John Langmore v Australian Broadcasting Corporation [1987] ACTSC 74 (10 November 1987)

SUPREME COURT OF THE ACT

JOHN LANGMORE v. AUSTRALIAN BROADCASTING CORPORATION
S.C. No. 1340 of 1985
Practice and Procedure - Defamation

COURT

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

CATCHWORDS

Practice and Procedure - Application to strike out certain paragraphs of defence - principles to be applied.

Defamation - Defence of qualified privilege - fair comment - absolute privilege - forms of pleading

General Steel Industries Inc. v. The Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125

Comalco Limited v. Australian Broadcasting Corporation (1981) 50 FLR 467

Heugh v. Chamberlain (1877) 25 WR 742

Australian Broadcasting Corporation v. Comalco Limited (1986) 68 ALR 259

Telegraph Newspaper Co. Limited v. Bedford [1934] HCA 15; (1934) 50 CLR 632

Justin v. Associated Newspapers (1966) 86 WN Pt 1 (NSW) 17

Sutherland v. Stopes (1925) AC 47

Lord v. The Sunday Telegraph Limited (1971) 1 QB 235

Thomas v. Bradbury Agnew (1906) 2 KB 627

Cawley v. Australian Consolidated Press (1981) 1 NSWLR 225

Jones v. Skelton (12962) SRNSW 180

HEARING

CANBERRA
10:11:1987

ORDER

The motion be dismissed with costs.

DECISION

By writ of summons issued on 28 November 1985 the plaintiff claims damages for defamation arising out of the publication in the Australian Capital Territory by the defendant of a news broadcast on radio station 2CY on 26 November 1985. The statement of claim identifies the matter complained of in the following terms:

"Mr Nelson predicts that if self-government is not

deferred until after the election that the Federal
Government will suffer an electoral backlash which
could mean the loss of its two ACT seats.
The first member to lose his seat would be the Federal
member for Fraser, Mr Langmore, who kept a low profile
on the self government issue in the last election and
who is now saying that Canberra people would not mind
the extra rates and taxes imposed under self
government."

2. The defendant delivered a defence dated 13 March 1986 and by Notice of Motion dated 2 June 1986 the plaintiff has applied for an order striking out paragraphs 6, 6A, 7(2) and 8 of "the Statement of Defence" (sic). The defence has been amended twice but on the hearing of the motion it was mutually agreed between the parties that the motion to strike out should apply to the defence as further amended during the course of the hearing of the motion.

3. The case is unusual in that there is an issue of fact between the parties concerning the news broadcast pleaded by the plaintiff. By paragraph 2 of the further Amended Defence, the defendant does not admit the matter complained of by the plaintiff and says that on 26 November 1985 in a news broadcast on radio station 2CY it published the following words:

"1. The Referendum First Committee in CANBERRA says it
has 21-thousand reasons, that prove the error of a
claim that CANBERRANS generally accept the move to
Self-Government.
2. The Federal Labour member for FRASER, Mr John
LANGMORE, told Parliament last week that the
people of CANBERRA did not seem to mind the extra
state taxes involved, as the Territory moved
towards Self-Government.
3. He also said there was little opposition to the
move.
4. However, a spokesman for the Referendum First
Committee, Mr Allan NELSON, claims Mr LANGMORE is
only one of a number of politicians who find the
idea of their own government attractive.
5. Mr NELSON says his committee already has collected
more than 21-thousand signatures from residents,
calling for a referendum on the issue.
6. He also says callers to talk-back programmes on
ABC were opposed to Self-Government, by more than
two-to-one.
7. Mr NELSON has called on the Government to respond
to the call for a referendum on self-Government,
before going ahead with the idea.
(TAKE TAPE)
8. (F.W.) 'I THINK IT WOULD BE A FOOLISH GOVERNMENT
THAT GOES AHEAD WITH ANYTHING AGAINST THE WISHES
OF THE MAJORITY OF THE PEOPLE. DON'T FORGET THAT
WITHIN TWO YEARS THE FEDERAL POLITICIANS WILL HAVE
TO FACE THE ELECTORATE AND IN PARTICULAR PEOPLE
LIKE MR LANGMORE WHO WERE VERY QUIET ABOUT SELF
GOVERNMENT DURING THE LAST ELECTION CAMPAIGN IN
NOVEMBER LAST YEAR. WILL HAVE TO FACE AN IRATE
NUMBER OF VOTERS AND HE COULD VERY WELL FIND
HIMSELF BACK IN THE PUBLIC SERVICE.' (L.W.)
(DURATION: 30 SECONDS)
9 . (READER): Mr NELSON adds that CANBERRA people
should let local politicians know their views on
self-Government before it's too late."

The publication admitted by the defendant is referred to throughout the defence as "the admitted matter".

4. By paragraph 6 of the defence the defendant has pleaded qualified privilege in the following terms:

"6. In further answer to the whole of the Amended
Statement of Claim, and in the alternative, the
Defendant says that the matter complained of by
the Plaintiff and/or the admitted matter was
published upon an occasion of and under qualified
privilege by reason of the following facts and
matters:
(1) The Plaintiff is and was at all material
times a member of the House of
Representatives of the Parliament of
Australia and for the seat of Fraser in the
Australian Capital Territory.
(2) The Defendant is and was at all material
times a body incorporated under the
Australian Broadcasting Act, 1983 with the
functions, duties and powers provided for in
the Act.

The Defendant relies upon the whole of the Act, and especially Sections 5, 6, 7 and 8, 25, 26, 27 and 30.
(2) Section 27 of the Act provides:

(1) The Corporation shall develop and maintain an
independent service for the broadcasting and
televising of news and information by the
Corporation pursuant to this Section.
(2) The Corporation shall broadcast and televise
daily from all national broadcasting stations
and national television stations regular
sessions of news and information relating to
current events within and outside Australia.
(3) The Managing Director shall ensure that the
officers and temporary employees of the
Corporation include an adequate number of
persons, both within and outside Australia,
for the purpose of collecting the news and
information to be broadcast or televised
pursuant to this section.
(4) Without affecting the obligations of the
Managing Director under sub-section (3), the
Corporation may also precure news and
information relating to current events from
such news agencies and other sources, whether
within or outside Australia, as the Board
thinks fit.

(3) The matter complained of by the Plaintiff and/or the admitted matter was published by it in the course of a broadcast from a national broadcasting station of a regular session of news and information relating to current events within and without Australia.

(4) On 21 November 1985 in the course of the
proceedings of the House of Representatives the
Plaintiff made a speech in a debate on the
Taxation Laws Amendment Bill (No. 3) 1985 and
other related Bills providing (inter alia), which
was then before the Parliament for increases in
stamp duties and transfer charges to bring the
Australian Capital Territory into line with the
States. The Defendant craves leave to refer to
that speech and its defence upon the trial of
these proceedings, and in particular to the
following passage:
'No government enjoys introducing new taxes
or increasing tax rates. People in the
community do not generally welcome such
changes. However, there was no protest when
these minor measures were introduced in the
Budget other than some ritual posturing by
the Opposition. I did not receive a single
letter of protest, which is in sharp contrast
to the reaction of the Canberra community to
one or two other Government decisions this
year] This is a clear indication that there
is general acceptance of the reasonableness
of these changes."
(5) The following are and were at all material times
matters of legitimate interest to the general
public in the Australian Capital Territory.
(a) The public conduct of the Plaintiff as a
person taking part in public affairs, and in
particular his speech in the Parliament on
21 November 1985 and his attitude to taxation
within the Australian Capital Territory.
(b) The effect of the Taxation Laws Amendment
Bill (No. 3) 1985 and other related Bills on
transactions carried out within and on the
general public within the Australian Capital
Territory.
(c) The proposals of the Federal Government in
the said Bills.
(d) The attitude of the Referendum First
Committee to the Plaintiff as a person taking
part in public affairs in respect of his
public conduct, as member of Parliament for
the seat of Fraser in the Australian Capital
Territory, and his character, so far as his
character appears from his public conduct.
(e) The controversy generated within the
Australian Capital Territory as a result of
the Plaintiff's speech in Parliament on
21 November 1985.
(6) The matter complained of by the Plaintiff and/or
the admitted matter was published by the Defendant
which had a duty to publish it, as communicating
information relevant to, and because it related
to, each of the matters of legitimate public
interest set out above, to the public in the
Australian Capital Territory, who had a legitimate
interest in receiving it.

The Defendant's duty arises under general law, and also
expressly under Section 27 of the Australian
Broadcasting Corporation Act, 1983.

(7) On 26 November 1985, the Plaintiff made a personal
explanation in the course of proceedings in the
House of Representatives of the Parliament of
Australia and the Defendant craves leave to refer
to that speech in its defence on the trial of
these proceedings.
(8) On 27 November 1985, the Defendant in the course
of a broadcast from a national broadcasting
station of a regular session of news and
information relating to current events within and
outside Australia, broadcast the following matter:
1. The Labor member for the CANBERRA seat of
FRASER, Mr John LANGMORE has responded at
length in Parliament following suggestions
that he could lose his seat at the next
Federal election if Self-Government goes
ahead for the A.C.T.
2. Federal Cabinet's has deferred an immediate
decision on Self-Government, pending further
study.
3. Mr Alan NELSON of the Referendum First
Committee predicts that if Self-Government
goes ahead before the next election there
will be an electoral backlash and John
LANGMORE could be defeated.
4. Mr NELSON said that Mr LANGMORE had kept a
low profile on Self-Government in the last
election but he was now saying CANBERRA
people wouldn't mind the extra rates and
taxes which would be necessary to finance it.
5. Mr LANGMORE told Parliament he'd been
misrepresented and denied Mr NELSON'S
assertions.
(TAKE TAPE)
(F.W.) 'I DID NOT SAY NOR DID I IMPLY THAT
A.C.T. RESIDENTS WOULD ACCEPT ANY OTHER TAX
INCREASE, NOR OF COURSE DO I BELIEVE THAT TO BE
THE CASE. I DID NOT SAY, NOR DID I IMPLY THAT THE
INTRODUCTION OF SELF GOVT WOULD LEAD TO TAX
INCREASES OF ANY KIND, NOR DO I BELIEVE THAT SELF
GOVT WOULD LEAD TO ANY TAX INCREASES WHICH WOULD
OTHERWISE OCCUR.' (L.W.)
(DURATION: 30 seconds)
(READER:)
The embarrassment to Mr LANGMORE stemmed from a
tax debate in Parliament last week, when Mr
LANGMORE told Parliament that he did not get any
letters of protest when measures to introduce
several states-type taxes in the A.C.T. were
announced in the Budget."

5. By paragraphs 6A and 7 the defendant has pleaded matters of defence in the following terms:

6A. Further by reason of the facts and matters set out
in paragraph 6 above, and in the alternative the
matter complained of by the Plaintiff and/or the
admitted matter was published by the Defendant:
(a) in the course of a discussion of subjects,
the public discussion of which was for the
public benefit, and further, and
alternatively, insofar as the matter consists
of comment, the comment is fair; and
(b) further and alternatively, for the protection
of the interests of the public in the
Australian Capital Territory, and/or for the
public good.
7(1) Further, in answer to the whole of the Statement
of Claim, and in the alternative, the Defendant
says that the matter complained of by the
Plaintiff and/or the admitted matter was fair
comment upon a matter of public interest.
The Defendant relies upon the facts and matters
particularized in sub-paragraphs (1) to (4) and (5)(b),
(c) and (e) of paragraph 6 above.
(2) Further, and in answer to the whole of the Amended
Statement of Claim, and in the alternative, the
Defendant says that insofar as the matter
complained of by the Plaintiff and/or the admitted
matter consists of statements of fact, they are
true in substance and in fact; and insofar as they
consist of expressions of opinion, they are fair
comment made in good faith and without malice on
the said facts which are matters of public
interest.

6. By paragraph 8 of its defence the defendant has pleaded absolute privilege in the following terms:

8. Further, in answer to the whole of the Amended
Statement of Claim, and in the alternative, the
Defendant says that the matter complained of by
the Plaintiff, and/or the admitted matter was
broadcast from a national broadcasting station in
a regular session of news and current information
relating to current events within and outside
Australia within and pursuant to Section 27 of the
Australian Broadcasting Act, 1983 and that the
publication was thereby published upon an occasion
of absolute privilege and/or under the authority
of the Australian Broadcasting Corporation Act,
1983 and the Defendant is not liable for damages
or otherwise in respect of the publication of the
matter complained of.

7. The power to strike out pleadings is contained in 0.23, r.28 which is in the following terms:

"28. The Court or Judge may, at any stage of the
proceedings, order to be struck out or amended any
matter in any indorsement or pleading which is
unnecessary or scandalous, or may tend to prejudice,
embarrass, or delay the fair trial of the action, and
may in any such case, if it or he thinks fit, order the
costs of the application to be paid as between
solicitor and client."

8. The principles to be applied when a plaintiff is seeking an order that a defence be struck out are the same principles which apply to a motion to terminate an action. Those principles are discussed in General Steel Industries Inc. v. The Commissioner for Railways (N.S.W.) [1964] HCA 69; (1964) 112 CLR 125 where the Chief Justice said:

" . . . the plaintiff ought not to be denied access to the
customary tribunal which deals with actions of the kind
he brings, unless his lack of a cause of action - if
that be the ground on which the court is invited, as in
this case, to exercise its powers of summary dismissal
- is clearly demonstrated. The test to be applied has
been variously expressed; 'so obviously untenable that
it cannot possibly succeed'; 'manifestly groundless';
'so manifestly faulty that it does not admit of
argument'; 'discloses a case which the Court is
satisfied cannot succeed'; 'under no possibility can
there be a good cause of action'; 'be manifest that to
allow them' (the pleadings) 'to stand would involve
useless expense' . . . Dixon J. (as he then was) sums up
a number of authorities in Dey v. Victorian Railways
Commissioners [1949] HCA 1; (1949) 78 CLR 62 where he says: 'A case
must be very clear indeed to justify the summary
intervention of the court to prevent a plaintiff
submitting his case for determination in the appointed
manner by the court with or without a jury. The fact
that a transaction is intricate may not disentitle the
court to examine a cause of action alleged to grow out
of it for the purposes of seeing whether the proceeding
amounts to an abuse of process or is vexatious. But
once it appears that there is a real question to be
determined whether of fact or law and that the rights
of the parties depend upon it, then it is not competent
for the court to dismiss the action as frivolous and
vexatious and an abuse of process' ((1949) 78 CLR at
p.91). Although I can agree with Latham C.J. in the
same case when he said that the defendant should be
saved from the vexation of the continuance of useless
and futile proceedings ((1949) 78 CLR at p.84), in my
opinion great care must be exercised to ensure that
under the guise of achieving expeditious finality a
plaintiff is not improperly deprived of his opportunity
for the trial of his case by the appointed tribunal.
On the other hand, I do not think that the exercise of
the jurisdiction should be reserved for those cases
where argument is unnecessary to evoke the futility of
the plaintiff's claim. Argument, perhaps even of an
extensive kind, may be necessary to demonstrate that
the case of the plaintiff is so clearly untenable that
it cannot possibly succeed' ((1964) 112 CLR at
pp 128-130. See also H. 1976 Nominees Pty. Ltd. v.
Galli [1979] FCA 73; (1979) 40 FLR 242.)"

The application of these principles was discussed by Northrop J. in Comalco Limited v. Australian Broadcasting Corporation (1981) 50 FLR 467.

9. The application to strike out paragraph 6 is based on the assertion that paragraph 6 raises a false issue in pleading a qualified privilege not known to the law and is therefore embarrassing. A defence which a party is not entitled to make use of is embarrassing and may be struck out (Heugh v. Chamberlain (1877) 25 WR 742).

10. It was submitted on behalf of the plaintiff that the Australian Broadcasting Corporation Act 1983 does not impose upon the defendant the duty to publish any particular item of news or confer any particular privilege over and above a private publisher and the fact that the subject of the broadcast in question may be of "public interest" does not create any "interest" within the meaning of the relevant privilege at common law.

11. In my opinion this argument fails to have regard to the terms of the pleading itself. Under paragraph 6 it is specifically pleaded that the defendant's duty arises under the general law and also expressly under s.27 of the Australian Broadcasting Corporation Act 1983. It is clearly an arguable question whether the publication of the admitted material was made on an occasion of qualified privilege and whether that occasion is supported by the operation of s.27. It is at least arguable that s.27 is mandatory in terms and imposes a duty on the defendant.

12. Next it was submitted that particulars (7) and (8) under paragraph 6 are not relevant to the "occasion of qualified privilege" as they relate to subsequent events. In answer to that submission the defendant argued that those matters were pleaded to demonstrate that the issue of self-government was one of public controversy and concern in the Australian Capital Territory and that it was so recognised by the plaintiff in his explanation in the House of Representatives made on 26 November 1985 as pleaded in particular (7).

13. Looked at in that way, particulars (7) and (8) are legitimate pleading. They do not tend to raise a false issue or raise a defence not known to the law nor are they otherwise embarrassing. The authorities on qualified privilege are conveniently collected in Australian Broadcasting Corporation v. Comalco Limited (1986) 68 ALR 259, particularly in the judgments of Smithers J. and Neaves J. The application to strike out paragraph 6 is dismissed.

14. In relation to paragraph 6A of the defence, it was submitted that the paragraph duplicates either paragraph 6 or 7 of the defence and is therefore unnecessary, that it pleads a defence or defences not known to the law and is therefore embarrassing, and raises a false issue.

15. Counsel for the defendant did not seek to refute the assertion that paragraph 6A duplicates so much of the defence as had already pleaded that the publication was made on an occasion of qualified privilege. He sought to justify paragraph 6A as alternative ways of raising the defence based upon the dicta of Evatt J. in Telegraph Newspaper Co. Limited v. Bedford [1934] HCA 15; (1934) 50 CLR 632 at 653-663, and Walsh J.A. in Justin v. Associated Newspapers (1966) 86 WN Pt 1 (NSW) 17 at 33-34 and 39-40.

16. In my opinion the words of paragraph 6A are a permissible form of raising the defence of qualified privilege in alternative ways according to the dicta of those two cases. It does not seem to me that the defendant should be deprived of the right to raise the plea in an alternative way. Neither the length of the trial nor the complexity of the facts to justify the defence of qualified privilege would be materially increased by permitting the paragraph to remain. The application to strike out paragraph 6A is likewise dismissed.

17. In relation to paragraph 7 it was submitted on behalf of the plaintiff that it pleads the defence of fair comment twice and that the defendant should be put to its election as to which sub-paragraph of paragraph 7 it relies upon. Counsel referred to the discussion of the plea of fair comment and the rolled up plea in Sutherland v. Stopes (1925) AC 47 at 63 and 75-77, and Lord v. The Sunday Telegraph Limited (1971) 1 QB 235 at 239.

18. In response to that submission it was submitted on behalf of the defendant that paragraph 7 pleads a defence of fair comment in two forms so as to be sure of meeting the matter complained of with the appropriate form of defence. He conceded that both forms of defence are pleas of fair comment and as such do not involve any plea of justification (Sutherland v. Stopes, supra). However, the matter complained of may be all comment or part fact and part comment. Which it is will have to be decided at the trial.

19. Part of the plaintiff's complaint about the form of pleading was that in the "rolled up plea" asserting that the fair comment was made in good faith and without malice, the words "made in good faith and without malice" were themselves surplusage as the onus of proving malice is upon the plaintiff. Counsel relied upon Thomas v. Bradbury Agnew (1906) 2 KB 627 at 638, 640. Counsel for the defendant did not concede that the onus of proof of malice is on the plaintiff and disputed that malice, if proved by the plaintiff, is a conclusive answer to a defence of fair comment. He relied upon Cawley v. Australian Consolidated Press (1981) 1 NSWLR 225 at 237-8. In that case Hunt J. seemed to express the view that malice is but one of the elements to be considered and weighed in the jury's determination of whether the comment was unfair. He declined to strike out the pleading in that matter. He referred to the time honoured practice of pleading a defence of fair comment in terms that the publication was made "in good faith and without malice" or in similar terms (Odgers, Libel and Slander, 6th Ed., at pp.643-4, Fraser on Libel and Slander, 7th Ed., at pp.313-314, and the earlier editions of Gatley on Libel and Slander, for example, the 5th Ed., at p.26.

20. The form of "rolled up plea" adopted by the defendant in this matter accords with the form suggested by Ferguson J. in Jones v. Skelton (1962) SRNSW 180 at 190. Although it has fallen into disuse under the judicature system, its form does not amount to prolixity. It is at least arguable whether malice is a conclusive answer to a defence of common law fair comment, or is merely one of the considerations to be weighed in the factual determination of whether the comment was unfair. The defendant should be permitted to plead fair comment in alternative ways if it wishes to.

21. For these reasons and for the reasons advanced by counsel for the defendant, I do not think that the defence of fair comment pleaded in the alternative should be struck out or that the defendant should be put to its election at this stage.

22. As to paragraph 8 it was submitted on behalf of the plaintiff that it raises a defence of absolute privilege not known to the law and is therefore embarrassing. This argument involves a particular interpretation of s.27 of the Australian Broadcasting Corporation Act 1983. I can perceive an argument that the duty cast upon the defendant by the Act is mandatory and that the legislature intended to confer an absolute privilege upon the defendant in the circumstances envisaged by s.27. As it is arguable, I refuse to strike out the pleading.

23. The motion is dismissed with costs.