Networked Knowledge - Law Reports

Clarke v Channel 9 South Australia Pty Ltd & Ors [2006] SADC 87

[This version of the judgment has been edited by Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

Defamation Homepage
Article on Australian miscarriage of justice cases
Article on UK miscarriage of justice cases
Article on USA miscarriage of justice cases

See the Channel 7 program 24 November 2005

See the Channel 7 program 30 November 2005

Judge Lovell - 1 August 2006

Issues

This appeal raises two questions. Is the alternative meaning pleaded by the Defendants a mere variation or nuance of that pleaded by the Plaintiff or does it have a substantially different meaning? In relation to the defence of fair comment are the Defendants entitled to rely on and plead facts not contained within the publication and not notorious or easily ascertainable, to support the plea of fair comment?

Pleadings and Background

The subject matter of the argument relates to a television broadcast by the Defendants on Friday 6 August 1999. In relation to that broadcast the plaintiff pleaded as follows:

12. The Plaintiff refers to the following statements by the Defendant of and concerning and defamatory of himself:

12.1. Pringle: “I think because you’re so busy looking for the dream, happily ever after, that you actually don’t realise you’re actually living in a nightmare.”

12.2. Reporter: “The former Labor staffer claimed in court that Ralph Clarke repeatedly hit her, and verbally abused her, and said that her problem was that she’d never been broken in.”

12.3. Pringle: “You’re in a situation where you can, you can love the man but hate the act…..”

12.4. Reporter: There were denials in court, but a recorded police statement, that’s only now come to light, shows Mr Clarke admitted hitting her on at least one occasion.

12.5. Reporter: “Mr Clarke also admitted grabbing and pushing her over the sink, again in an effort to calm her down, but this admission and medical reports detailing injuries to Edith never made it to court” …… “All the charges were dropped when Edith Pringle admitted to the court she’d spent the night with the man she accused of assaulting her just weeks before she was to bring him to trial. Ms Pringle says she wasn’t making a mockery of the system, simply following a pattern of familiar to many battered women.

12.6. Reporter: “Ralph Clarke, while never acquitted, saw the dismissal of the trial as sweet justice and he paid thanks to his supporters.”  Clarke: “the most important of my supporters. I thank my daughter Catherine whose love in support of her father have allowed me to live through this and clear my name. And that is all I ever intended to say about this whole sorry, sordid tale.” Reporter: The effects of that speech and other remarks by Labor leader Mike Rann shattered Edith.

12.7. Pringle: “I actually I just didn’t want to wake up the next day. I just took an overdose; I ended up in Flinders Hospital in ICU”. Reporter: “You actually made an attempt on your life?”  Pringle: “Yes”.

12.8. Derryn Hinch: “this just isn’t fair. This isn’t right. This isn’t justice being done.”

13. The said words in their natural and ordinary meaning meant and were understood to mean:

13.1. Clarke should have been convicted of domestic violence in the case brought in the District Court;

13.2. Clarke subjected Pringle to repeat criminal assaults during their relationship;

13.3. Clarke was responsible for Pringle making an attempt on her life, that is overdosing in ending up in the Flinders Medical Centre Intensive Care Unit by his insensitively and wrongly claiming to have cleared his name or obtained justice.

In response the Defendants pleaded that the words complained of in their natural and ordinary meaning meant and were understood to mean;

4.1 that the plaintiff had hit Edith Pringle in anger during the course of their domestic relationship and admitted doing so;

4.2 that the plaintiff had been involved in a relationship with Edith Pringle in the course of which he had repeatedly hit her and had verbally abused her and say further that the words so understood were true in substance and in fact.

4.3 The defendant says that the words complained of are justified.

PARTICULARS OF JUSTIFICATION

4.3.1 The plaintiff and Edith Pringle carried on a de facto relationship for approximately 18 months.

4.3.2 In 1997 the plaintiff and Edith Pringle travelled to Broken Hill together.

4.3.3 In 1997, whilst in a motel room at Broken Hill, the plaintiff pushed Edith Pringle on two occasions.

4.3.4 In 1997, whilst at a motel room in Broken Hill, the plaintiff took hold of Edith Pringle and physically removed her from the motel room.

4.3.5 In 1997 the plaintiff telephoned Amanda Blight and said words to the effect that he would kill Edith Pringle.

4.3.6 In October 1997 the plaintiff and Edith Pringle commenced living at 71 Redin Street, Prospect.

4.3.7 On 12 November, 1997, the plaintiff pushed Edith Pringle to the ground on two occasions.

4.3.8 On 12 November, 1997 the plaintiff put his hand under Edith Pringle’s chin and pushed her.

4.3.9 On 12 November, 1997, the plaintiff pushed Edith Pringle causing her to fall to the ground and strike the back of her head on the ground.

4.3.10 On 12 November, 1997, whilst Edith Pringle was lying on the ground the plaintiff hit her to the head with his open hand.

4.3.11 On 12 November, 1997, when Edith Pringle fell to the ground on the second occasion, Edith Pringle struck the right side of her eye and her forehead on the ground.

4.3.12 On 12 November, 1997, whilst Edith Pringle was lying on the ground, the plaintiff kicked her legs three or four times.

4.3.13 On 12 November, 1997 the plaintiff tried to physically restrain Edith Pringle as she left the house at 71 Redin Street, Prospect.

4.3.14 On 12 November, 1997 Edith Pringle presented to the Royal Adelaide Hospital with injuries as follows – right elbow graze, graze to right knee, left forearm bruising, bruise on left lower leg.

4.3.15 On 12 November, 1997 Edith Pringle required pain relief in consequence of injuries inflicted by the plaintiff.

4.3.16 On 13 May, 1998 the plaintiff grabbed Edith Pringle by the hair.

4.3.17 On 13 May, 1998 the plaintiff grabbed Edith Pringle by the hair on three occasions.

4.3.18 On 13 May, 1998 the plaintiff grabbed Edith Pringle by both of her arms, and forcibly held her over a kitchen bench.

4.3.19 On 13 May, 1998 the plaintiff pushed Edith Pringle onto a bed.

4.3.20 On 13 May, 1998 the plaintiff struck Edith Pringle on her buttock several times.

4.3.21 The plaintiff during the course of the relationship with Edith Pringle said on numerous occasions words such as:

“Slut / harlot / bitch”

“You’re using me as a meal ticket.”

“You are one big cost it would be cheaper for me to go to a whore house”

“If you don’t like it you can get fucked and you can fuck off.”

“The problem with you is you have not been broken in yet.”

“If you died tomorrow no-one would care, you’re a useless stupid slut.”

“My father was right about you.”

“I should break your jaw.”

4.3.22 The plaintiff gave a statement to police on 13 May, 1998 admitting having hit Edith Pringle and having abused her.

Legal Principles-Justification

Where a publication makes a number of specific allegations against a plaintiff he or she is able to elect to complain only of one or some of those allegations. The plaintiff is permitted to make such a limited complaint provided the specific allegation complained of is separate and distinct from the other allegations in the publication.

If the imputation selected is made out, the plaintiff is entitled to a remedy subject to the defendant establishing a matter of defence. If the imputation is not made out, either because it does not arise at all, or because the imputation is more general than that alleged by the plaintiff, and has been inaccurately narrowed by the plaintiff, then the plaintiff will fail.

The plaintiff can rely on meanings he has pleaded and meanings which are less injurious and not of a substantially different kind. The plaintiff may rely on unpleaded meanings which are simply a variant of the meanings pleaded, or involve no more than a different nuance or shade of meaning.

However such words are not viewed in isolation. All relevant surrounding matters must be taken into account in order to determine the meaning of the words complained of. In the context of newspaper articles the ordinary reasonable person is taken to have read the whole article not just the headlines or the portions complained of. Likewise ordinary reasonable television viewers are taken to have seen and / or heard the whole of the relevant broadcast.

At common law, it is a defence to an action for defamation for the defendant to prove that the matter published was true.  In order to make out the defence, the defendant must prove that the allegedly defamatory matter was in substance true.

Until recently the Polly Peck defence was available in South Australia.

Under Polly Peck (supra), a defendant was entitled to refer to the whole publication of which the plaintiff complained. If the publication contained two or more “separate and distinct defamatory statements”, the plaintiff could sue on one or some of them. The defendant was not entitled to assert the truth of the others by way of justification. But, if separate defamatory allegations had a common sting, they were not to be regarded as separate and distinct allegations. The defendant was then entitled to plead the truth of the common sting, and that would be treated as proof of the truth of the statement or imputation of which the plaintiff complains. In Advertiser-News Weekend Publishing Company Ltd v Manock (supra) the Full Court stated that as a matter of principle, as a matter of fairness and having regard to the public interest and the efficient conduct of a trial the law as stated in Polly Peck should not be applied in South Australia.

Thus the principle I should apply is that the defendant may only plead and seek to justify such alternative meanings as may be relied on by the plaintiff to obtain a judgment even though he has not pleaded them. A plaintiff may rely on un-pleaded meanings which are less injurious or represent merely a variant or a different nuance from the meanings pleaded. The plaintiff may not rely on un-pleaded meanings which are substantially different.

Arguments

Mr Harms submits that the Defendants have pleaded in paragraphs 4.1 and 4.2 meanings, which are not merely a variant, or a different nuance from the meanings pleaded by the Plaintiff in paragraph 13 of the Amended Statement of Claim. The meaning pleaded by the Defendants is substantially different and if the Defendants’ meanings were in fact found by the Court to be correct, the Plaintiff’s claim would fail.

Mr Swan for the Defendants submitted that the pleas found in paragraph 4 are less injurious and represent merely a variant or nuance that the Plaintiff could succeed on at trial without pleading them specifically.

In relation to 13.1 the Plaintiff submits that the innuendo pleaded refers specifically to criminal assault charges and in particular to the three charges of assault on his de facto that he faced in the District Court. I note that the meaning pleaded refers to the term “domestic violence” rather than assault. I agree with Mr Harms that the terms “domestic violence” and “assault”, in the context of the telecast as seen and heard by the ordinary and reasonable viewer, are interchangeable expressions. In other contexts that may not be so. In relation to paragraph 13.2 of the Amended Statement of Claim “repeat criminal assaults” are specifically referred to without there being a specific occasion mentioned. Thus submits the Plaintiff, the innuendos pleaded relate specifically to criminal assaults.

In response the Defendants in paragraph 4 of the Amended Defence plead the alternative meaning of hitting in anger during the course of the domestic relationship (4.1) and repeated hitting and verbal abuse during the course of the domestic relationship (4.2). There is no suggestion that either the hitting or the verbal abuse would amount to criminal conduct. Thus the meanings contended for by the Defendants could be justified by proof of a hitting in anger, and / or a hitting and verbal abuse within the domestic relationship, unrelated to any criminal act. For example one could postulate, within a domestic setting, a blow (even in anger) that would be in self-defence and not amount to criminal conduct. A person could be angry but still acting in self defence.

In one sense, physical contact less than criminal conduct is a less injurious matter. However the meanings pleaded by the Defendants have the effect of widening the areas of inquiry to include words spoken as abuse and to physical contact, albeit potentially lawfully justified, within the domestic relationship between the Plaintiff and Ms Pringle. The meanings pleaded by the Defendants remove the aspect of criminality from the innuendos that the Plaintiff seeks to establish.

In my opinion they are not just matters of mere variance or nuance. I respectfully disagree with the Learned Master on this point. In my view they are distinctly different matters on which the Plaintiff could not succeed at trial without pleading them. It follows that the Defendants ought not to be allowed to plead the alternative meanings.

Legal Principles-Fair Comment

In this matter the Defendants have pleaded the matter of fair comment as follows:-

5. The defendants say that to the extent that the matter complained of is found to have been published as alleged, the matter complained of comprised fair comment upon a matter of public interest.

PARTICULARS OF PUBLIC INTEREST

5.1 A communication between the publisher and the audience in respect of the administration of justice and the conduct of an elected Member of Parliament and the way in which the law treats allegations of domestic violence.

5.2 A discussion of government and political matters, namely, the conduct of an elected Member of Parliament and his de facto and the administration of justice.

6. That portion of the subject broadcast set out and contained in the Schedule 1 hereto comprised Statements of Facts which are true in substance and in fact and the balance of the broadcast comprised comment.

FACTS AND MATTERS RELIED ON IN SUPPORT OF THE TRUTH OF STATEMENTS OF FACT AND PUBLIC INTEREST

6.1 The plaintiff was at all material times the member of the seat of Ross Smith in the House of Assembly in the South Australian Parliament;

6.2 The plaintiff had been a prominent member of the Labour Party in South Australia;

6.3 In 1998 and 1999 there had been extensive publicity of charges brought against the plaintiff for assault of Edith Pringle in the course of a domestic relationship;

6.4 The plaintiff was charged with three counts of assault on his de facto Edith Pringle;

6.5 The charges against the plaintiff were dismissed;

6.6 In August 1999 Edith Pringle spoke to the defendant as to her relationship with the plaintiff;

6.7 Edith Pringle had given evidence at the trial of the plaintiff for assault, that the plaintiff had repeatedly hit her and verbally abused her and said that her problem was that she had never been broken in;

6.8 The plaintiff had pleaded not guilty to the charges of assault against him;

6.9 The plaintiff had provided a statement to the Holden Hill Police Station in May 1998 making admissions of conduct referred to in the publication;

6.10 The charges against the plaintiff were not proceeded with after Edith Pringle admitted that she had spent the night with the plaintiff shortly before the trial of the plaintiff;

6.11 Ms Pringle said she was not making a mockery of the system, simply following a pattern familiar to many battered women;

6.12 The plaintiff saw the dismissal of the charges against him as sweet justice and paid thanks to his supporters;

6.13 Edith Pringle attempted suicide after the charges were dismissed and after the leader of the Labour Party, Mike Rann, made a statement to Parliament;

6.14 Following her attempted suicide Edith Pringle was admitted to Flinders Medical Centre and was placed in intensive care;

6.15 At the time Edith Pringle was in intensive care in the Flinders Medical Centre. The Advertiser Newspaper reported she was in hiding;

6.16 Debra McCulloch asked the library of the Legal Services Commission to research the successful prosecutions of domestic violence in South Australia since 1991, and five successful prosecutions of Aboriginal men were disclosed and no successful prosecution of non-Aboriginal men were disclosed;

6.17 The plaintiff said that he drew the line at the use of private matters, the subject of legal action before the Courts, to assassinate his character, impugn his motives and to attack his leader and said that those who indulge in that type of behaviour will reap what they sow;

6.18 Prior to the publication the plaintiff was invited to give any comment he wished to make and he declined.

6.19 The defendants repeat paragraph 4.3 hereof.

At common law, it is a good defence to an action for defamation to prove that the matter complained of constituted fair comment on a matter of public interest. The ingredients of the defence are:-

1. the matter in question must be a comment;

2. the comment must be on a matter of public interest; and

3. the comment must be fair.

In order to be fair, a comment must satisfy the following criteria:-

a) the factual matters on which the comment is based must be true or published under privilege;

b) the opinion expressed must be one that a fair minded person could honestly hold on the basis of the stated or indicated facts; and

c) the comment must not have been actuated or distorted by malice.

Gillooly (1st ed) states that in relation to the defence of fair comment the general principle is that the facts upon which the defamatory comment is based must be expressly set out either in the matter complained of or in matter adjacent thereto. However, there are two situations in which that does not necessarily apply where it is enough to merely indicate the relevant facts without actually setting them out:-

a) First where the facts are notorious, ie so well known throughout the community that the indication given is sufficient to bring them to the minds of ordinary reasonable publishee’s. The factual substratum for the comment may be explicitly referred to in the matter complained of or implied from the nature of the comment and the circumstances in which it is made.

b) Secondly, where the factual basis for the comment comprises matter that has been submitted to the public for its consideration, eg a published literary work, a theatrical performance or a radio or television program. A critic reviewing such an offering need not set out its full text or even extracts there from or a summary thereof in order to avail himself of the defence of fair comment.

The Full Court of South Australia considered recently the question of fair comment in the case of C v L & Ors.  In relation to element number one relating to “comment” Besanko J (with whom the rest of the Court agreed) stated as follows:

The offending words must constitute a comment and not a statement of fact. In determining the question whether a statement is a comment or a statement of fact, the context in which the statement appears is important. A statement may be a comment where the facts upon which it is based are set out in the publication or are notorious. In another context, where the facts upon which the statement is based are not set out or are not notorious, the statement may be construed as implying assertions of fact and therefore be construed as a statement of fact.

In Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 King CJ said (at 192, case citations omitted):

A statement can be regarded as comment as distinct from allegation of fact only if the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts. To amount to comment there must be “a sufficient substratum of fact stated or indicated in the words which are the subject matter of the action”: Kemsley v Foot, per Lord Porter at p. 356. Where the facts upon which the comment is made are in the public arena and are well known or easily ascertainable, it is not necessary that those facts be stated, but is sufficient that they be clearly indicated. Such clearly indicated public facts “are open to comment on the ground that the public have at least the opportunity of ascertaining for themselves the subject matter upon which the comment is founded”: Kemsley v Foot, per Lord Porter at p. 356. But if the facts are stated in the defamatory publication, they must be stated correctly: Kemsley v Foot, per Lord Oaksey at p.361.

With respect it appears that the comments of Besanko J are consistent with the principles as stated by Gillooly.

Arguments

Mr Swan, for the Defendants, suggested that those propositions did not go far enough in relation to this aspect of fair comment. Mr Swan argued that in relation to this aspect of the defence of fair comment one had to distinguish between identifying the subject matter or substratum of fact of the comment from those facts that would justify the comment. In other words it is the subject matter or substratum of fact that must be indicated or notorious, not the detailed facts that support the comment.  In support he relied on the judgement of McHugh J in Pervan v The North Queensland Newspaper Company Ltd & Anor.

That case dealt with s 377 of the Criminal Code of Queensland. Mr Swan pointed out that the only judge to deal with the question of the common law position was Justice McHugh where he dealt with the issue of whether a defamatory comment may be based on facts which are not published in the article.

His Honour stated at page 340:

This is often the case where a play or sporting spectacle is being reviewed, but it is certainly not limited to plays or spectacles. To raise the defence of fair comment in this class of case, it is sufficient that either expressly or by implication the defendant has identified the subject matter of the comment. The defence is available even though the publication does not state or indicate the facts which form the basis of the comment. As long as the subject matter of the comment is identified, the defendant is entitled to the benefit of the defence of fair comment if he or she is able to prove one or more facts which will justify the comment. The difference between identifying the subject matter or substratum of fact of the comment and the facts which justify the comment is vital. The comment must indicate the subject matter or substratum of fact of the comment, but the defence does not fail because the publication does not indicate the individual facts which are the basis of the comment. It is the “substratum” of fact not the individual facts which must be identified. If a critic states that a professional footballer played badly and the jury holds that the statement is comment, the critic is entitled to rely on any fact which will support that comment even though the fact is not stated in the article or notorious and no reader saw the game. (Footnotes omitted)

Justice McHugh then referred to two passages in the speech of Lord Porter in the case of Kemsley v Foot.

Lord Porter stated (at page 357):

[T]he inquiry ceases to be – Can the defendant point to definite assertions of fact in the alleged libel upon which the comment is made? and becomes – Is there subject matter indicated with sufficient clarity to justify comment being made? and was the comment actually made such as an honest, though prejudiced, man might make?

In the second passage Lord Porter stated (at pages 357 & 358):

In a case where the facts are fully set out in the alleged libel, each fact must be justified and if the defendant fails to justify one, even if it be comparatively unimportant, he fails in his defence. Does the same principle apply where the facts alleged are found not in the alleged libel but in particulars delivered in the course of the action? In my opinion, it does not. Where the facts are set out in the alleged libel, those to whom it is published can read them and may regard them as facts derogatory to the plaintiff; but where, as here, they are contained only in particulars and are not published to the world at large, they are not the subject matter of the comment but facts alleged to justify that comment.

In the present case, for instance, the substratum of fact upon which comment is based is that Lord Kemsley is the active proprietor of and responsible for the Kemsley Press. The criticism is that that press is a low one. As I hold, any facts sufficient to justify that statement would entitle the defendants to succeed in a plea of fair comment. Twenty facts might be given in the particulars and only one justified, yet if that one fact were sufficient to support the comment so as to make it fair, a failure to prove the other nineteen would not of necessity defeat the defendants' plea.

In Pervan (supra) Justice McHugh further stated (at page 341):

Fair comment in the Kemsley situation is very different from what may be called the conventional case of fair comment. In the conventional case, the basis of the comment appears in the publication. The reader is able to judge whether the facts justify the comment. Once the defendant proves the facts which are the basis of the comment, that person is entitled to the benefit of the defence unless the opinion expressed by the defendant was not honestly held. But in a situation such as that in Kemsley, the reader does not know what facts were the basis of the comment. Unless litigation ensues, the reader will never know what particular facts the defendant had in mind. Moreover, as the second passage from the speech of Lord Porter makes plain, the defence may succeed even though some or most of the “facts” which the defendant had in mind were untrue.

If the facts forming the basis of the comment always had to be drawn to the reader's attention, effective comment on many subjects would be frustrated. No doubt, it is for this reason that the common law provides for a defence of fair comment if the subject matter or “substratum of fact” of the comment is sufficiently indicated without requiring that the particular facts justifying the comment be set out or indicated. The plaintiff's protection is found in the rule that the defence will fail unless the defendant proves the truth of sufficient facts to justify the comment.

Mr Swan relied on these passages to support the contention that a defendant can plead facts not mentioned in the publication to support the factual basis underpinning the comment. Indeed McHugh J makes his position plain at page 343 where he states:

This was in accord with what his Honour had said in the earlier case of Rigby v Associated Newspapers Ltd (1966) 68 SR (NSW) 414, at p 425:

“It is true that at common law the defence of fair comment requires that the comment be upon facts truly stated, or notorious to the writer and those persons to whom the comment is published.  But in my opinion it would be contrary to the tenor of s. 17 to impose such a requirement upon it. In so far as s. 17 concerns itself with the truth of defamatory matter it does so under its requirement of good faith. And what is there required is not that the defamatory matter shall be in fact true but that it shall not be believed to be untrue. It appears to me that that is the proper approach to the matter of fair comment under s. 17 – not that it must necessarily be comment upon facts which are true, but that it must be comment upon facts which at least are not believed to be untrue and whose statement as facts is therefore protected, subject to other requirements of ‘good faith’, by the section.”

Three comments should be made on this passage. First, the reference to the requirement that at common law the comment must be upon “facts truly stated, or notorious to the writer and those persons to whom the comment is published” is misleading. It suggests that, if the facts which justify the comment are not truly stated, they must be notorious to the reader. It is true that such a suggestion is sometimes made.  But it is erroneous. If it was the law, no comment could be made on the public performance of a singer, actor or sports person without setting out the facts which justify the comment except in those cases where the facts of the performance were notorious. As the speeches of Lords Porter and Oaksey in Kemsley make clear, it is the subject matter or substratum of fact which must be indicated or notorious, not the detailed facts which will support the comment.  It is difficult to resist the conclusion that Sugerman J.A. thought that s. 17(h) could apply to any defamatory comment, whatever its basis, because the facts which justify the comment must be in the publication or notorious or indicated by the publication. If his Honour had recognized that the facts which justify the comment need not be in the publication or notorious or sufficiently indicated, I doubt that he would have reached the conclusion which he did.

In my view however, it is far from clear that the majority agreed with the propositions stated by Mc Hugh J. Indeed at page 324 the majority supported the very statement from Sugerman JA in Rigby v Associated Newspapers Ltd that McHugh J criticised. And at page 327 the majority went on to say:

It would be a curious construction to attribute to s. 377(8) that the excuse which that sub-section confers on the publication of defamatory matter is lost if that matter consists of statements of fact and fair comment thereon and the statements of fact, though published in good faith, turn out to be untrue. But the facts may not be stated in the defamatory publication. Nevertheless, the excuse which the sub-section affords to the publication of a defamatory fair comment is not lost by the absence of a statement of the facts on which the comment is based provided the jury is satisfied that the facts on which the comment is based are sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded (Kemsley v Foot). (underlining here by Lovell J).

True it is that the majority were considering the question of the interpretation of s 377(8) of the Criminal Code (Q) when discussing the principles. However I do not think it can be confidently asserted that the majority would agree with McHugh J’s interpretation of this aspect of the defence of “fair comment”.

As mentioned earlier, in South Australia the Full Court in C v L & Ors (supra) followed the earlier decision of Pryke v Advertiser Newspapers Ltd.  Those two decisions stand for the proposition that a statement can be regarded as comment as distinct from allegation of fact only if the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is clear it is comment on those facts. Where the facts upon which the comment is made are in the public arena and are well known or easily ascertainable, it is not necessary that those facts be stated, but is sufficient that they be clearly indicated.

I agree with Mr Swan that McHugh J in Pervan’s (supra) case disagrees with that as being a complete statement of the law.  However it is far from clear whether the majority in Pervan (supra) agreed with McHugh J’s view. In the circumstances I am of the view that I should follow the law as laid down in C v L & Ors (supra).

I note that the pleading of paragraph 6, in the introduction itself, would not support the particular 6.19 as it is not asserted by the Defendants that any of the matters raised by 6.19 are contained in the publication itself. However this could be remedied by a simple amendment if the thrust of Mr Swan’s argument is correct.

It was not argued by Mr Swan, nor could it have been, that the facts now pleaded in paragraph 6.19 are “notorious or readily obtainable”.

The issue that falls for consideration is whether a defendant, who relies on facts contained within the publication to support the comments is also able to plead and then rely on other facts, those facts not being notorious and certainly not available to the watcher of the telecast to support the comment as being accurate and therefore fair.

Consistent with the South Australian authorities, in my view the answer is no. With respect, I am unable to agree with the Learned Master’s view in relation to this matter.

It therefore follows that the Defendants ought not to be able to plead the matters relied upon in paragraph 6.19.

Orders

The appeal is allowed and I set aside the orders made by the Master on 28 April 2006. I will hear the parties as to the consequential orders sought and in relation to the question of costs.

Top of Page