Robert William Waterhouse v Australian Broadcasting Corporation William Stanley Waterhouse v Australian Broadcasting Corporation Malcolm Waters v Australian Broadcasting Corporation William Allen v Australian Broadcasting Corporation [1987] ACTSC 42 (23 June 1987)

SUPREME COURT OF THE ACT

ROBERT WILLIAM WATERHOUSE v. AUSTRALIAN BROADCASTING CORPORATION
WILLIAM STANLEY WATERHOUSE v. AUSTRALIAN BROADCASTING CORPORATION
MALCOLM WATERS v. AUSTRALIAN BROADCASTING CORPORATION
WILLIAM ALLEN v. AUSTRALIAN BROADCASTING CORPORATION
S.C. No. 1877 of 1986
S.C. No. 1878 of 1986
S.C. No. 1897 of 1986
S.C. No. 2006 of 1986
Pleading and Practice

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Pleading and Practice - Action for defamation - Publication throughout Australia - Publication in Australian Capital Territory only alleged as basis for liability - Publication throughout Australia said to be cause of damage alleged - Whether cause of action sufficiently pleaded - Whether pleading embarrassing.

Rules of Supreme Court of A.C.T. - O.23, rr.4 and 22.

Toomey v. Mirror Newspapers Ltd. (1985) 1 NSWLR 173.

McLean v. David Syme & Co. Ltd. (1972) 72 SR (NSW) 513

Warne v. Chadwell (1819) 2 Stark 457: 171 ER 704

HEARING

CANBERRA
23:6:1987

ORDER

There be struck out of the second sentence appearing in the paragraph headed "Particulars of Publication" the words "and as to publication throughout the remainder of the Commonwealth of Australia only as to damages and not as to liability".

The plaintiff have leave to amend his statement of claim as he may be advised.

The costs to date of the defendant's notice of motion dated 20 March 1987 be reserved.

The third sentence appearing in the paragraph headed "Particulars of Publication" be struck out.

DECISION

Each of the plaintiffs has sued the defendant Corporation for damages for defamation. By notices of motion dated 20 March 1987 the defendant seeks in respect of each plaintiff's statement of claim that:-

(a) each and every alleged imputation contained in

paragraph 3 of the Plaintiff's Statement of Claim
be struck out;

(b) the particulars of publication and re-publication
contained in the Plaintiff's Statement of Claim be
struck out or amended; and

(c) such further orders as the Court thinks fit.

2. Consideration of the first order sought has been deferred so that at this stage I am concerned only to give a decision on the second.

3. I set out the relevant part of each statement of claim:-

Robert William Waterhouse v. Australian Broadcasting
Corporation.

"1. At all material times the defendant, (sic)
owned, operated, managed and controlled
television Channel 2 and telecast material
therefrom to a large and extensive viewing
audience throughout the Australian Capital
Territory and the Commonwealth of Australia.

2. On 10 November, 1986 the defendant
published of and concerning the plaintiff a
certain television programme 'Four Corners'
entitled 'Horses for Courses' which said
programme was telecast for general reception
and which contained the words and pictures as
set out in Annexure 'A' hereto.

. . .

Particulars of Publication

Particulars of publication are set out in
paragraph 1 above. The plaintiff relies upon
publication in the Australian Capital
Territory as to liability and as to
publication throughout the remainder of the
Commonwealth of Australia only as to damages
and not as to liability.

. . .

Particulars of Re-Publication

The plaintiff relies on re-publication of the
material complained of by the defendant on 11
November, 1986 and 16 November, 1986. The
plaintiff relies on the re-publication only
as to the issue of damages and not as to
liability."

William Stanley Waterhouse v. Australian Broadcasting Corporation

4. Paragraphs 1 and 2 and the particulars of publication and re-publication are exactly the same as those in the statement of claim of Robert William Waterhouse. Malcolm Waters v. Australian Broadcasting Corporation

"1. The defendant is and was at all material
times the proprietor and operator of
television station ABN Channel 2 from which
it telecasts television programmes to a large
audience thoughout the States and Territories
of Australia, including the Australian
Capital Territory.

2. On 10, November 1986 the defendant
telecast the television programme known as
'Four Corners' in which there was an edition
titled 'Horses for Courses'. The programme
was transmitted to a large audience
throughout the States and Territories of
Australia including the Australian Capital
Territory. In that segment of the programme
entitled 'At the Dogs - The Kilcoyne Affair'
the defendant published of and concerning the
plaintiff the words and pictures set out in
annexure 'A' hereto.

. . .

Particulars of Publication

Publication was effected to a substantial
viewing audience in all States and
Territories of Australia. The plaintiff
relies upon publication in the Australian
Capital Territory as to liability. The
plaintiff will rely upon publication in other
States and Territories in Australia on the
issue of damages only.

Particulars of Re-Publication

The plaintiff relies on re-publication by the
defendant of the matter complained of on 11
November 1986 and 16 November, 1986. The
plaintiff will rely upon such re-publication
on the issue of damages."

William Allen v. Australian Broadcasting Corporation

5. Except for an immaterial comma, paragraphs 1 and 2 of Mr Allen's statement of claim and the particulars of publication and re-publication are exactly the same as those in the statement of claim of Robert William Waterhouse.

6. The defendant sought particulars. In respect of the actions brought by Robert William Waterhouse, William Stanley Waterhouse and William Allen, to whom I will refer as the three plaintiffs, it asked,

"In relation to Paragraph 5 of the Statement
of Claim and the particulars of publication
referred to therein, and further to Paragraph
1 of the Statement of Claim, is it alleged
that the Defendant published the programme
referred to in Paragraph 2 of the Statement
of Claim by virtue only of the alleged
telecast of the said programme for general
reception throughout the Australian Capital
Territory and the Commonwealth of Australia?
If not, please provide further and better
particulars of the precise manner in which it
is alleged that the Defendant published the
said programme."

7. The solicitors for the three plaintiffs replied by saying:-

"The Defendant published the material
complained of by telecasting same for general
reception."

8. The defendant's solicitor wrote again to the solicitors for the three plaintiffs. He asked:-

"In relation to paragraph (s) 1 and 2 of the
Statement of Claim and specifically the
particulars of publication and
re-publication, the plaintiff alleges that he
relies upon publication in the Australian
Capital Territory as to liability. Is it
further alleged that any of the consequences
and damage referred to in paragraphs 4 and 5
of the Statement of Claim occurred in the
Australian Capital Territory?

Further, in relation to the particulars of
publication and re-publication, is it alleged
that these occurred only as the result of the
programme being broadcast and transmitted by
the Defendant from within the Australian
Capital Territory? Alternatively, is it
alleged that such publication and
re-publication occurred, as the result of
separate broadcasts and transmissions by the
Defendant occurring at or about the same time
within places outside the Australian Capital
Territory?

If it is alleged that the Plaintiff relies on
such separate broadcasts and transmissions of
the programme within places outside the
Australian Capital Territory, please provide
particulars of which States and Territories
outside the Australian Capital Territory such
broadcasts and transmissions are alleged to
have occurred in and how it is alleged that
the Defendant is liable for the consequences
and damage alleged in paragraphs 4 and 5 of
the Statement of Claim within such places."

9. In each case the solicitors for the three plaintiffs replied:-

"As previously advised the Plaintiff claims
punitive damages and damage to the
Plaintiff's reputation was occasioned by
publication by the Defendant in the
Australian Capital Territory.

Publications other than those in the
Australian Capital Territory will be relied
upon only as to damages and not as to
liability. Precise information as to when
and over what channels these publications
were made are not yet within the Plaintiff's
knowledge but are best within the Defendant's
knowledge. Presumably the Defendant will
supply this information in the answers to
Interrogatories or in the List of Documents
and we suggest that this matter be deferred
until then."

10. The solicitors for the defendant tried again. They asked:-

"In respect of the presently alleged
particulars of publication, the Defendant
takes issue as a matter of law with the
current Statement of Claim in so far as the
Plaintiff alleges in the particulars of
publication, that it relies upon publication
in the Australian Capital Territory as to
liability and as to publication throughout
the remainder of the Commonwealth of
Australia only as to damages and not as to
liability.

The Plaintiff is further invited to amend its
Statement of Claim in respect of the alleged
particulars of publication, failing which
application will be made pursuant to Order 29
of the ACT Supreme Court Rules."

11. By letters dated 19 March 1987, the solicitors for the three plaintiffs replied in respect of each plaintiff's claim:-

"The Plaintiff relies upon publication in the
Australian Capital Territory as to liability
and damages. At this stage the Plaintiff
does not rely on publication in the remainder
of the Commonwealth of Australia. No
amendment will be made to the Statement of
Claim."

Malcolm Waters v. Australian Broadcasting Corporation

12. The defendant's solicitor sought further and better particulars of Mr Waters' statement of claim as follows:-

"In relation to the particulars of
publication and re-publication, the Plaintiff
alleges that he relies upon publication in
the Australian Capital Territory as to
liability. Is it further alleged that any of
the consequences and damage referred to in
paragraphs 4 and 5 of the Statement of Claim
occurred in the Australian Capital Territory?

Further, in relation to the particulars of
publication and re-publication, is it alleged
that these occurred only as the result of the
programme being broadcast and transmitted by
the Defendant from within the Australian
Capital Territory? Alternatively, is it
alleged that such publication and
re-publication occurred, as the result of
separate broadcasts and transmissions by the
Defendant occurring at or about the same time
within places outside the Australian Capital
Territory?

If it is alleged that the Plaintiff relies on
such separate broadcasts and transmissions of
the programme within places outside the
Australian Capital Territory, please provide
particulars of which States and Territories
outside the Australian Capital Territory such
broadcasts and transmissions are alleged to
have occurred in and how it is alleged that
the Defendant is liable for the consequences
and damage alleged in paragraphs 4 and 5 of
the Statement of Claim within such places."

The solicitors for Mr Waters replied:-

"Particulars of Publication and Republication

It is alleged that some of the damage
referred to in paragraphs 4 and 5 of the
Statement of Claim occurred in the Australian
Capital Territory.

The publication occurred as the result of the
program being broadcast and transmitted by
the defendant from within the Australian
Capital Territory to an audience both within
the Australian Capital Territory and outside
the Australian Capital Territory. At or
about the same time the publication also
occurred as the result of the program being
broadcast and transmitted from places
throughout the remainder of the Commonwealth
of Australia to audiences within the
remainder of the Commonwealth of Australia.
The Statement of Claim makes clear how it is
alleged that the defendant is liable for the
consequences and damage alleged in paragraphs
4 and 5 within the remainder of the
Commonwealth of Australia.

The republication also occurred as a result
of the program being broadcast from within
the Australian Capital Territory to an
audience both within and outside the
Australian Capital Territory and by it being
broadcast by the defendant from places within
the remainder of the Commonwealth of
Australia to audiences within the remainder
of the Commonwealth of Australia."

13. The defendant's solicitor wrote again and said, inter alia:-

"In respect of the presently alleged
particulars of publication, the Defendant
takes issue as a matter of law with the
current Statement of Claim in so far as the
Plaintiff alleges in the particulars of
publication, that it relies upon publication
in the Australian Capital Territory as to
liability and as to publication throughout
the remainder of the Commonwealth of
Australia only as to damages and not as to
liability.

The Plaintiff is further invited to amend its
Statement of Claim in respect of the alleged
particulars of publication, failing which
application will be made pursuant to Order 29
of the ACT Supreme Court Rules."

14. I deal first with the three plaintiffs' statements of claim.

15. During the course of the hearing their counsel agreed that the letter of particulars from their solicitors dated 19 March 1987 might be treated as though there were excluded therefrom the sentence, "At this stage the Plaintiff does not rely on publication in the remainder of the Commonwealth of Australia." The paragraph as notionally amended therefore reads:-

"The Plaintiff relies upon publication in the
Australian Capital Territory as to liability
and damages. No amendment will be made to
the Statement of Claim."

16. It seems, however, and the argument proceeded on the basis that each of the three plaintiffs maintains his intention to rely on publication in the Australian Capital Territory as founding liability but on publication throughout Australia as founding his claim for damages. I proceed on that basis and assume that the confusion which might be caused by the statement that the plaintiffs rely on publication in the Australian Capital Territory as to liability and damages will be attended to by an appropriate clarification in due course. If it is not so clarified, it seems to me that each of the three plaintiffs' claims may be restricted to publication in the Australian Capital Territory in respect of liability and damages notwithstanding the averments in the statements of claim.

17. In argument, counsel for the three plaintiffs either submitted that or adopted the argument that a plea that publication took place in the Australian Capital Territory was sufficient to found a claim in damages in respect of publication throughout Australia as amounting in fact to a plea of publication in the other parts of Australia as well.

18. It is convenient at this point to go immediately to the authority on which the three plaintiffs rely, Toomey v. Mirror Newspapers Ltd. (1985) 1 NSWLR 173.

19. In that case Hunt J. held, as the headnote shows, that:-

"(1) In proceedings for defamation the common
law permits a plaintiff who has pleaded a
single cause of action against a newspaper
defendant to recover as ordinary compensatory
damages for the injury to his reputation
caused by the entire issue of that newspaper
published by the defendant, be it within the
State in which the action is brought or
elsewhere. (at p 184.)

(2) The Defamation Act 1974 makes no relevant
change to the common law in this regard.

(3) The plaintiff may plead such a
publication in one paragraph and may either

(a) identify the publication in his
particulars concerning publication
pursuant to the Supreme Court Rules
1970, Pt 67, r 12(a), as having taken
place in both this State and interestate;

(b) identify the publication in his
particulars concerning publication
pursuant to the Supreme Court Rules
1970, Pt 67, r 12(a), as having taken
place in this State, giving also details
of the interstate publication in his
particulars concerning damages pursuant
to Pt 67, r 12(b), (a course which may
be productive of error and therefore an
undesirable pleading practice).

(4) Whichever way the publication is pleaded,
the defendant is entitled to plead to the
interstate publication any defences available
in the interstate jurisdictions."

20. The plaintiff had pleaded in paragraph 3 of his statement of claim that:-

"The 'Daily Telegraph' is, and was at all
material times, published by the defendant
throughout New South Wales and the other
States and Territories of Australia."

By paragraph 5 he pleaded publication of the matter complained of "in the States and Territories aforesaid". Subsequently it was agreed that the reference in that paragraph to publication interstate should be withdrawn. In accordance with the agreement paragraph 5 was amended to allege publication "in the State of New South Wales". The publication complained of was therefore confined to that in New South Wales but damages were sought in respect of the entire issue of the newspaper whether published within New South Wales or elsewhere.

21. At p 177, Hunt J. said:-

"There are two general propositions which are
accepted by both parties as not being in
dispute in this case:

(1) Provided that the defendant is amenable
to the jurisdiction, a plaintiff is entitled
to complain in proceedings brought in this
State of publications which occur outside the
jurisdiction: the authorities are collected
in Ainsworth Nominees Pty Ltd v. Hanrahan
(1982) 2 NSWLR 823 at 825.

(2) The defendant is entitled to plead to an
interstate publication so complained of any
defence available by virtue of the lex loci
delicti in addition to those defences
available by virtue of the lex fori: Cawley v.
Australian Consolidated Press Ltd. (at
227-229); Phegan, 'Tort Defences in Conflict
of Laws - The Second Condition of the Rule in
Phillips v. Eyre in Australia' (1984) 58 ALJ
24 at 29-31. (See also Carleton v. Freedom
Publishing Co Pty Ltd (1982) 45 ACTR 1.)

Publication is not defined by the Defamation
Act 1974. At common law, it consists of the
communication of an imputation defamatory of
the plaintiff to some person other than the
plaintiff himself: Pullman v. Hill & Co Ltd
(1891) 1 QB 524 at 527. At common law, the
cause of action is based upon the publication
of the vehicle by which that imputation is
communicated: Webb v. Bloch [1928] HCA 47; (1928) 41 CLR 331
at 363. The vehicle may consist of a
document, or an effigy, or an action, or the
spoken word. Publication by the defendant is
the foundation of the action for defamation:
Powell v. Gelston (1916) 2 KB 615 at 619.
. . . where a document (defamatory of the
plaintiff) is intended to be read (or it is
anticipated that it will be read) by more
than one person, there is a different
publication (and thus a different cause of
action) each time that document is in fact
read: Emmerton v. University of Sydney (1970)
2 NSWR 633 at 634, 639.

In the case of a newspaper, there is a
separate publication (and thus a separate
cause of action) in relation to each copy
delivered to a reader: Duke of Brunswick v
Harmer (1849) 14 QB 185 at 189; 117 ER 75, at
76-77. If a newspaper circulates 100,000
copies of the one edition (defamatory of the
plaintiff), he has available to him at least
100,000 causes of action. The 'single
publication' rule adopted in the United
States, whereby a plaintiff is given only one
cause of action for each entire edition of
the newspaper, has not been adopted in this
country: see McLean v. David Syme & Co Ltd
(1970) 72 SR (NSW) 513 at 520, 528; 92 WN 611
at 616-617, 625. It was nevertheless an
acceptable practice, even under the common
law system of pleading then in force in this
State, for a plaintiff to plead only one
count to comprehend a claim for damages based
upon the publication of the entire issue of a
newspaper in this State: ibid at 522, 528,
618-619,625. But it was, in my experience,
usual for there to be a separate count
relating to the publication of the newspaper
in each State. Asprey JA held (at 521, 617);
that the pleading rule which forbad the
pleading of more than one cause of action in
each count (which made the count bad for
duplicity) made it obligatory for the
plaintiff to plead separate counts relating
to publication in each State. Mason and
Manning JJA preferred (at 529; 625) not to
express any opinion based upon the rule
against duplicity. They did not deny that
such was the appropriate manner in which to
plead a claim for damages in respect of
publication in a newspaper circulated in more
than one State; it was the defendant's
failure in McLean's case to object to the
form of the plaintiff's declaration (in which
a single count referred simply to an issue of
'The Age' newspaper bearing a particular
date, but which failed to identify where it
was alleged to have been published (see 516;
613)) that led to the conclusion of the
majority (at 529; 625) that the plaintiff's
action was so constituted as to enable him to
complain in that one count of publication in
both New South Wales and Victoria."

22. Defamatory material published in a television broadcast is a libel and not slander. Broadcasting and Television Act 1942. Section 124 of that Act reads:-

"For the purposes of the law of defamation,
the transmission of words or other matter by
a broadcasting station or a television
station (including a television translator
station or a television repeater station)
shall be deemed to be publication in
permanent form."

The provision has its counterpart in the English Defamation Act, 1952, s.1. See also Kasic v. Australian Broadcasting Commission (1974) 7 FLR 75, Supreme Court of Victoria, (Gowans J).

23. It follows that the plaintiffs need not allege that actual damage has resulted from the broadcast of the matter complained of for the law presumes that some damage would flow in the ordinary course of things for mere invasion of their absolute right to their reputations. Ratcliffe v. Evans (1892) 2 QB 524 at pp 528-9. So it was unnecessary for the plaintiffs to plead damage as part of their cause of action. All they had to plead was the publication concerning themselves of the alleged defamatory matters, for a cause of action is defined as being "every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved." Read v. Brown (1888) 22 QBD 128 per Lord Esher MR at p 131. See also Cooke v. Gill (1873) 8 LRCP 107 at p 115 per Brett J., as Lord Esher then was.

24. By a statement of claim properly framed the plaintiffs could have sued in this Court in the one action in respect of the unlawful publication of the material complained of as defamatory not only in this Territory but also in the States and the Northern Territory provided that the publication was not justifiable by the law of any of those States or the Northern Territory. McLean v. David Syme & Co. Ltd. (1972) 72 SR(NSW) 513 at p 521 per Asprey J.A. His Honour referred to Koop v. Bebb [1951] HCA 77; (1951) 84 CLR 629 and Anderson v. Eric Anderson Radio & T.V. Pty. Ltd. [1965] HCA 61; (1965) 114 CLR 20. He then went on:-

"By a declaration properly framed I mean a
declaration which contains a separate count
in respect of each act of publication relied
upon as a separate cause of action and to
which the defendant, if he wishes to displace
the presumption which, in the absence of
proof to the contrary, would lead to the
result that the laws of the other states or
countries will be assumed to be the same as
the law of New South Wales . . ., may address
appropriate pleas. . . ."

Later he said, at p 522:-

"In the law of defamation publication of the
defamatory matter has significance quite
apart from its constituting a cause of
action. These particulars were requested
upon the filing of the declaration but the
mode and extent of the publication may be
taken into account in the assessment of
damages. . . . Whilst under the rules in force
in this State with regard to pleading it is
sufficient from the point of view of
demurrability for a declaration to allege in
general terms a cause of action, a defendant
in an action of tort is entitled to be
supplied with sufficient particulars of the
plaintiff's cause of action to enable him to
admit it or deny it or otherwise plead to it
such defences as are available to him; and,
especially in the case of libel, the place of
publication which founds the cause of action
may be all-important to a defendant where the
defamatory matter is contained in a document
which is widely distributed.

But, whatever the purpose for which the
particulars were requested or supplied, the
important matter is that the particulars
supplied could only operate to define and
limit the issues of fact arising under the
cause of action pleaded and could not modify
or alter the cause of action sued upon or add
an additional cause of action (Mummery v.
Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99, at
p 110). Any modification of or addition to
the cause of action pleaded could only be
effected by amendment of the declaration
itself."

25. In my opinion, it is not open to the three plaintiffs to plead publication in the Australian Capital Territory as founding the cause of action and publication in other parts of the Commonwealth as founding an additional basis for an award of damages. The defamation of which the plaintiff complained in Toomey v. Mirror Newspapers Ltd. (supra) and with which Hunt J. was dealing was a cause of action in respect of injury to the plaintiff's reputation caused by the entire issue of the newspaper published by the defendant, within New South Wales where the action was brought, or elsewhere. The three plaintiffs are concerned to recover damages for television broadcasts to which different considerations apply. I think the two types of defamation are to be distinguished, for the plaintiffs are not claiming in respect of the single issue of a newspaper but in respect of multiple publications by the stations of the defendant's network throughout Australia.

26. In my respectful opinion, Hunt J. in Toomey v. Mirror Newspapers Ltd. was dealing with a situation which depended for its resolution in large measure upon the rules of pleading of the Supreme Court of New South Wales, rules which differ from those of this Court. Without in any way dissenting from his Honour's views concerning Cutler v. McPhail (1962) 2 QB 292, it seems to me that different considerations must apply when the question at issue is not whether damages are recoverable in respect of a single issue of a newspaper no matter where publication of that newspaper occurred but whether the plaintiffs have pleaded so as to enable them to recover damages in respect of publication in parts of Australia other than the Australian Capital Territory although not pleading publication in those parts as part of their cause of action.

27. In Toomey v. Mirror Newspapers Ltd. at p 186, Hunt J. dealt with the defendant's claim that it was prejudiced because in the state of the plaintiff's pleading it was unable to plead to the interstate publication any defences available according to the lex loci delicti which were not available to answer the plaintiff's cause of action in New South Wales.

28. His Honour said:-

"Whenever a plaintiff, in order to establish
malice, relies upon the publication by the
defendant of other defamatory matter, it is
open to the defendant, in order to disprove
malice, to adduce evidence of any facts which
would constitute an affirmative defence to an
action for defamation based upon that other
publication: Spencer Bower, A Code of the Law
of Actionable Defamation, 2nd ed. (1923) at
138-139. Malice is relevant to the issue of
damages, and Spencer Bower (at 140, footnote
(a)) also relates the right of the defendant
to lead such evidence directly to that
issue.

If this be so - and undoubtedly it must be
so, in principle - why cannot a defendant
similarly adduce evidence of any facts which
would constitute an affirmative defence to an
action for defamation based upon an
interstate publication upon which the
plaintiff relies upon the issue of ordinary
compensatory damages? I can see no reason
why he cannot, provided, of course, that he
has specifically pleaded such facts which, if
not pleaded specifically, may take the
plaintiff by surprise: Pt 15, r 13(2)(b).
The defendant's claimed prejudice does not
exist."

29. Pt.67, r 12(a) and (b) of the rules of the Supreme Court of New South Wales read:-

"12. The particulars required by Part 16
rule 1 in relation to a statement of claim
shall include -

(a) particulars of any publication on which
the plaintiff relies to establish his
cause of action, sufficient to enable
the publication to be identified;

(b) particulars of any publication,
circulation or distribution of the
matter complained of or copy of the
matter complained of on which the
plaintiff relies on the question of
damages, sufficient to enable the
publication, circulation or distribution
to be identified;"

30. So far as is relevant in this case to the rule just quoted, Part 16, r.1 reads:-

"(1) A party pleading shall give the
necessary particulars of any claim, defence
or other matter pleaded by him."

At p 186, Hunt J. continued:-

". . . the nett result of all of this work is
that a plaintiff is in much the same position
whether he pleads a publication in New South
Wales only, and gives particulars of his
claim for damages for publication interstate,
or whether he pleads publications in each
State and Territory. The only practical
difference from the plaintiff's point of view
is whether the interstate claim is made in
the particulars required by r 12(a) or in
those required by Pt 67, r 12(b). There is
no advantage one way or the other from the
plaintiff's point of view. The defendant is
obliged to plead either to the cause of
action or to the claim for damages so far as
it relates to publication interstate. There
is no disadvantage one way or the other from
the defendant's point of view, whichever way
the plaintiff pleads.

The course proposed by the plaintiff in the
present case, however, produces as a
necessary consequence a less strict adherence
to the ordinary principles and practices of
pleading. . . . (It) is certain to be
productive of error, particularly in the
hands of pleaders unused to defamation
pleadings. In all these circumstances, the
course proposed by the plaintiff is likely to
lead to mischief, and it would in my view be
better if that course were not followed in
the future."

31. So far as the rules of pleading in this Court are concerned, it seems to me that a cause of action for libel, as the alleged defamation is to be treated, can be pleaded completely without reference to damages at all, those damages being presumed. It follows, I think, that to permit the course adopted by the three plaintiffs in their statements of claim would involve the defendant in pleading to damages or particulars of damages rather than to the facts which go to make up the plaintiffs' cause of action. Admittedly the fact that a plaintiff inserts in his particulars an allegation of facts which should have been set out in the body of the statement of claim does not necessarily mean that it does not have to be pleaded to. (See Bullen & Leake and Jacob's Precedents of Pleading, 12th Ed., at p 122.) But it is undesirable that the necessity for such a course should arise.

32. The first passage in Spencer Bower's work on defamation to which Hunt J. referred is founded on Warne v. Chadwell (1819) 2 Stark 457: 171 ER 704. For the purpose of showing a malicious intention on the part of the defendant the plaintiff proved words that were spoken on another occasion by the defendant. Thereupon, as the report says:-

"On the part of the defendant proof was
offered of the truth of the latter words,
which the defendant had had no opportunity of
justifying, since they were not upon the
record."

The evidence was held admissible. So far as the rules of this Court are concerned, I think the significant feature of that case is that there was no pleading which set out the words given in evidence in the plaintiff's case to support the malice and the defendant had therefore had no opportunity to justify because they were not upon the record. Clearly the same position does not apply in New South Wales under its present rules.

33. Until 1981 the rules of this Court provided, by 0.23, r.22, that whenever it was material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it would have been sufficient to allege it as a fact without setting out the circumstances from which it was to be inferred. The rule was repealed in that year. It had its exact counterpart in the English 0.19, r.22 until 1949 when a proviso was added that where in an action for libel or slander the defendant pleaded that any of the words or matters complained of were fair comment on a matter of public interest or published on a privileged occasion, the defendant should, if he intended to allege that the defendant was actuated by express malice, deliver a reply giving particulars of the facts and matters from which such malice was to be inferred.

34. Commenting on the Victorian 0.19, r.22, again the exact counterpart of 0.23, r.22, the learned author of Williams Victorian Supreme Court Practice, 2nd Edn., said at p 1330 that the rule applied to the specific cases mentioned in it the principle established by the rule of pleading that only material facts and not the evidence by which they were to be proved must be pleaded. Order 19, r.4, Victorian Supreme Court Rules; Order 23, r.4 of the rules of this Court. The comment echoes that at p 363 of the Annual Practice 1955.

35. In Warne v. Chadwell (supra) the defendant was in a position where he could not plead justification to the words brought in proof of malice because they were not on the record, that is to say, as I understand that expression, not pleaded. That being the case, justice obviously required that he might be allowed to bring evidence to nullify the alleged malice. No doubt the same situation would have applied in this Court at least until 1981 and may, I do not think it necessary to decide the matter, still apply. It was the lack of a pleading which gave rise to the defendant's right to lead the evidence in justification. But there is no reason why distinct causes of action in the States and the Northern Territory should not be pleaded. The twofold aspect of the facts concerning publication referred to by Asprey J. in McLean's case at p 522 (supra) is to be borne in mind.

36. In my opinion the course adopted by the three plaintiffs is embarrassing. It requires the defendant, if it wishes to plead any defences available to it in other jurisdictions within the Commonwealth of Australia, to plead to a matter which is not potentially in issue as part of a cause of action in respect of publication in those other jurisdictions. The second sentence under the heading "Particulars of publication" in their statements of claim should be struck out. Although I have some doubt as to whether the alleged re-publication complained of under the heading "Particulars of re-publication" constitutes a re-publication as that word ought properly to be understood when the matter complained of is broadcast by repeat programme, I am not prepared to order that the second sentence under that heading should be struck out.

37. The same considerations apply to the claim made by Mr Waters with the same result.

38. There will be orders accordingly.