comment. As I have said, the notion of comment includes a statement which may reasonably be inferred to be a comment, but if a defendant merely makes a general reference to a person’s conduct, or mixes up what he believes to be fact and comment, he runs the risk of a jury saying in general to any defamatory statement either that it would reasonably infer it to be a statement of fact and that its truth is not proved, or that it would reasonably infer it to be a comment and cannot form the substratum or basis for further comments.

[50] Thirdly, and for present purposes most importantly, it is for the jury or other tribunal of fact at trial, and not for a judge as upon interlocutory application, to decide whether what has been published is a statement of fact or an expression of opinion. It is only if the comment is reasonably capable of being regarded only as a fact, or only as a comment, that a trial judge may take the question away from the jury, or perhaps strike out a relevant pleading.

[51] Fourthly, the question of whether a statement is one of fact or comment is to be decided having regard to the actual language used and the context in which it appears or is made. As Lord Ackner observed in Telnikoff[12], it is not always easy to draw the distinction between an expression of opinion and an assertion of fact. The very same words may be one or other according to their context. So, for example, a statement that someone has acted dishonestly or corruptly or been guilty of corruption and mismanagement or had his hands in the till may be statements of fact in one context and statements of opinion in another.”

While Nettle’s analysis is useful what he does is essentially set out some very general guide posts.  Most of the issues he raises would keep counsel busy in arcane argument for hours.  Of course that is the problem with defamation.

 27 It is important to note the use of the phrase “if it appears” in the first principle outlined by Nettle JA. In order to qualify as a comment, the defamatory statement must not just be a deduction or inference; it must “appear” to the recipient to be a deduction or inference. In particular, the test is whether the defamatory statement would appear, to the “ordinary reasonable” recipient, to be a statement of opinion, rather than an assertion of fact. Thus, in Channel 7 Adelaide Pty Ltd v Manock[13] Gummow, Hayne and Heydon JJ, stated the test as follows:

“The question of construction or characterisation turns on whether the ordinary, reasonable ‘recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered’ – not ‘an exceptionally subtle’ recipient, or one bringing to the task of ‘interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at’.”[14]

One important issue is that the comment should not be mixed up with the facts.  Comment should stand alone.  That is often very difficult.  Commening upon someone’s behaviour without referring to it is difficult and artificial.  Kaye refers to a range of cases to elaborate.  I have noticed that the difficulty a judge sees in a principle and a point is directly linked to how many cases he or she refers to and liberally quotes.

28 Allied to the first point identified by Nettle JA is the second principle, namely, that in order that the defamatory material be justifiable as fair comment, the comment must not be so mixed up, and intermingled, with the facts relied on by the publisher, that the reader or listener cannot readily distinguish between what is an assertion of fact and what is an expression of opinion by the publisher. In Manock’s case, Gleeson CJ stated that principle as follows:

“So long as a reader (or viewer, or listener) is able to identify a communication as a comment rather than a statement of fact, and is able sufficiently to identify the facts upon which the comment is based, then such a person is aware that all that he or she has read, viewed or heard is someone else’s opinion (or inference, or evaluation, or judgment). The relationship between the two conditions mentioned in the previous sentence is that a statement is more likely to be recognisable as a statement of opinion if the facts on which it is based are identified or identifiable.”[15]

29 That principle has been a recurrent theme in a number of authorities in relation to the defence of fair comment. One of the most clear expositions of it is contained in the judgment of Jordan CJ in Goldsborough v John Fairfax & Sons Limited & Anor[16], where his Honour stated:

“For the defence to succeed, it is essential that the whole of the words in respect of which it is relied on should be comment, and that they should be fair, and that they should be on a matter of public interest. It must be indicated with reasonable clearness by the words themselves, taking them in the context and the circumstances in which they were published, that they purport to be comment and not statements of fact; because statements of fact, however fair, are not protected by this defence. In other words, it must appear that they are opinions stated by the writer or speaker about facts, which are at the same time presented to, or are in fact present to, the minds of the readers or listeners, as things distinct from the opinions, so that it can be seen whether the opinions are such that they can fairly be formed upon the facts.”

30 Similarly, in Clarke v Norton[17] Cussen J stated:

“A writer or speaker can, if he chooses, first state his facts specifically as facts, and then add – ‘these are my deduction from them or my comments on them’, and proceed to state his deductions or comments. If, however, he merely makes a general reference to a person’s conduct, or mixes up what he believes to be fact and comment, he runs the risk of a jury saying in regard to any defamatory statement either that it would reasonably be inferred to be a statement of fact, and that its truth is not proved, or that it would reasonably be inferred to be a comment, and cannot form the substratum or basis for further comments.”[18]

Kaye wraps up his analysis by stating:

31 In considering the application of the first two principles stated by Nettle JA in New South Wales v IG Index PLC[19] (above), it is relevant to bear in mind the rationale for the distinction between statements of fact and comments in the law of defamation. Where a defendant publishes a defamatory statement of fact, it may only be justified if the defendant establishes that those facts are true. On the other hand, where a defendant, on facts truly stated or identified, makes a defamatory comment about a plaintiff, the comment may be justified as “fair”, provided that it is a comment which a fair minded person might honestly hold. Thus, the law of defamation permits a considerable latitude to those who express their opinion, honestly, on facts truly stated or identified by them. The position is otherwise for those who choose to make defamatory assertions of fact about an individual. The rationale for the distinction, and for the greater latitude shown to those who make comments, is that where the speaker or writer truly states facts, and then expresses an opinion on those facts, the readers or listeners can properly judge for themselves the validity of the opinion. By contrast, where a defamatory allegation of fact is made, the reader or listener of it is presented with that fact at face value, and has no means of judging it for themselves.

..And then he goes on to cite more authorities at length.  

32 That rationale was expressed by Fletcher Moulton LJ in Hunt v Star Newspaper Co Limited[20], in a passage referred to by Gummow, Hayne and Heydon JJ in their joint judgment in Manock[21]. Fletcher Moulton LJ stated:

“If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based. But if fact and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer, though not necessarily set out by him. In the one case the insufficiency of the facts to support the inference will lead fair-minded men to reject the inference. In the other case it merely points to the existence of extrinsic facts which the writer considers to warrant the language he uses … Any matter therefore which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment.”[22]

33 In determining whether a jury might reasonably conclude that the passages in the book, relied on by the plaintiff, are expressions of opinion, rather than allegations of fact, two further points need to be borne in mind. First, much depends upon the precise language used, and the context in which the allegedly defamatory statement appears. That point is made clear in the decision of the Court of Appeal in New South Wales v IG Index PLC, to which I have referred. In that case, the plaintiffs carried on a business of spread betting in New South Wales. They sued the defendant in respect of allegedly defamatory statements made by a spokesman for the New South Wales Gaming Minister to a journalist in the employment of the Australian Newspaper. In those remarks the spokesman alleged that the plaintiff had “flouted” NSW gaming laws by operating in that State, and had illegally advertised its services in the State. He concluded by stating “We have no doubt it is illegal and we have told ASIC”. The plaintiffs applied to have defences of fair comment, relied on by the defendant, struck out on the basis that they were bad in law. The Court of Appeal upheld the defendant’s appeal, and held that the defence as a fair comment should not be struck out. In essence, Nettle JA (who delivered the leading judgment on this issue) held that, bearing in mind the language used by the spokesman, and the context in which the words were spoken, it was reasonably open for a jury to conclude that the ordinary reasonable reader might understand the words spoken by the spokesman to be expressions of opinion, as distinct from statements of fact.[23]

34 That decision should be contrasted with the decision of the High Court in Channel 7 Adelaide Pty Ltd v Manock.[24] In that case the plaintiff was a forensic pathologist who had conducted the post mortem on the deceased body of a young woman who was alleged to have been murdered by her fiancé, one Keogh. At his trial in 1995 the plaintiff gave evidence for the prosecution, and Keogh was convicted of murder. In March 2004 the defendant television station broadcast a “promotion” for its “Today Tonight” show, in which the presenter stated:

“The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one Court to the next.”

36 The second point which is relevant for this case is contained in the joint judgment of Gummow, Hayne and Heydon JJ in Manock’s case, namely, that it is more difficult for a viewer of television to distinguish fact and comment than it is for a person reading printed material. Their Honours[25] quoted, with approval, the dictum of Blackburn CJ in Comalco Ltd v Australian Broadcasting Corporation[26]:

“It is obvious that a television viewer receives a succession of spoken words and visual images, which he is unable to have repeated for the purpose of reflection or clarification; whereas a reader of printed material normally has it all before him at will, and has unlimited facilities for re-reading. In my opinion it is important in the case before me, when considering whether there is material which can be perceived to be comment, as distinct from fact, but based upon stated fact, to remember that the viewer sees and hears the material simultaneously, and only once.”

I am always fascinated how the law creates this mythical creature known as the ordinary reasonable reader.  Personally I think there are 4 – 6 types of ordinary resaonable readers; gen Y, gen X (my lot), baby boomers, those who are wedded to their computers and those who only read print, those who can’t abide A current Affair and those who stay up for Lateline.  It would be nice to do some research or use whatever research that has been done to apply a more sophisticated test.  But that is a long way off and Kaye described the quaintness of the odinary reasonable reader thus:

 41 The “ordinary reasonable” reader or listener, referred to in Manock’s case, is a hypothetical figure well known to the law of defamation. It is by reference to the same person that the law determines the meanings of words which are alleged to be defamatory. In assuming the viewpoint of such a person, the material complained of by the plaintiff must be construed, not as a lawyer, but as a layman.[28] The ordinary person is someone who is not “avid for scandal”, and who is neither unusually suspicious nor unusually naïve.[29] Such a person does engage in a degree of loose thinking, and reads between the lines[30].

Applying the law Kaye stated that for fair comment to succeed the comments must be based on true facts.  And it was here where the defendants fell down badly.  He said:
Whether facts truly stated

61 It is trite law that, in order that a defence of fair comment succeed, the defamatory comment must be based on facts which are true or which are protected by privilege.[34] That principle is strictly applied, so that if the defamatory comment is based on any fact which is not truly stated, the defence of fair comment must fail. Thus, in Digby v Financial News Ltd[35], Lord Collins MR stated:

“Comment, in order to be fair, must be based upon facts, and if a defendant cannot show that his comments contain no misstatements of fact, he cannot prove a defence of fair comment. The usual way to begin such a plea is by asserting that the facts on which the comment is based are true, that is, that the defendant has made no misstatements in formulating the materials upon which he has commented. If the defendant makes a mistake of any of the facts upon which he comments, it at once negatives the possibility of his comment being fair. It is therefore a necessary part of a plea of fair comment to show that there has been no misstatement of facts in the statement of the materials upon which the comment was based.”

62 Similarly, in Kemsley v Foot[36] Lord Porter stated:

“In a case where the facts are fully set out in the alleged libel, each fact must be justified and if a defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence.”

In Herald & Weekly Times Limited v Popovic[37], Gillard AJA referred to that statement of the law as identifying “the guillotine effect of untrue facts”.

As to whether the comment was fair Kaye said:

Whether alleged comment fair

68 I turn first to the question as to whether a jury might conclude that the alleged comment was “fair”. In this context, the test of fairness was appropriately described, 120 years ago, by Lord Esher MR in Merivale v Carson[38], in the following terms:

“The question which the jury must consider is this – would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said?”[39]

69 The question whether a comment is fair is essentially an issue for the jury. If the alleged comment in this case were based on the seven facts identified in the particulars to the amendment sought by the defendants, that comment would seem to involve a substantial “quantum leap” of logic. Nonetheless, I do not consider that it would not be open to a jury to reasonably conclude that the comment was fair, in the sense defined above. Taking into account the broad parameters of the concept of fairness in that context, it would be a matter for the jury to determine, on all the facts, whether that comment was “fair”.

Kaye analyses both the narrow and the broad view of what constitutes public interest.  And it is not what interests the public.

Public interest

72 In the course of argument, reference was made to what has been described as the “wider” and the “narrower” definitions of public interest.[41] The former is contained in the often cited passage in the judgment of Lord Denning MR in London Artists Ltd v Littler[42], where his Lordship stated:

“There is no definition in the books as to what is a matter of public interest. All we are given is a list of examples, coupled with the statement that it is for the judge and not for the jury. I would not myself confine it within narrow limits. Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or to others; then it is a matter of public interest on which everyone is entitled to make fair comment.”

73 The “narrower view” is contained in the joint judgment of Dawson, McHugh and Gummow JJ in Bellino v Australian Broadcasting Corporation[43], in which their Honours stated that at common law “a subject of public interest” was:

“… understood in the law of defamation to refer to the conduct of a person engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion.”

74 Notwithstanding that description of “public interest”, the Court, in Bellino, accepted that the discussion of the conduct of any person participating in the administration of justice or public affairs would be a matter of public interest.[44] In particular, their Honours noted:

“… under the common law any member of the public could comment on the conduct of the lawyers participating in a criminal or civil trial, the conduct of a judge or magistrate in dismissing or upholding a claim or the evidence of witnesses. Similarly, when the common law courts spoke of political matters or the administration of public affairs or institutions as subjects of public interest for the purposes of the law of fair comment, they were speaking of the conduct of individuals participating in those activities as constituting subjects of public interest.”[45]

All in all it was a bad day at the office for the defendants.  Without pleading a fair comment defence that they want they have some real problems.  It will be interesting to see whether this decision will go on appeal.  c.

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