Peter A Clarke

It was a good day at the office for the plaintiff’s legal team in an interlocutory stoush over the arcania that is a “fair comment defence.”  In Buckley v Herald & Weekly Times the plaintiff’s succeeded in striking out a defence of fair comment.  The plaintiff’s request for further and better particulars was also largely successful.  The defendant’s application for discovery was an honourable draw with the defendant being more successful than not. As usual Kaye J writes with a crispness that one hopes will take off and sweep the bench.

Fair comment

It is a long decision for a practice court application however that is to be expected.  Much of it consists of a recounting of the facts and reprinting the articles in question. The key issue is whether the defence of fair comment relate to imputations of fact or are an opinion.  The plaintiff says the fair comment defence relates to specific facts ( pars [15] – [17]) while the defendant says the fair comment imputations were opinions which were inferred or deduced from facts within the article (par [20]).  Hair splitting for the average person, a critical issue for a defendant. Here the defendant struck out.

From a practitioners perspective the interest lies in paragraphs [22] – [27], the relevant precedents and the distinction between fact and opinion [28].

At paras [24] Kaye J describes the reader who is taken to have read the publication.  He is, to use Kaye’s words:

…The ordinary reasonable reader or listener is described by the law as someone who is not “avid for scandal”, and who is neither “unusually suspicious nor unusually naïve”.Such a person does engage in a degree of loose thinking, and is understood to read between the lines.”

The most relevant paragraph is [28] where Kaye stated:

28 Thus, in determining whether a publication is defamatory, the court takes into account that the hypothetical recipient of it – the ordinary reasonable reader or listener – may undergo a process of implication or inference. That recipient of the publication is not confined to an understanding of the words conveyed in their literal sense; rather, as the authorities to which I have referred make plain, the law takes into account that the recipient of the material may indulge in deduction, inference or implication. However, to postulate that an imputation may derive from a publication by a process of implication or inference by the reader or listener of the publication, is not to say that the imputations, thus derived, were understood by the ordinary reasonable reader or listener as the comment or opinion of the publisher. That is, there is an important distinction between inferences or implications by the hypothetical ordinary reasonable reader of the publication complained of, on the one hand, and, on the other hand, an understanding by the ordinary reasonable reader of the publication that imputations, pleaded by a plaintiff, were conveyed to that reader as the opinion or comment of the writer of the articles. That distinction is particularly important, bearing in mind the principle, which I have earlier stated, that to qualify as comment, the publication must clearly identify the allegation, complained of by the plaintiff, as the deduction, opinion or conclusion of the writer. In my view, the submissions on behalf of the defendants largely ignore that distinction, and thus confuse and conflate the inferential processes undergone by the ordinary reasonable reader, with the proposition that the imputations, pleaded by the plaintiffs, constitute opinions or comments understood to be conveyed by the writer of the articles

An ordinary reader may infer or deduct a meaning from words in an article.  That inference or deduction may not be based on opinion or comment.  It can relate to the facts.  To properly plead fair comment the defendants should plead the commentary or opinion.