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Manock v Channel Seven Adelaide Pty Ltd [2007] High Court - Transcript 7 August 2007

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

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Submission for Channel Seven Adelaide Pty Ltd Appellant

Gleeson CJ, Gummow, Kirby, Hayne, Heydon JJ

Application of Leave to Appeal - Transcript 7 August 2007

RJ Whitington QC with SJ Doyle for C7 instructed by Kelly & Co

GO’L Reynolds SC with RW Potter and NJT Swan instructed by Lawson Smith

Whitington: Can I commence with the statement of claim in the matter?  The Court will see other words which were published with the words complained of, and the two passages taken together make up what was either spoken or read over during the promotion. The words in the defence succeeded the words pleaded in the statement of claim. The plaintiff then asserts a natural and ordinary meaning, or innuendo, to the effect that: the plaintiff had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder.

If I can come ahead to the defence? The defence denies the plaintiff’s pleaded imputation, does not admit that the words were published of and concerning or referring to the plaintiff, but then pleads further and in the alternative that the words complained of were a fair comment on the matter of public interest, and that is the contentious plea.

Paragraphs 4 and 5 contained an alternative plea of justification to alternative meanings. They have been struck out, they were struck out at the first stage by the master, and the appellant has never complained about that. Paragraph 6, and apparently consequentially paragraph 7, has been struck out.

Gleeson CJ: Mr Whitington, there is never going to be a jury involved in this case, is there?

Whitington: No, there is not, your Honour.

Gleeson CJ: I was just a little puzzled at why you have such ferocious interlocutory battles about pleadings and particulars in circumstances where there is no problem about what goes before a jury where it is all going to be resolved by a trial judge anyway.

Whitington: Well, your Honour, we understand what your Honour puts in that regard, and obviously there is considerable force in that. As we understand it from the plaintiff’s point of view, the plaintiff can see that there was a kind of Chakravarti point in this case, and the plaintiff apparently conceived that the defendant was seeking to make out a defence which in some way, in the words of the Full Court, did not meet or address the plaintiff’s imputation and therefore had the potential to be a barren defence of the kind described in Chakravarti.

Gleeson CJ: But presumably the ultimate purpose to be served by interlocutory battles in a jurisdiction that does not have trial by jury is to avoid surprise.

Whitington: Yes, quite so. Quite so, and – but I think the foundation of the plaintiff’s attack was that the plaintiff conceived that the defendant was seeking to put before the court a false basis or foundation of fact, that is, facts which were irrelevant somehow to the plaintiff’s chosen plea. In other words, the plaintiff really was putting up that it could stamp its impression upon the case by pleading a particular meaning and then shut the defendant out from the defence of fair comment in some way.

Gleeson CJ: But the District Court judge who ultimately comes to try this if it ever gets to trial will only get to paragraph 3 of your defence if he or she has already accepted paragraph 5 of the statement of claim.

Whitington: Within certain tolerances, yes. Within certain tolerances, that is, that whether he has accepted the meaning pleaded in paragraph 5 or some less injurious meaning which is not substantially or materially different.

Gleeson CJ: But if the trial judge has already found that the words mean that the plaintiff had deliberately concealed evidence, what is the factual basis of the comment which would constitute a defence?

Whitington: The next step is for the judge to consider the published words which are said to give rise to that imputation and to ask the question, are they comment or not?

Gleeson CJ: But do you suggest that the published words cover deliberate concealment?

Whitington: What we submit is that that is a possible and permissible meaning and that – we say one has to be very careful about the question of meaning here. The ultimate question for the trial judge at this point in the defence will be whether the comment bearing the meaning found was capable of warranting – was capable of being fair comment warranted by the facts led in evidence and found. So the ultimate question for the trial judge at this point will be, was the comment objectively fair in the sense found, and to decide that he will have to have regard to the evidence and the facts found on the evidence and then ask this question, the question never asked either by our opponents below or by the Full Court, could any honest person, no matter how obstinate, biased or prejudiced, have formed this view as found based on these facts?

Kirby J: That formulation, however obstinate, et cetera, comes from an English decision. It seems a very perplexing formulation. How can you be honest and how can you reach a fair view if you are obstinate and stubborn?

Whitington: Well, that is why it has been said, your Honour, in various commission reports and cases, that the word “fair” is perhaps a misnomer, and that ultimately the question is whether an ordinary citizen should be entitled to express that opinion on those facts. So, as I say, the test of fairness is not a true synonym for the ordinary concept of fairness, but it is in fact a label for a band of permitted opinion or conduct. The case your Honour refers to is the decision of Lord Esher in Merivale v Carson, I think in the 1880s, and it is a test which has been long accepted, but accepting that that be the test there is a test of objective fairness. As I say, could any honest person no matter how prejudiced, biased, obstinate and so on express that opinion on these facts as found?  Now, there is then - - -

Kirby J: I do not concede the common law as standing, at least from my mouth, to protect stubborn and prejudiced people and their comments.

Whitington: Well, that might mean that one has to reconsider the entire test of what is fair. The test is altered, as the Court knows, in the uniform Defamation Act to one of honest comment.

Kirby J: Especially when you are protecting very large corporations with great power to inflict great harm on people and their reputations, indirectly on their families and others, ruin their lives, ruin their occupations. If they are stubborn and pig-headed and ignorant and prejudiced it does not seem to me, at least unarguably, to attract an entitlement to make comment and then say that comment is fair.

Whitington: Well, the consequence of that is this, that the defence is said to have been formed by the concept of freedom of expression and the right of freedom of expression, and if one is to test every opinion against some measuring stick of obstinacy or acceptable prejudice or unacceptable prejudice and so on, then freedom of expression would really be emasculated and the issue for the Court would be almost impossible.

Kirby J: No, it would be fair and it would not protect ignorant, stupid, prejudiced, biased calumny. But, anyway, I think it is a long way from this case. I mean, the strength of your case is that you put up this short statement and then when you are put to the test you formulate a series of background facts against the background of which you say this is a fair comment, and we know from the Mallard case that it was largely because a media organisation pursued Mr Mallard’s claim to innocence that ultimately the truth was unravelled and discovered. So at least it seems to me that you have a strong and arguable case, that what you have put forward are matters relevant to the fairness of the comment that you make, as I understand that proposition.

Whitington: Well, can I say, your Honour, that is at the heart of this appeal.

Gleeson CJ: Well, nobody has ever suggested, have they, that fair comment means just comment?

Whitington: No, that is right.

Gleeson CJ: What the theory of the law is - is that if it is comment upon facts truly stated then the reader can look at the facts and say, well, that is his opinion and I will make up my opinion.

Whitington: That is so, your Honour, subject to this exception which might intrude into this case, and that is that this Court held in Pervan v North Queensland Newspaper, we say, both in the majority judgment and in the judgment of Justice McHugh following the House of Lords in Kemsley v Foot that it was enough in certain cases to indicate sufficiently the subject matter or substratum of fact so that at least the recipient would have the opportunity of considering for themselves the opinion.

Gleeson CJ: Exactly. It is because the comment does not have to be just that you have the superadded requirement of “on facts stated or indicated”.

Whitington: Yes. Yes, although I suspect it will be put against us that in a case such as this where the facts are not stated they are simply indicated. The recipient has not had the opportunity to decide for themselves and that is where we rely when it comes to that on Pervan, and Kemsley v Foot, and I will analyse those cases in due course, if the Court wishes me to go to the notice of contention in this -

Kirby J: At some stage in your submissions I would be grateful if you would remind us because the matter was raised in Chakravarti what Polly Peck says and what Lucas-Box says. You in your submission say, “Well, this is not quite a Polly Peck, this is truly a Lucas-Box.” You may go around in your life carrying these in your brain but I have to tell you that they are not pleasant thoughts that I think about every day. I agree with Justice Ipp, this is the Galapagos Island area of defamation practice which is not something that one necessarily remembers.

Whitington: Well, can I perhaps attempt to step through the outline of the argument and address that as I go so your Honours can see where we are going on our appeal?  We say in the first instance that the defence of fair comment does not at the outset respond to meaning, that all that the defendant is required to do is plea certain words back and claim that they are comment and fair comment, that is, objectively fair, and there is no requirement in common law that the defendant should identify the meaning or imputation said to be contained in the words.

Now, there has been a requirement put in some recent cases that the defendant identify the substance of the comment, the substance of the comment as distinguished from the meaning, although in cases the two might merely coincide. As we discern it that is put so that the plaintiff has identified for him the field of territory marked out by the defendant for the defence of comment and so the defendant cannot latch onto another charge or allegation or defamatory sting in the published material and seek to rely on that in opposition to the plaintiff’s claim, thereby raising a false issue.

Kirby J: Can we make this concrete? Assume a broadcast or a newspaper item says in the course of its coverage a judge is a habitual drunkard. The media organisation cannot then say, “This is fair comment because the article is really about the terrible problem in society of intoxication and alcoholism and we say it is fair comment on that subject”, and the plaintiff is entitled to say, “Well, that is not really what it is about, I say it is about me, and if I lose that, well, you do not have to worry about other things”.

Whitington: Yes, correct. So while we say in the first instance the defendant does not have to identify the meaning of the comment, at some point they might be required to make a claim that they are operating in the same field as the plaintiff’s defamation. But when the defendant in a fair comment case pleads facts, they are either pleading them as the facts stated in the article or the published works, or the facts that they say are indicated by them, and they are pleading those facts as facts going first to the public interest, the matter of public interest, said to be recognisable in the comment, and secondly as the matter is said to form the foundation for the comment, that is, to warrant the comment as fair according to the law’s test.

So the question of meaning does not directly arise there in the way it does in the defence of justification. In the defence of justification meaning in truth at two levels, first, the defendant might plead back to the plaintiff its own meaning - and this is where the Lucas-Box consideration arises - the defendant might plead back to the plaintiff a meaning based upon the very words that the plaintiff relies on but an alternative meaning which is materially different from the plaintiff’s meaning and seek to justify that. Alternatively, the plaintiff might simply plead facts, and it might be said that those facts are incapable of justifying any relevant meaning in the case. That is not the test or the analysis required in fair comment. In fair comment the relevance of the facts is to see whether they warrant the comment being expressed.

Kirby J: The instance I gave you is not an unusual one, because sometimes it has been known for media items to parade as being concerned with great issues of social importance, but the actuality of the item is focused, in the nature of media today, on an individual and a sort of infotainment approach. We have to keep our eye on the realities of the way the media operates today and fashioning requirements of pleading.

Whitington: In that case, your Honour, if the media organisation, the media defendant sought to justify, the plaintiff would announce and plead its imputation. The defendant will either plead justification to it or plead an alternative imputation. On the authority of Lucas-Box or the so-called Polly Peck first rule in England the defendant would be entitled to plead back at the plaintiff a materially different meaning and justify it. That was a concept deprecated by Chief Justice Brennan and Justice McHugh in Chakravarti, where they said to allow a defendant not only to give notice of an alternative meaning quite removed from the plaintiffs, but to justify it, would be to lead to a trial on a false issue.

Now, that was not a matter addressed by your Honour Justice Kirby or by Justice Gummow and Justice Gaudron in that case. Indeed, Chakravarti only concerned the obligation of the plaintiff to plead out its meanings. Nowhere in Chakravarti is anything said about the obligation of a defendant to plead out meanings although, as I say, Chief Justice Brennan and Justice McHugh who step over that stage, go on to say that if a defendant does plead out meanings, he cannot seek to justify a materially different meaning.

Gleeson CJ: Let us relate that specifically to this case. Take the words “the evidence they kept to themselves”. Now, that might be an allegation of deliberate concealment, or it might be an allegation of incompetence or negligent failure to disclose facts.

Whitington: Yes.

Gleeson CJ: The pleading of the plaintiff asserts that those words with the sentences around them meant that there was a deliberate concealment of evidence. As I understand the basis of the decision against you thus far, it is that when you look at your defence of fair comment, you will find nothing in that defence of fair comment that sustains a comment that this was deliberate concealment. All you will find is reference to a variety of matters that are capable of sustaining a comment that this was incompetent concealment or negligence and thus the conclusion was reached that what you are relying on cannot constitute a defence to the case that is laid out against you.

Whitington: In essence I agree with what your Honour is putting to me, with one qualification. That is this. Your Honour is clearly doing that through the lens of a test of objective fairness. Nowhere does the Full Court address that test. We say, had they addressed that test, then they could not conceivably have struck out the particulars as not being capable of founding the opinion.

Now, if I can just pick up what your Honour has put to me, it is right to say that the plaintiff says that these statements mean that he deliberately concealed evidence. We pleaded, by way of justification, an alternative meaning that he was incompetent in his evidence gathering and giving. That was struck out on the kind of Chakravarti approach endorsed by our Full Court in Advertiser Newspapers v Manock as pleading a false issue.

The question then arises though, what role does meaning, and particularly alternative meaning, have to play in fair comment? We say it only has a role to play at the subsidiary level when one comes to test the objective fairness of the comment. So the real question here was assume that the plaintiff is, according to Chakravarti, bound to his pleaded imputation, bearing in mind, of course, that Chakravarti allows a deal of latitude in the imputation which can be found, then assume that the facts alleged by the defendant are proved. Could it be said that no honest or no fair-minded person could honestly express, in effect, what I will call the plaintiff’s imputation on those facts? 

Now, that is a question never addressed by the Full Court in those terms. Our learned friends say they must have been addressing that because they must know that there is a difference between justification and the objective test of fairness, which is all very well except that the court does not ever announce the test of objective fairness or say it is addressing it. We say that one can test it this way. It could not conceivably be suggested, we say, that these facts are incapable of supporting an opinion in the terms that the plaintiff would have it or something within permissible bounds.

Kirby J: The Chief Justice’s question has really helped to clarify in my mind what this case is about if you are standing back from it, and we have to do that in this Court. If the plaintiff alleges a particular imputation and confines and narrows his case to that and says, “I am just not going to fight on that this is negligent and incompetent and so on. I am going to fight it and put all my eggs into the basket that this was using these words as meaning I deliberately did this” – that is his case – why, in the object of focusing the forensic battle, the adversarial trial, on the case as presented, should you not be confined to answer in that case fighting it and saying it had other meanings, and if you win that the plaintiff loses because he has put all his eggs in the basket of deliberate and not obfuscating the issue by then saying, “It has a different meaning and we will require the court go into that different meaning and we will have endless interlocutory litigation, such as this case, about that other meaning.” Why is it not a just way to confine the case, which is one of the purposes of pleadings and particulars? Should you not have to face up to the way the plaintiff puts the case, and fight that case, and maybe win it on the basis that that is a far too narrow meaning of the matter complained of?

Whitington: It may be just to allow the case to be confined within narrow bounds on the plaintiff’s chosen ground, but the question is what that means in its application in a particular case and, in particular, what it means for the defence of fair comment. We would put three things in response. The first is that the view was endorsed by two Justices in Chakravarti that if the plaintiff does narrow his sights, so to speak, and plead a limited but chosen imputation, then, in their view, the defendant should not be allowed to plead, at least by way of justification, a case that responds to materially different imputation.

The second response we have is that that must be seen in light of the considerable flexibility that was allowed in Chakravarti to pleaded imputations. It was said that the plaintiff would be bound to the pleaded imputation or some less injurious and not substantially different imputation, but your Honour Justice Kirby and Justices Gaudron and Gummow admitted, if you like, some flexibility in the case of procedural fairness where there was no unfairness or prejudice to the defendant in allowing greater latitude at trial.

The third response is this. That approach has one consequence in the context of justification, but it has another consequence in the case of fair comment. One must critically bear that in mind at all times. That is where we say the fundamental error of the Full Court lies, in that they did not keep focused on the fact that they were dealing with the defence of fair comment and not a defence of justification. We say that is significant for this reason. As I was saying earlier, in justification meaning is critical.

Kirby J: Can I just concretise that by asking in the instance I cited that the judge complaining about being criticised as a habitual drunk but in the context of an article that talks about the problem of alcoholism or alcoholism amongst lawyers and so on, just has to put up with that as fair comment because as a matter of policy it is very important that people should be allowed to say matters about such important questions as alcoholism in the community. He just has to cop it.

Whitington: No. First the defendant must sustain that as comment and not a statement of fact, and on its face, your Honour’s proposition looks to be objectively provable fact rather than comment. But assuming it can be sustained as comment, it must then be comment on a matter of public interest. Finally, it must be comment on facts stated or sufficiently indicated.

Kirby J: The statement here is in the usual weasel word, “they”. Undefined “they” kept these matters back.

Whitington: It was accompanied by a picture of the plaintiff and he says it refers wholly and substantially to him and we accept that for these purposes, but the ultimate question is this. We pleaded by way of fair comment that the words were comment in any permissible meaning. Now, that means that when one tests the objective fairness of the comment, one would embrace the plaintiff’s meaning and say, “Assuming these words are comment - and that was never challenged – is it fair comment to say that this plaintiff deliberately concealed evidence based upon the facts referred to, but not stated, which are now pleaded?”

Kirby J: Your case is the plaintiff is being too paranoid here. “They” is plural. We were referring not just to him, though his photo is there, and that if matters are being kept back from courts, that is a very important matter of general public importance on which we are entitled to comment, and sometimes comments of that kind have been beneficial to the ultimate outcome of justice.

Whitington: We say that this is clearly a matter of public interest. We also say that the substratum or subject matter was notorious, or at least in the public arena, and that that is sufficient. It is not contested that the words are comment, not contested at this stage. We are prepared to accept for these purposes that they apply to the plaintiff and assume the meaning he attributes to them. The question then becomes – and this is the question never posed by the Full Court – is that comment objectively fair in the sense known to the law? Now, we say that the answer to that could only ever be unarguably not sufficient to satisfy a strike-out test.

If the court is standing back at the interlocutory stage, without the benefit of the trial, without the benefit of the evidence, could say, “No person could conceive of deliberate concealment based upon all these pleaded facts”, but when you study the pleaded facts, and in particular the accumulation of the pleaded facts, there is open a view that an honest, fair-minded person might adopt, that there was deliberate concealment of evidence by the plaintiff.

 Now, again, that is not a matter ever addressed by the Full Court, essentially for two reasons. They posed the wrong test, and secondly, they appeared to suggest that the facts had to be reviewed to see if they could sustain the truth of an imputation of fact, rather than the fairness of a comment. That really is the nub of this case. We would accept there might be extreme cases where it could be shown at an interlocutory stage on a General Steel test that, on the facts relied upon by the defendant, no fair-minded person could express the opinion expressed. But that is not this case and, in any event, that test was never posed by the Full Court for it to come to that conclusion.

Hayne J: Can I just understand that last proposition. You say, or you do not say, that the matters particularised reveal objectively a case of deliberate concealment. You do not go that far.

Whitington: We are neutral about that.

Hayne J: You do not assert – and indeed your plea of justification was struck out, was it not?

Whitington: Yes.

Hayne J: You do not seek to say that the matters particularised reveal a case of deliberate concealment.

Whitington: I am content with that, your Honour, with one qualification – the plea of justification struck out because it raised a false innuendo that was outside the ambit of the- 

Hayne J: I understand that, but there is no justification of that which is alleged against. True?

Whitington: Yes.

Hayne J: You say that the matters particularised are such as what – could lead a person, albeit stubborn and prejudiced, to honestly hold the opinion that there was deliberate concealment. Is that what it comes to?

Whitington: Exactly, your Honour. At least it is arguable at this stage, and it would have to be a very clear case where a court would say the proposition is so manifestly untenable that the particulars must be struck out, bearing in mind that the particulars are particulars of facts which it is said will be sustained by the evidence at trial, and these facts will be given colour and context by the evidence at trial.

Hayne J: The facts stated or indicated upon which the comment is based are what – notorious facts, are they?

Whitington: Yes, your Honour.

Hayne J: Notorious facts such, for example, as we see in 3.22.

Whitington: They are notorious subject matter

Hayne J: Notorious subject matter, I understand – the Keogh case is a matter of notoriety – that I understand – do you say, is it necessary for you to say that the facts such, for example, as the facts asserted in 3.22 are notorious facts?

Whitington: We do not say that, your Honour, and we do not have to. We say that Kemsley v Foot and Pervan stand for the proposition that in a case such as this – a case of a notorious matter or a matter, to use the words of Chief Justice King in Pryke’s Case, a matter in the public arena, all that must be indicated is the subject or the subject matter and that then it is open to the defendant to plead any number of facts within that subject matter contained or embraced by that subject matter and a trial-

Hayne J: Any number of, or any particular selection of a number of?

Whitington: Any number of.

Hayne J: The two may be radically different.

Whitington: Yes, but I think any number of facts which are capable of founding the opinion, in the objective sense, that I have addressed and, as Lord Porter says in Kemsley v Foot in a dictum that Justice McHugh embraced, it may be that the defendant will plead 20 facts and a trial only prove one of them. But if that fact is enough to warrant the opinion, then the defence succeeds.

Gummow J: Do you accept the formulation by counsel for the respondent that the defence of fair comment usually arises in three situations? You say this is the third, do you, or not?

Whitington: We say it is the second case, your Honour.

Gummow J: I thought you had slid away from “notorious” to some degree.

Whitington: No.

Hayne J:  .....facts you had.

Whitington: We do not accept, with respect, this analysis in that it slides from the concept of subject or subject matter to the concept of facts. The emphasis that the High Court in Pervan places on the concept is on the relevant subject matter or substratum of facts, which is what must be indicated. Lord Porter and Lord Oaksey are to similar effect in Kemsley v Foot.

Gleeson CJ: But is the purpose of indicating it to enable the reader or the viewer to make up his or her own mind?

Whitington: That, with respect, your Honour, is a very vexed question. There are two recent English pronouncements – one from Justice Eady in a case Lowe v Associated Newspapers [2006] 3 All ER, where Justice Eady analyses this question at great length and says, ultimately that is a flawed and unnecessary proposition. It is not necessary to lay out the facts in some way before the recipient so that they can judge for themselves the validity of the comment. Lord Ackner, in a case in the House of Lords – Telnikoff, which is footnoted in our submissions, in 1992 – in a dissenting speech put the position very strongly that the law did not require the recipient to have before them the facts relied on by the commentator sufficient to enable that recipient to make their own judgments.

Gleeson CJ: But do you have to put before the reader or the viewer sufficient of the facts to enable them to see that all they are getting is the opinion of the commentator?

Whitington: I think you do; yes. I think that is the critical distinction.

Gleeson CJ: What is the significance in the present case of the word “new” in the matter published? If you look at page 5 of the appeal book, this is all introduced by the statement “The new Keogh facts”, that is to say facts that the public do not already know. Is not the whole of the matter complained of introduced by an assertion that there are new – that is to say previously unknown facts?

Whitington: It is a question of precisely what that means in the context. It is capable of meaning the new facts between the first trial and the second trial. It is also capable of meaning facts which have come to light since the second trial.

Kirby J: But is not the suggestion that it is the new facts that this program will bring to light that you, out of your public service, have uncovered?

Whitington: That may be so, but-

Kirby J: The promo.

Whitington: - what we say is that here is a subject or subject matter which is indicated. It is the conduct of the Keogh trials to which forensic evidence was critically important. It is the conduct of those trials. In the words of Lord Porter in Kemsley v Foot, the reader or the viewer is afforded the opportunity themselves to know the subject or subject matter. We would say if there is a purpose to this requirement, it is perhaps a threefold one.

Kirby J: The mischief here was the photograph of the plaintiff. Why did you not have a photograph of Mr Keogh? I mean if you had had a photo of Mr Keogh, then “they” could be “The System”, but it is the fact that you had the photo of the plaintiff that does the mischief to the plaintiff and suggests, in the manner of modern media, that this is infotainment but at the expense of the plaintiff.

Whitington: Yes. We do not run away from that. We have identified the plaintiff and therefore, for these purposes, we have to accept that we face a case where these words are said to refer to him. For present purposes, we accept that. If I might come back to the point the Chief Justice was putting to me, if the test is the one we say is to be found in Pervan and Kemsley v Foot, that all that needs to be identified in a notorious affair or a matter in the public arena is the subject or subject matter, it begs the question of that requirement. Why is that required? There might be three reasons for that. One is – and this might be really a presumptive requirement of the evidence and proof – if no substratum is indicated, it might be found that it could not conceivably be recognisable as opinion. Secondly, the opinion must be on a matter of public interest and, we would submit, recognisably on a matter of public interest. If that is so, then the identification of the subject or subject matter of notoriety or in the public arena serves the function of identifying that the comment is recognisable as a matter relating to the public interest.

Kirby J: I suppose it would have been safer for you if you had had a big picture of the Supreme Court building.

Whitington: That could work two ways, your Honour.

Kirby J: The media love human beings

Whitington: The third reason might be this – and that is that by indicating the subject matter, it at least affords some counterbalance to the defamation because the effect of the defence of fair comment is that the commentator is allowed to defame provided they stay within permissible bounds. If they are required to identify a subject of public discussion or notoriety, then it becomes clear that the attack rests upon the plaintiff’s public conduct or activities and not the plaintiff’s private conduct or activities.

So there are at least three reasons why it might be requisite to identify a subject or subject matter in that way, short of a requirement that the recipients have before them all the facts in the mind of the commentator so that they can judge for themselves the validity of the opinion. It is sometimes said in the cases that it would be impossible for a commentator if before expressing a comment they had to recount all the matters of fact they had in mind before they could make a comment. That would be an impossible burden. I will perhaps come to Pervan and Kemsley v Foot in a moment.

Can I just indicate to the Court where we say the Full Court applied the wrong test. If I can take the Court back to the reasons, the court recites the elements of the defence of fair comment in fairly conventional terms, except that in dealing with the last element – the question of objective fairness – they put one formulation which does not take account of the rider which is imposed that it be any fair-minded person, no matter how biased or prejudiced. So it might be significant that the Court did not remind itself of that.

Gleeson CJ: But that expression “sufficiently indicated” raises the issue that you mentioned a little earlier, I think.

Whitington: It does.

Gleeson CJ: Does it mean sufficient to enable the person who reads the comment to form his or her own opinion on the matter or does it mean sufficient to indicate that which is referred to as the first element of the defence, that is to say that the matter or words in question were comment rather than a statement of fact?

Whitington: The latter, your Honour, and for the three reasons I have given. That is the only construction of that requirement consistent with the result in Pervan – the judgment of this Court in Pervan – and the reasons of the House of Lords in Kemsley v Foot. Can I perhaps take up Kemsley v Foot.

Kirby J: I notice that neither Polly Peck nor Lucas-Box have made it into these compilations.

Whitington: I meant to address that in passing with your Honour. That is because we say-

Kirby J: Do it in your own time. It may come naturally later on. I just do not want you to assume that I know all the nuances of Polly Peck and Lucas-Box. I have more important things on my mind than the pleading of defamation cases. Mr Reynolds looks shocked to think that there could be anything more important.

Whitington: I share your sentiment at the moment, your Honour, but I hope to be relieved of it.

Kirby J: You will just have to get over the outrage because I do not have it under my pillow every night.

Whitington: I hope to be relieved of that sentiment by 4.30, your Honour. Can I take the Court first of all to page 353.

Gummow J: Before we descend into all of that, do you accept the analysis of Kemsley by Lord Ackner in Telnikoff [1992] 2 AC 343?

Whitington: I would have to remind myself of that, your Honour.

Gummow J: I know it was a dissenting speech, but it has his Lordship’s habitual acuity of perception of these things. The discussion of Kemsley commences at 361F: there was a sufficient substratum of fact indicated in the libel to justify the allegation being treated as comment. That seems to be what it was all about.

Whitington: Yes. We do accept that, your Honour. The passage higher up feeds the point we were making to the learned Chief Justice. Perhaps if the Court would start at the passage at point B – “If the criticism of an article” and so on and then the passage starting, “In my judgment”.

Kirby J: But there is no way the public would have, in this case, known all those very detailed facts that you are particularising in support of your contention of fair comment.

Whitington: No.

Kirby J: There is no way that they would have any idea. They may well be quite important facts-

Whitington: Precisely.

Kirby J:   - - that you knew, but they are not matters that are matters of common knowledge or would be known to the public when they saw your promo.

Whitington: Precisely. But that cannot preclude a comment on that subject matter because if it is a requirement of fair comment that the recipient must know all of the detailed facts relied upon and in the mind of the commentator at the time they make the comment, then it impossibly confines and constrains the defence of fair comment. Perhaps if I can come back to explain that point too in Kemsley v Foot.

Kirby J: Well, it is of the nature of a promotional broadcast, that it is going to be very short, and will not have all of the detail.

Whitington: Precisely, and that is of the nature of many comments. I mean, a comment on a performance that is necessarily - - -

Kirby J: Is the lesson the plaintiff tries to teach, and the Full Court teaches, is that – is a particular reason for being careful of brief promotions. You have to do them with exquisite care. What you can do in the whole broadcast, and I note the broadcast is not sued upon - - -

Whitington: Yes.

Kirby J: - - what you do in the whole broadcast is one thing, but what you are doing in the brief promotion can itself and of itself and on its own do a lot of damage.

Whitington: Yes, we accept that, and we accept that the program itself may be entirely defensible and the promotion might not be. But can I start with the reasons of Lord Porter and could I say this, that if the Court studies again the arguments in Kemsley v Foot, the competing arguments, they very much put the opposing positions that have been put in argument this morning. On the one hand, Mr Diplock was saying, the facts must be before the recipient so they can make their own judgment, and opposing counsel for the newspaper was saying they did not have to be, it simply had to be clear it was an expression of opinion.

If I come perhaps to the speech of Lord Porter there is a passage in the middle of the page starting, “If an author writes a play”. He is there addressing the fact that matters might be in the public arena but the detail of the matter might not be known to the recipient of the defamatory comment, and he then refers to newspapers and says that they are submitted to the public. Then he says this: Accordingly, its contents and conduct are open to comment on the ground that the public have at least the opportunity of ascertaining for themselves the subject-matter – and I stress subject matter – upon which the comment is founded. I am assuming that the reference is to a known journal:  for the present purpose it is not necessary to consider how far criticism without facts upon which to base it is subject to the same observation in the case of an obscure publication.

Then in the middle of the page he says: The question, therefore, in all cases is whether there is a sufficient substratum of fact stated or indicated in the words which are the subject-matter of the action, and I find my view well expressed in the remarks contained in Odgers on Libel and Slander (6th ed., 1929) -

There, no doubt, there is a passage in the quote from Odgers that our learned friends will found on at about point 6 on the page: So, if without setting it out, he identifies the conduct on which he comments by a clear reference. In either case, the defendant enables his readers to judge for themselves how far his opinion is well founded - Now, of course, he only does that by reference, he does not do it by stating the facts.

Kirby J:   No, but according to Lord Porter it has to be either a substratum of fact stated or indicated in the words.

Whitington: Yes.

Kirby J: Now, the substratum of all the detailed facts that you are now particularising was not stated in the promotion, so the question on that test is, was it sufficiently indicated, and it is asking those few words you use, especially if the innuendo is deliberate concealment, to say that those few words you used in the promotion amount to an indication of the words, the subject matter of the action of fair comment.

Whitington: But, your Honour, we say they only have to indicate the Keogh trials and the Keogh controversy. Two trials, appeals, petitions of mercy to the governor which have gone to the Full court, all matters in the public arena and of public notoriety.

Gleeson CJ: This is a marketing exercise. Is not the inducement to viewers to watch a new program about an old subject that there are going to be new facts revealed?

Whitington: There may be new facts, your Honour, but it is an old subject and an old subject matter.

Gleeson CJ: They are not going to advertise this by saying, yet another television program about this trial.

Whitington: Well, they chose not to.

Gleeson CJ: So they put up front new facts.

Whitington: Or perhaps a new construction on the facts, because in large part it involves a recounting of the evidence given from one trial to another and the way in which that changed. Now, one might consider that an old fact, or one might consider the comparison of the two pieces of evidence as a new fact, because that is one of the techniques adopted in the particulars to say that in the first trial he said this and in the second trial this was said. In the first trial somebody said there was no photograph, in the second trial the photograph was produced. In the first trial he said that Ms Cheney was killed by somebody holding her left thigh with a left-hand grip.

In the second trial he was taken to the scene and confronted with the fact that for the murderer to have employed a left-hand grip in that position he would have been in the wall, and so he then altered his evidence to say that it may have been a right-hand grip and then admitted that a photograph showing a left hand had in fact been reversed and it was really a right hand which had been reversed.

Now, they are just some of the matters that are gone into in the particulars. One might say they are new facts in the sense that the comparison is new, or one could call them old facts, so there is a matter of construction as to precisely what comment is to be implied from these words. But the present question is, is there a sufficient subject matter indicated to warrant the comment, and that is the question addressed again by Lord Porter: Indeed, it was ultimately admitted on behalf of the appellant that the facts necessary to justify comment might be implied . . . 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 –

So this is his test – 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?

Kirby J: Well, there you run into a bit of a problem, as Chief Justice Gleeson pointed out earlier, that by boasting of new facts, which you are not going to get until you see the full program, you are not really stating with sufficient clarity the factual substratum upon which the alleged fair comment is being made. You are promising to do it but you are not doing it in this publication.

Whitington: But we say that the concept of substratum must mean the affair being indicated, the event, and that is clear from the rest of his discussion. It is also clear from Pervan. You see, in Pervan’s Case it was a very unusual result in that this debate arose and Justice McHugh in his reasons puts very much the position I am putting, but at the end of the day he found that there was not a sufficient indication of the substratum in the comment, and the comment was two questions and a sentence, and it harked back to statements about the plaintiff in the Queensland Parliament. He said there was not a sufficient reference in the statement to the substratum and it could not be proved by extrinsic facts. The majority speak frequently about an indication of the facts, although in one place adopt the expression “the substratum effects”, but when they come to a conclusion they hold that these three sentences were a sufficient indication of the substratum, contrary to the conclusion of Justice McHugh, who has in fact given the more elaborate analysis of this question.

Now, we say that Pervan clearly supports our position that all that is required is a sufficient or general statement of the subject or subject matter and that thereafter it is open to the defendant to warrant by reference to proof at trial of sufficient facts, and that is the very point that Lord Porter makes at page 358, if I could just go there?  He says: 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.

I pause there. We would say by analogy the substratum here is the Keogh murder trials and the forensic evidence deployed in those trials. He then says: The criticism is that that press is a low one.

Well, assume for a moment the criticism here is taken to be that there was deliberate concealment of evidence. He then says: 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 –

We say there that is referring to the objective test – a failure to prove the other nineteen would not of necessity defeat the defendants’ plea.

There is a passage, perhaps I will just commend it to the Court, at the preceding page 357 in the middle of the page where he talks about the fact that Lord Kemsley was in control of a number of known newspapers, and he says at the end of that passage this: The facts, they admitted – this is the appellant – might be implied, and the respondents’ answer to their contention is – and his Lordship appears to endorse this – We have pointed to your press. It is widely read.

We say here we have pointed to the Keogh controversy, it is widely known: Your readers will and the public generally can know at what our criticism is directed.

We say here the recipients can and will know that any criticism to be found or replied in the comment is directed at that controversy and the chain of events entailed in it. He then goes on: It is not bare comment; it is comment on a well-known matter, much better known, indeed, than a newly printed book or a once-performed play.

Now, can I turn briefly to the reasons of Lord Oaksey at page 360?  He said: My Lords, I agree. The forms in which a comment on a matter of public importance may be framed are almost infinitely various and, in my opinion, it is unnecessary that all the facts on which the comment is based should be stated in the libel in order to admit the defence of fair comment.

So it is not necessary to state the facts: It is not, in my opinion, a matter of importance that the reader should be able to see exactly the grounds of the comment. It is sufficient if the subject which ex hypothesi is of public importance –

So I pause there. That meets our proposition that a reason for requiring identification of the subject matter is so it is recognisably a matter in the public interest. He says: is sufficiently and not incorrectly or untruthfully stated.

Now, that decision was applied, we say, in the decision of Pervan. Can I take the Court to that? The case involved the proper interpretation of the Queensland Code governing defamation. I do not think I need to go into the background, but the place to start perhaps is this. It is said that: In this case, it is not necessary to decide whether the defence of fair comment under s.375 requires that the comment be based on facts which are true. It is sufficient to deal with the question which arises for decision under s.377(8) –

And then on 327 in the middle of the page: 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 they then go on to say this, and this is picking up the common law: 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.

Gleeson CJ: Now, do you accept that that is an accurate summary of the effect of Kemsley v Foot?

Whitington: No, we do not, with respect. We say that misstates that passage from Kemsley v Foot at page 356.

Gleeson CJ: Well, you say that is wrong, do you?

Whitington: We say it goes too far, as does the next sentence. If, however, one reads “facts” as a synonym for substratum of fact, then we say it is consistent with Kemsley v Foot.

Gleeson CJ: Well, those two propositions that you say are wrong are the same, are they not, as the propositions that were accepted by Lord Nicholls that was said by Justice Eady in Lowe v Associated Newspapers to be wrong?

Whitington: Yes, that is right. But could I ask the Court before the Court forms a judgment about this to go to page 330, and this is where the Court expresses its final opinion on the application of the section to the present case, and they say this at the top of the page: Implicit in our acceptance of this conclusion is a rejection of the appellant’s final contention that, if the whole of the publication consisted of comment, there were no facts relevantly stated or indicated on which it was based. There was a clear substratum of fact on which the publication was based, consisting of the statements made in Parliament, and that is all that is required. So, we say, when the passage at 327 is read in light of that conclusion at 330 then overall it is consistent with an application of Kemsley v Foot.

Gleeson CJ: Right or wrong, they are clearly saying on 327, are they not, in the middle of the page, that the expression “sufficiently indicated” means sufficient to enable persons “to judge for themselves how far the opinion expressed in the comment is well founded”.

Whitington: They do say that but if one reads “facts” as a synonym for “substratum of fact”, then that proposition is diluted to an extent. I should tell your Honours, because I have not given your Honours this in the extract, that in this case the comment was simply this. It was an advertisement and it said: “Councillors feathering their own nests?  Funds being misappropriated?  This is doing irrepairable [sic] damage to the image of our shire.

Then please attend a meeting. The appellant who sued was a councillor and a chairman of its works committee and a member of the Parliament of Queensland had made allegations that he had misappropriated council money. The majority held that those three statements were comment or capable of being comment and were comment which was capable of being warranted, that is, supported by a substratum of facts, being a debate in Parliament or comments in Parliament, although those facts were not anywhere stated in or with the published comments.

Gleeson CJ:   But they existed anterior to the published comments.

Whitington: They did.

Gleeson CJ: Here the whole point of this publication is what is sometimes is called a teaser, is it not?  It is to tell people that there are new revelations to be made. This is not just a rehash of an old story and they are encouraging people to watch the program they are advertising on the basis they are going to learn something they do not already know.

Whitington: There are two answers to that. One is that to indicate some new facts may not disqualify the basis of the comment – that is the first point – because there may be an opportunity for somebody to know those facts in any event. Secondly, when one studies the particulars relied on to support the comment, the facts are new, as I have put before, in the sense of the conclusions which can be drawn from them. The primary facts put are old. The primary facts put, by and large, are matters which are recited as having occurred in the public arena in some way and principally in the trials all the anterior investigations resulting in matters arising at trial. So when one comes to the word “new” in that context, one cannot fasten on it too strongly. It is necessary to understand what it is capable of meaning and it is capable of indicating a new construction on existing facts and that is, in fact, the effect of the pleaded term “substratum.”  Now, can I briefly take the Court to the reasons of Justice McHugh.

Kirby J: If the purpose of fair comment is, as has been put to you on a couple of occasions, to enable the reader to say, “Well, that is your opinion. I will make up my own on the basis of the facts”, then whatever can be said about the availability of that in the full broadcast, which is not being sued upon, there really is the most skimpy material in the promotion on which a member of the audience could make up their own mind. Indeed, it is, in a sense, denied, because they have got to wait until they see the full program and the new facts and say, “Well, I just do not know,” but they have got the photo of the plaintiff up there and it does not look good for him.

Whitington: Your Honours pose to me the very question that is posed by Kemsley v Foot and Pervan, that is, what is the rationale of the requirement for an indication of some subject matter? If it so that the recipient can know all of the facts brought to mind by the commentator as warranting the comment, then that both sets the test too high and is inconsistent with the outcome in Kemsley v Foot and in Pervan. If it is simply to enable - - -

Kirby J: Except that there it is was said that these facts were notorious about Lord Kemsley and his press, whereas here it is said there are new facts that are going to be revealed later on.

Whitington: Your Honour, with respect, in Kemsley v Foot what was held by the House of Lords to be notorious was the fact that he owned and was responsible for the conduct of a number of newspapers.

Kirby J: For a low press.

Whitington: Yes. The facts that the defendant proposed to rely on in support of the article by Mr Foot were detailed facts going to specific examples of the deficiencies in the newspapers which may or may not ever have come to the attention of the recipient of the comment. The defendant in that case indicated that it proposed to lead evidence of specific articles where it said the news had, in effect, been fraudulently manipulated by the papers, but they were not matters directly indicated by the reference to the subject matter. We say that all that is required is an indication to the subject matter so that the recipient can say, “Well, that is only your opinion.”  They do not have to go on and say, “Well, that is only your opinion and I analyse and assess everything that lies behind it and I agree with you,” or, “I disagree with you.”  We say that for a number of reasons, but principally amongst them, because the law defends here freedom of expression, not freedom of debate.

Kirby J: It is a bit like the problem that arises with headlines and banner notices and the respondent quotes what Justice Evatt said long ago about them. This case is really rather similar to them because they are teasers. They are designed to get people to go out and buy newspapers and the problem is much the same, but in the nature of a headline and a banner headline on the street, you cannot put all the facts. Media reality meets common law.

Whitington: Yes. The point Justice Evatt was making in that famous passage was that if you do not sufficiently indicate a subject matter or if you entangle comment with fact, then you run the risk that it will all be held to be a statement of fact and not a statement of comment. So in many cases headlines have the appearance of pronouncements of fact and, as Justice Evatt said, they will be indefensible as comment. In Kemsley v Foot, of course, there was a headline -

Kirby J: But a statement “facts they kept from you” sounds a bit like a statement of fact.

Whitington: That is an entirely separate question, of course, which has never been agitated in this case because the plaintiff has always conceded for these interlocutory purposes that these statements are comment. The defendant’s sole attack was to say that the pleaded facts could not found the comment.

Gleeson CJ: It is a not a concession. It is the hypothesis upon which the argument has been conducted.

Whitington: That is what I meant, yes. So that must be the starting point for any analysis.

Gleeson CJ: No, the starting point for any analysis, which is also another hypothesis on which the argument is being conducted, is that the words convey the imputation, the defamatory imputation in paragraph 5.

Whitington: We are prepared to accept that as well, if the Court pleases. I do not want to be too repetitive about this, but we say that then invokes the objective test of fairness, not any requirement of, if you like, a matching of facts to meaning. That is where we say the Full Court has gone fundamentally wrong, because they had never expressly invoked the test of objective fairness. We were prepared, and we are prepared here, to meet an argument that these words are comment meaning what the plaintiff asserts them to mean, but we say, nonetheless, the Full Court’s decision cannot be sustained on the basis of striking out the facts pleaded to support the comment on the ground that no honest person would express that view. To demonstrate the way in which the Full Court approached that, if I could take the Court back to the judgment at appeal book 98. I will come back in a moment to Pervan. The conclusion is in paragraph 43 and the second sentence is a proposition the court has now repeated for the third time: The defence of fair comment must address the imputation pleaded . . . It follows therefore that the substratum of fact relied upon by Channel Seven to support the defence of fair comment must be capable of supporting the comment substantially in the sense pleaded by Dr Manock.

Then they say in paragraph 44: it is now necessary to consider whether the particulars pleaded in support of paragraph 3 meet this criterion. The particulars pleaded by Channel Seven in support of its plea of fair comment, set out above, are numerous. However, none are capable of founding as fair comment the imputation complained of – that Dr Manock had deliberately concealed evidence from the murder trials of Mr Keogh.

We might concede for the sake of argument that none of those facts were capable of making that imputation true, but that is not the question here. We do not anywhere in this judgment see the correct question identified. If the correct question had been identified, there is no way in which the court could have sprung to the conclusion at paragraph 45 without some consideration of the particulars and an analysis and a process of reasoning that involves starting with the test of objective fairness.

Kirby J: The problem is in the trial it will be like two ships passing in the night. The plaintiff is saying your promo implied or stated that he “deliberately concealed evidence from the murder trials of Mr Keogh”. A very serious imputation, very serious complaint of defamation. You say, “Well, we can give enormous amount of material about bad professional conduct, inconsistencies, incompetence and so on”, but the two are just not intersecting and the purpose of pleading and a particularisation is to have a collision and to resolve it.

Whitington: Save for this, your Honour. We have not been required, in the context of fair comment, to plead a meaning. The cases say we are not required to, but what we do say is that these words are fair comment in any meaning properly open. We will not be ships passing in the night. What we will be saying at trial, if it comes to this and if pressed, is that take all of these particulars, severally or collectively, and a reasonable commentator, if you like, an honest commentator, could come to the view, fairly, that there was deliberate concealment. There is one deficiency in the evidence after another and -

Kirby J: That may be so, but that is deficiency. It is not deliberate concealment. Really, the question of principle or policy that you have to answer, as far as I am concerned, is if the High Court has a choice – and we do not abjectly follow what the House of Lords says in Kemsley or anything else now – what is the choice that will best promote fairness and non-surprise in a non-jury trial of a defamation case in Australia?  At least, arguably, it is if the plaintiff puts all of his eggs in one basket and takes the risk that that involves, then you have to attack that basket.

Whitington: We say we are attacking that basket, with respect, your Honour, but if we say we will meet him on his own ground on this, if he wants to stand on deliberate concealment -

Kirby J: Not really.

Whitington: Because, you see, deliberate is a matter of motive. It is not a matter that is ordinarily established by direct evidence. It is ordinarily established by circumstantial evidence. We say that these facts taken collectively and circumstantially not only are capable of leading a commentator, not proving true, but leading a commentator to believe and express the comment that there was (a) concealment and (b) it can only have been deliberate.

Gleeson CJ: Whether you are right or wrong, your argument involves the proposition that what is said in paragraph 45 confuses comment and justification.

Whitington: Yes, and certainly does not travel through the gateway of the correct test.

Whitington: Could I trouble the Court to go back to Pervan’s Case and the reasons of Justice McHugh dealing with defamatory comment which may be based on facts which are not published in the article and that is our paradigm: The defence is available even though the publication does not state or indicate the facts which form the basis of the comment.

Gleeson CJ: What does he mean by the expression in the previous sentence “in this class of case”?

Whitington: I think he is addressing the case, your Honour, where it is based upon facts which are not published with the article. That is the class of case I believe he has identified. He identifies four cases he says “In practice, a defamatory comment may arise in one of four situations” and identifies the first situation. We could say that that is one of the classes of cases his Honour means. The second is that: 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.

I take that, Justice Gummow, to mean that he is drawing a distinction between, if you like, an event or an affair broadly indicated and the facts which then comprise the relevant conduct within that so-called event or affair. He says: 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.

He then goes on to address Kemsley v Foot. He says: 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 . . . 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.

At the bottom of that page, he says: 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.

Gleeson CJ: Sufficiently for what purpose?

Whitington: Again, I will come back and say to your Honour, primarily for the purpose of indicating to the reader that this is only the commentator’s comment and there are those two other purposes I indicated, that it will then indicate to the reader that it is a matter of public interest. Finally, that will mean that the recipient knows that the comment is in the area of some public conduct or criticism and not in the area of private conduct, which has an amelioratory effect on the defamation.

Gummow J: The rationale appears to be the last sentence at the bottom. What does “effective” mean?

Whitington: I think what he means by that, your Honour, is that if it was necessary for a commentator to spell out with their comment each and every fact that they relied upon to provide the comment, then it would stultify comment, because -

Gummow J: It becomes circular because it assumes some fixed understanding of what “comment” is and then says you must stultify it. You just go around in a circle.

Whitington: But it must be recognisable as comment and that is the first step. The expression must be recognisable as comment and it must be recognisable as comment upon some public matter. Up to that point the rule makes sense. If the rule then required particular facts to be spelt out, then it would be almost impossible for the commentator to express a view.

Gleeson CJ: It must be recognisable as comment as distinct from a statement of fact.

Whitington: Yes, and that is what the authorities say. They say the defence does not simply protect comment. It protects that which is recognisable as comment. There is another passage that I draw the Court’s attention to starting “Three comments should be made on this passage”. In the middle of that paragraph his Honour suggests that it is erroneous to say that the facts “must be notorious to the reader”. That is in the same vein. Finally there is a passage “This passage indicates even more clearly” et cetera, where again his Honour sets out what he considers to be the correct view, down to the end of that paragraph.

There is one final matter that I wanted to draw to the Court’s attention and that is that his Honour concludes that substratum of fact was not sufficiently indicated. The majority held that those sentences sufficiently indicated comments in Parliament. Justice McHugh, who was most elaborate in his consideration of the issue of the substratum and subject matter concluded that there was not a sufficient identification of that subject matter or substratum. He said that could only be demonstrated by extrinsic evidence and he was not aware of any case where the commentator had sought to justify comments by reference to a subject matter or substratum which had to be proved by extrinsic evidence.

Gleeson CJ: Just applying that to the present case, again if you go back to page 5 of the appeal book, in the published matter what is there that makes this recognisable as comment as distinct from a statement of fact?  I would take, myself, the critical assertion to be the evidence they kept to themselves, which is another way of saying they kept evidence to themselves. On the face of it that looks like an assertion of fact.

Whitington: That, of course, is a different debate, but for present purposes we would say that what is indicated here is the subject or subject matter or substratum involving the Keogh trials. So the commentator has, in effect, said, “Can I remind you of the Keogh trials and all the controversy?  Now, I have a few things I want to say about it”.

Gleeson CJ: Or he says, “I’ve got some new information”.

Whitington: That is one construction which ultimately might be put upon it, but the construction which the defendant has put upon it and the plaintiff has not challenged is that it is comment. For these purposes, we must accept that as the starting point of the hypothesis and then test the plaintiff’s challenge against that or on that footing. The plaintiff’s challenge, as I have said before, was that assuming this be comment, the facts that you rely on could not sufficiently, if you like, found the comment as fair.

Gleeson CJ: I was really thinking of the plaintiff’s first ground of contention which appears in the respondent’s submissions at page 9, paragraph 5.4.

Whitington: I did not take that, your Honour, to be a contention that the statement is not comment. I took that to be a contention – let me come at it this way. The notice of contention is at page 116. Paragraphs (a) to (d) of the notice of contention are general matters of complaint going to pleading form. Paragraphs (e) to (h) raise what we might call the Pervan or Kemsley v Foot issue, as I read it, that is, that the item did not identify the facts.

Gleeson CJ: Yes, that is it.

Whitington: Then paragraphs (i) through to the end are really in the nature of the game complaints of pleading matters and they really are pure matters of form and particularity and what is more, they are not matters addressed in the Full Court . So the only matter of contention that we would submit could properly be before the Court is the matter raised by paragraphs (e) to (h).

Gleeson CJ: Yes, that is what I was thinking about.

Whitington: Your Honour, as I say, the submission as we understand it is broadly to this effect, that it is incumbent upon a commentator sufficiently to state facts with their comments and it is not enough for the commentator to indicate the subject or subject matter and we say that that is not the effect of Pervan and Kemsley v Foot. Can I just return for a moment to the question of fact or opinion?  We say a statement such as “the evidence they kept to themselves” is capable of being an inference and therefore a comment drawn by a commentator based upon the pleaded facts, but that really is a debate for another day.

Can I briefly address your Honour Justice Kirby’s request in relation to Polly Peck and identify where we say that body of authority fits in or does not fit in this case. There are two so-called Polly Peck principles as I understand them. One is that in England it is open to a defendant not only to plea an alternative meaning, materially different from the plaintiff’s meaning but to justify it, and that is sometimes called the Lucas-Box principle. Secondly, in England it is open to a defendant to plead that the published matter has a different sting, but a higher and common sting, if you like, than that identified in the plaintiff’s imputation and plead and defend or justify that higher sting.

This Court in Chakravarti said that as a matter of proper pleading practice a plaintiff was required to plead their imputations. The Court then said in various ways that the plaintiff was bound to those imputations and subject to some latitude. Effectively, all of the judgments we would accept stand for this proposition, that the plaintiff is entitled to judgment on some less injurious meaning provided it is not substantially different from that pleaded by the plaintiff. But this is subject to a rider, I think, in all three judgments that provided there is no procedural disadvantage to the defendant, the plaintiff can depart further from the pleaded meaning.

None of the judgments in Chakravarti say whether or not the defendant is required to plead meaning back at the plaintiff, but Chief Justice Brennan and Justice McHugh in paragraph 8, on the premise that the defendant has pleaded meaning back, put the proposition that the defendant cannot plead back against the plaintiff a materially different meaning and seek to justify that materially different meaning. Since Chakravarti, there have been various decisions around Australia applying and extending it. In the Victorian Court of Appeal decision in Hore-Lacy an extension was made to the effect that the defendant should plead, if it intended to justify, the meaning in which it intended to justify and it could not ordinarily plead a meaning outside the permissible bounds of the plaintiff’s meanings.

That was subject to a qualification by another Court of Appeal in Victoria in Popovic where Justice Gillard seemed to impose three qualifications on that. One was that if it was manifest the plaintiff had not pleaded all the permissible meanings, a defendant could plead those meanings and justify them. Another was, in his view, if there was a common sting which was not separable and distinct but part of the sting relied upon by the plaintiff, then the defendant ought to be able to plead that common sting and justify it. We simply emphasise that to say that those principles do not have a significant bearing on the decision in this case for the reasons I have put earlier, that is, that comment is quite a different defence from justification, that in comment a defendant is not obliged to indicate meaning.

In comment a defendant might, some of the recent authorities say, be required to indicate the substance of the matter so as to make it clear that the plaintiff and defendant are in the same field. But subject to that, the only question in the area of comment might ultimately be one, when it comes to meaning, whether any honest person could fairly hold the view expressed in the comment in the sense attributed to it by the plaintiff. We say that is a trial question but on a strike out application the test would be whether it was manifestly unarguable that the facts might make the comment in that sense subjectively fair.

We have put in our book of materials a copy of a decision of Justice McLure in Western Australia in Moir v Flint which I do not believe is reported. The court citation is [2002] WASC 48. We would commend that case to your Honours because we say that her Honour accurately stated the propositions applicable to a case such as this. Perhaps I will not stay to read them now, but paragraphs 21, 22, 24, 25, are apposite and then concluding in 29 and I might stay for a moment to read part of paragraph 29, because we say it is really the approach that the Full Court should have taken in this case. Her Honour says: In this case the defendant’s Polly Peck plea involves less injurious gradations of meaning on the same subject matter. She is there referring to a plea in justification – Indeed, it is not suggested by the plaintiff that the defendant’s Polly Peck imputations exceed the permissible limit of a Polly Peck defence. So too with the words complained of which the defendants identify as fair comment. They deal with the same subject matter as the plaintiff’s imputations.

We say that is the first step. The plaintiff may be entitled to an assurance that the defendant’s comment, if you like, springs from the same matter and the same charge as the plaintiff’s imputation. Then she says: It is not suggested that what the defendants have identified as -

Kirby J: Can I just ask you to pause there?  If the subject matter is a complaint of deliberate suppression of evidence, then the plea and the particulars which go not to deliberateness and suppression but to carelessness and negligence and incompetence, does not deal with the same subject matter, at least arguably.

Whitington: What she was addressing there was the comment. The comment identified must be that material which gives rise to the charge complained of by the plaintiff. In other words, the matter cannot say that the plaintiff is a thief and murderer and the plaintiff complained about the imputation that they are a thief and the defendant seek to defend on the ground of an entirely different charge or imputation. So there must be coincidence between the matter and ultimately the charge which the defendant intends to identify as comment and the plaintiff’s imputation. But that does not mean the meaning must be the same. They must be simply debating the same issue. She then goes on: It is not suggested that what the defendants have identified as fair comment goes outside the realms of the imputations capable of arising from the words complained of. The only question in issue in this case is whether the defendants should be obliged to state the substance of the comment.

In other Western Australian and Victorian cases the substance of the comment is said to be something apart from the meaning and for the purpose of identification. She goes on: I accept that there may be occasions when it is appropriate for a defendant to do so, for instance, where it is unclear whether it is capable of satisfying the test of fair comment by reference to the range of permissible meanings.

That is not the situation in this case. We say in that last sentence she identifies the correct test that the plaintiff should have invoked all along here and the Full Court should have invoked, that is, if we are to apply a kind of Chakravarti paragraph 8 approach, accept the plaintiff’s pleaded imputation, assume for a moment the comment relied on means that, will the facts pleaded, are they capable of warranting a comment in those terms as an honest and fair comment?  In that light, we say, as I have said before, the Full Court miscued. It did not ask itself that question. Had it asked itself that question, to address your Honour Justice Kirby’s point, it could have, we say, and should have said this. Take these facts. Somebody knowing of these things could honestly and fairly consistently with that test form that opinion, that is, that there was deliberate concealment.

The fact that each individual fact does not say evidence was deliberately concealed is not to the point. What matters is that there is an accumulation of deficiencies, many of which are in the nature of omissions of evidence capable of being a concealment on one view. They are the raw facts and the accumulation of those facts leads to the possibility of a deliberate motive. Now, whether or not ultimately the evidence will justify that final conclusion should be a matter for trial. But at this stage it cannot be said that it is impossible that a commentator could have formed the view so as to express the opinion that there was deliberate concealment of evidence.

Kirby J: So you have got a General Steel’s type point here as well as the defamation points?

Whitington: In the background we say for the point to succeed against us, first the test had to be formulated correctly, then it had to be applied correctly, then ultimately it had to be applied on the basis that our defence was manifestly untenable or unarguable, consistent with Dey v Victorian Railways Commission and General Steel and that line of authority, yes, but that is sort of a background test or the context in which all of this has arisen.

Kirby J: Woven through your written submissions are repeated references – which you have not really touched on this morning, maybe you are going to do it later this afternoon – to the significance of the decision of the courts below to the role of fair comment as a protector of free expression in our community. I do not know whether you were going to say anything about that orally, but I would like to understand how, in your assertion, the decision of the Full Court is an unreasonable inhibition on free expression in the form of fair comment.

Whitington: We say it is an inhibition for this reason, your Honour, it puts the cart before the horse. It says that the facts pleaded and known to the commentator and in forming their view must address the plaintiff’s imputation but the fact of the matter is, a comment, if it be a comment, was historically made. The fact of the matter is it was made on certain facts. You cannot gainsay that and the plaintiff cannot gainsay that by stamping his imputation on the comment.

Kirby J: “Stamping”, that is loaded language. The other way to put it is the plaintiff says, “Inherent in the so called comment is a serious defamation of me, an imputation, and that is all I sue on”. You say that is stamping his version, but if it is a version and if it is the one on which he sues, why should you be allowed to get away with it as free expression without answering his contention “You have defamed me by this particular meaning that is inherent in all the other material which you say is fair comment and free expression but which I say is defamatory of me”?

Whitington: We cannot get away with it at the end of the day if we are wrong about the defence of fair comment, but that is the trial issue. So at the end of the day, the court will say, we find that there was comment, we find that it meant what the plaintiff says – this is pursuing your Honour’s hypothesis – we find that the defendant actually had in mind these particular facts and there has been no suggestion of a lack of honest belief in this case either because there was no challenge on the reply or it was simply accepted that the defendant had in mind these facts. So then the ultimate question at trial is, was that opinion objectively fair?  The court might conclude, consistent with what your Honour is putting to me, that it was not, that it was so beyond the bounds of acceptable comment that no honest person, no fair-minded person could treat it as fair comment. That is the ultimate question.

Without really addressing it or appreciating it, the Full Court has addressed that question at the interlocutory stage and shut out the commentator and has really sub silentio – perhaps has not sub silentio said this, but perhaps they did not think about it – but has effectively achieved this result, that by no lights could it be said that these facts could support as fair that comment. We think, first, that if that was the court’s reasoning they should have spelt it out in paragraph 45 and thereabouts. But, in any event, we say that is an inconceivable outcome at the interlocutory stage because, amongst other things, there is no evidence in yet.

If the comment with the plaintiff’s imputation was that the plaintiff has deliberately concealed evidence and the defendant pleaded that it relied on facts which it had in mind when it made that comment, which had no rational relationship with the opinion at all in the plaintiff sense, it might be different.

So that, if Channel Seven were to plead facts that dealt with an entirely different forensic scientist, for instance, or an entirely different case, then it would be open to the plaintiff to say at the interlocutory stage there is simply no rational connection between that foundation and that opinion, but that is not this case. The facts do not have to say in so many words that any omission was deliberate, because by its very nature comment is the conclusion or inference drawn by the commentator. In this case, the comment is an implied comment and there is analysis of “implied comment” in the reasons of Justice Mahoney in the Petritsis Case that we refer to and I commend that to the Court. The point is here, the comment relied on by the plaintiff is an implied comment. We say it is clearly a comment that is capable of being supported by these facts.

Kirby J: Does the article by Associate Professor Kenyon discuss these matters of how the issues that you are debating before us fit into the operation of defamation law as a whole?

Whitington: Not directly. I have not found any article or publication that directly addresses the issue that we are presently concerned with.

Kirby J: We can easily get Mr Rare’s article in the ALJ but if this matter goes into tomorrow, if you can produce a copy of Associate Professor Kenyon’s article that would be helpful for me.

Whitington: We will undertake to do that anyway.

Kirby J: He is greatly respected in this area of the law.

Whitington: Yes. The focus of his article is more on the Polly Peck defences and - - -

Kirby J: He has written a whole book on Polly Peck.

Whitington: The point really being made by Mr Rare’s article is a slightly different one and it is directed at the Defamation Act 1974 (NSW).

Kirby J: Happily we are not dealing with that.

Whitington: No, but in a sense, that Act has some echoes in the plaintiff’s argument because there the imputation, as the Court knows, is the cause of action. The result was that the comment did have to, if you like, specifically address the stated imputation. There was a further difficulty in New South Wales in which it was held that the subjective requirement of honesty had to be directed to the opinion in the meaning in which the plaintiff pursued it. Generally, a defendant would say, “I did not intend that meaning”, therefore it would follow that the defendant did not have an honest belief and so the defence atrophied in New South Wales.

Kirby J: One walks, or at least I walk, with a certain degree of trepidation in this area because, I mean, it is an area that is gone over and over by the defamation list judges and there is a lot of l-o-r-e as well as l-a-w in it but in the end it will fall to this Court to resolve the present problem.

Whitington: We say the starting point is Petritsis’ Case and the analysis of Justice Samuels.

Kirby J: But that was on the 1974 Act.

Whitington: It was.

Kirby J: Indeed, that is the case that laid down the principle, as I understand it, that the imputation pleaded is the defamation sued on.

Whitington: That, or the subsequent case of David Syme v Lloyd. Justice Samuels in that case said that the cause of action rested on the imputation, but he said nonetheless the defence of fair comment addressed the matter, not the imputation but subsequently that was reeled in in later cases. I do not need to go down that path because none of the New South Wales authorities, so far as I am aware, directly addressed the point we are now dealing with.

Kirby J: What is the book by George, Defamation Law in Australia?

Whitington: That is a recent textbook on defamation law.

Kirby J: If that page is available that might be helpful to have that.

Whitington: Yes, we will undertake to provide copies of all those articles and extracts. Can I hand up to the Court a summary of the orders below so the Court can quickly appreciate how the pleadings got in the state they were before the Full Court . There is just one final matter. I want to give the Court a reference to the decision of the Full Court of the Supreme Court of South Australia in Pryke v Advertiser Newspapers (1984) 37 SASR 175. I told the Court that Chief Justice King referred to matters being in the public arena and the Court will see that at page 191.

Kirby J: This is a horror story, this document you have just handed up, because you seem to assume that we have written on our hearts what each of these subparagraphs says. I mean, it is just horrendous that the High Court of Australia has to get into the meandering course of this litigation. We would, obviously, one would think, have to search for a principle here.

Whitington: It was intended, your Honour, to avoid the Court being bogged down in that way. The short point is this, that before the Full Court the plaintiff was mounting an attack on paragraphs 3.18 to 3.39 of the particulars in that paragraph and that those particulars for all relevant purposes were untouched by any previous order. There is a minor qualification to that, but the Full Court then struck out those paragraphs 3.18 to 3.39 and we would seek to have them reinstated. That is really, I think, the beginning and end of the need for the Court to consider that aspect of the matter. Those are our submissions.

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