Ian Mclachlan v Rural Press Limited [1991] ACTSC 97; (1991) 105 FLR 369 (1 November 1991)

SUPREME COURT OF THE ACT

IAN MCLACHLAN v. RURAL PRESS LIMITED
S.C. No. 512 of 1990
Defamation - Practice and Procedure
[1991] ACTSC 97; (1991) 105 FLR 369

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Defamation - Comment - Fair Comment - Not Statement of Fact - Based on Facts in Publication - True Facts - Qualified Privilege - Reasonable Conduct - Reliance on Own Employee by Corporation.

Practice and Procedure - Pleading - Particulars - Defamation - Comment - Fair Comment - Identify Comment - Identify Facts - Qualified Privilege - Reasonable Conduct - Defendant's Belief - Defendant's Information - Sources of Information - Newspaper Rule - Public Conduct - Comment on Public Communication - Public Good - Giving Information - Public Discussion - Subjects of Public Interest - Discussion.

Gatley, on Libel and Slander - 8th Ed paras 692, 709

Defamation Act 1974 of New South Wales

Austin v Mirror Newspapers Ltd (1986) 1 AC 299

Traill v ABC [1987] TASSC 1; (1988) Tas R 1 at 7

Leslie v Mirror Newspapers Ltd (1969) 91 WN (NSW) at 651, 652,

Packer v Mirror Newspapers Ltd (1972) 2 NSWLR 68

Ampol Petroleum v Shell Co of Australia Ltd (1966) 1 NSWR 180

HEARING

CANBERRA 1:11:1991

ORDER

The Amended Defence be further amended in each sub-paragraph in which comment or fair comment is pleaded, so to identify which part of the matter complained of is alleged by the defendant to be comment and which part is alleged to be fact upon which the comment is based.
The relevant paragraphs in the Amended Defence are 5(b),

6(c)(ii), 7(b), 8(a), 8(b), 8(f), 9(a), 9(b), 10(b), 10(c),
10(d), 10(h) and 10(i).

The following matter be struck out of the Particulars which form part of the

Amended Defence, namely:

(a) Sub-paragraphs 1(d) and 1(e) of the particulars headed
"C. COMMENT" on page 11.
(b) Subparagraphs 1(e)(iv) and (v) on page 10, and
1(e)(vii) on page 11.

The defendant amend the particulars which form part of the Amended Defence

by deleting paragraph 2(e)(viii) on page 11, or supply particulars of the member of the wool industry referred to, and the time, date and place of the making of the reference.

The particulars supplied on the letter dated 8 August 1991 from Phillips Fox to Macphillamy Cummins and Gibson, identified by the words "As to paragraph (e)(i)" be struck out.

The defendant supply, within 21 days, the particulars requested in the letter dated 8 July 1991 from Macphillamy Cummins and Gibson to Phillips Fox identified by the words,

(i) "As to paragraph (e) - (ii), (iii), (iv) and (v)."
(ii) "As to paragraph (e)(iii) - (aa)"
(iii) "2. As to paragraph 7(b)"
(iv) "3. As to paragraphs 8(a) - 9(a) - and 10(c)"
(v) "4. In relation to paragraph 8(b) -9(b) - and 10(d),
(a) and (b)"
(vi) "5. In relation to paragraph 8(c) - 9(c) - and 10(e),
(a), (c) and (d)"
(vii) "7. In relation to paragraph 8(e) - 9(d) - and
10(f), (b)
(viii) "8. In relation to paragraph 8(f) - 9(f) - and
10(i), (c) and (d).

The defendant pay the plaintiff's costs of and incidental to this

application. Those costs are to include the costs of the efforts made by the plaintiff's solicitors to obtain the particulars ordered.

DECISION

This is a motion that certain paragraphs in a Defence, or particulars of them, be struck out, or alternatively that particulars or further particulars of the Defence be supplied.
The Action

2. The action is for damages for defamation. The defendant is the publisher of a weekly newspaper with a circulation throughout Australia, principally in rural areas, called the "Australian Rural Times".

3. The plaintiff was, at the relevant time, a member of the House of Representatives. The Labor Party was in Government. The plaintiff was not a member of the Labor Party. He was in opposition, being the Liberal Member for Barker, a rural seat in South Australia, and he held the post of Shadow Minister for Industry, Technology and Commerce.

4. At the time the Labor Minister for Primary Industry was Mr Kerin. There was a lot of public and political debate going on about whether the floor price scheme for selling wool should be continued in its then form, or whether the floor price should be allowed to drop.

5. The defendant published, under the evocative pseudonym of "Redback", the following article:

"Letter drop
AND while still on the subject of the continuing wool fall-out,
the one time messiah of the bush and now Liberal industry
spokesman, Ian McLachlan, is, in some rural circles, being
called the "Labor member for Barker" (His South Australian seat).
McLachlan appears to have earned the moniker after voicing
support for the floor price drop and Redback hears, for first
showing to John Kerin a letter intended for circulation to all
growers explaining the Liberal view on wool.
The letter never got sent."

6. The simple imputation alleged in the Statement of Claim was that "the plaintiff was a political traitor."

7. It is clear from the correspondence, and it was not in issue between the parties, that the plaintiff did not show to Mr Kerin a letter intended for circulation to wool growers. A draft of such a letter was sent from the office of Mr Hewson, Leader of the Opposition, to Mr Kerin, because Mr Kerin's approval was required for distribution of the letter through the Wool Corporation Mailing list. It was true that such a letter was not distributed to growers.

8. The Amended Defence was filed with the consent of the Plaintiff's solicitors, but it is not suggested that the right to obtain proper particulars, or to object to embarrassing allegations, is affected by that consent.

9. The Amended Defence is long and complex, principally because of the differences in the relevant law between the various States and Territories. Mercifully, many of the elements of which further particulars were sought are common to the various law districts.
Comment

10. Fair comment at common law and applicable statutory defences of which comment was an element were pleaded.

11. Particulars of comment relating to all those defences were set out in the Amended Defence as follows:

"1. The comment was based on the following facts, being facts
stated in the matter complained of:
(a) The plaintiff was an elected Member of the House of
Representatives for the Seat of Barker;
(b) The plaintiff was the Liberal Party Shadow Minister for
Industry, Technology and Commerce;
(c) The plaintiff had publicly stated he supported a
reduction in the floor price for wool;
(d) The plaintiff prepared or, alternatively, was aware of a
letter sent to wool growers setting out Liberal Party policy on
wool and the wool industry to be signed by John Hewson;
(e) The plaintiff showed, caused to be shown or
alternatively, was aware that others would and had shown the
letter in question to John Kerin, the Australian Labor Party
Minister for Primary Production;
(f) The letter in question was not sent.
2. All of the said material was proper material for comment.
3. The said material was proper material for comment because
it comprised facts truly stated.
4. The said material inherently related to the matters of
public interest stated above."

12. All the relevant defences are pleaded to the whole of the matter complained of. That matter seems to me to have three elements. First, that the plaintiff, to use the words of the article, "had earned the moniker of "Labor Member for Barker"." Secondly he earned it after voicing support for the floor price drop. Thirdly, he earned it for showing the letter to John Kerin.
Not Fact

13. The first requirement of a defence of comment is that the words must be comment, and not a statement of fact. (Gatley, 8th Ed. para 692.)

14. The allegation that he had earned the particular appellation could well amount to a comment about the plaintiff. I doubt, however, that to say that he earned it after voicing support for a floor price drop is a comment. It looks very like a statement of fact to me, namely that he did voice that support. But it is clear that the statement about the letter is a simple statement of fact, and could not possibly amount to comment in the context of the matter published.
Fair

15. Next, in paragraphs 5, 7, 8, 9, and 10, it is an element of the comment that it must be fair. In paragraph 6, founded upon the law in New South Wales, it is necessary that the comment be based upon proper material for comment and no other material.

16. In both those contexts I think that the conditions referred to in Gatley, 8th edition, para 709 must be met, namely, (a) the comment must be based on facts contained in or referred to in the publication, and (b) the facts must be sufficiently true to make the comment fair.

17. The facts set out in 1(a) and 1(b) of the particulars of comment obviously meet those two conditions, and are not in issue between the parties. That set out in 1(c), namely that the plaintiff had stated his support for a floor price reduction, is contained in the publication and its truth would properly be the subject of evidence at the trial.

18. But those facts set out as alternatives in 1(d) and 1(e) are neither contained in the publication nor referred to in it.

19. The only fact relating to the letter contained in or referred to in the publication is that the plaintiff showed it to Mr Kerin. That fact is acknowledged to be false. Every other fact is inconsistent with it. Additionally, none of the other facts are capable of justifying the comment.

20. I order subparagraphs 1(d) and 1(e) of the particulars headed "C. COMMENT" on page 11 of the Amended Defence to be struck out.

21. I have set out above my view about which part of the published matter is capable of amounting to comment. But the relevant paragraphs in the Amended Defence do not identify, nor do any of the particulars supplied, what part of it the defendant will allege to be comment, and what part facts on which the comment is based.

22. I propose to order the defendant to amend the defence so that it does so.
Qualified Privilege

23. The original defence filed on 5 October 1990 baldly asserted that the matter complained of was published on an occasion of qualified privilege.

24. By letters dated 11 January 1991 and 6 February 1991 the plaintiff sought detailed particulars of that defence. They were not supplied as quickly as the plaintiff's solicitors wanted them, and on 27 February 1991 they issued a Notice of Motion seeking an order that they be supplied.

25. On 11 March 1991 the defendant's solicitor consented to an order that the particulars sought be supplied on or before 19 March 1991.

26. Under cover of a letter dated 14 March 1991 the defendant supplied a draft of the proposed amended defence, asserting that adequate particulars were stated in it.

27. After some correspondence about the costs of the amendment the plaintiff's solicitors returned the Amended Defence to the defendant's solicitors, endorsed with a consent to its filing, but accompanied by a letter dated 16 May 1991, which pointed out that the particulars in the Amended Defence were insufficient.

28. The Amended Defence sets out a number of defences of qualified privilege. Qualified privilege at common law is set up in paragraphs 5(a) so far as publication in the Australian Capital Territory, Victoria and South Australia is concerned, in paragraph 6(a) for New South Wales, in paragraph 7(a) for the Northern Territory, and in paragraph 10(a) for Western Australia.

29. Paragraph 6 (a) of the Amended Defence does not state in terms, but the particulars at page 9 make it clear, that qualified privilege under S.22 of the Defamation Act 1974 of New South Wales is also relied upon. Qualified privilege under the respective codes in Queensland, Tasmania and Western Australia are set up in paragraphs 8(c),8(d), 8(e), 8(f), and 8(g), 9(c), 9(d), 9(e) and 9(f) and 10(e), 10(f), 10(g), 10(h), and 10(i) respectively.

30. The particulars of those allegations were set out in the Amended Defence as follows:

"B. QUALIFIED PRIVILEGE AND QUALIFIED PROTECTION
1. Qualified privilege at common law and qualified protection
The
defendant published the matter complained of pursuant to a social or
moral duty to do so and, specifically, to inform the public
concerning the matters referred to in the matter complained of.
Recipients of the matter complained of had an interest in receiving
the matter published because they were members of the public and
readers of the defendant's newspaper and because the matter
published related to the matters of public interest specified above,
being matters in which the recipients had an interest in having
information.
2. Qualified privilege under section 22, Defamation Act, New
South Wales and qualified protection - reasonableness of conduct
(a) The subject or subjects of the matter complained of were
the matters of public interest referred to above;
(b) The defendant relies upon both interest and apparent
interest;
(c) The reasonable grounds for the defendant's belief that
the recipients of the matter complained of had an apparent
interest was that the matter complained of related to the
subjects referred to above as matters of public interest and the
defendant believed that the recipients were members of the
public;
(d) That reasonable grounds for the defendant's belief that
the recipients were members of the public was that the defendant
publishes its newspaper to the public;
(e) The defendant's conduct was reasonable in the
circumstances because it believed what it published to be true
and took care to form a belief in the accuracy and fairness of
the information contained in the matter complained of. It was
satisfied as to the authenticity and accuracy of the sources of
the information available in preparing the matter complained of.
Further, the defendant was satisfied as to the fairness of the
language and the manner in which the matter complained of was
composed. In addition, the defendant had the following
information as at the time of publication of the matter
complained of:
(i) The plaintiff was an elected member of the House of
Representatives for the seat of Barker;
(ii) The plaintiff was the Liberal Party Shadow Minister
for Industry, Technology and Commerce;
(iii) The plaintiff had publicly stated he supported a
reduction in the floor price for wool;
(iv) The plaintiff prepared or, alternatively, was aware
of a letter to wool growers setting out Liberal Party policy on
wool and the wool industry to be signed by John Hewson;
(v) The plaintiff showed, caused to be showed or
alternatively, was aware that others would show and had shown
the letter in question to John Kerin who was the Australian
Labor Party Minister for Primary Production;
(vi) The letter in question was not sent;
(vii) Further, the defendant had learnt of the contents of the
letter in question prior to publication from a source which it
declines to name at the present time.
(viii) A member of the wool industry, whom the defendant
declines to name at this time, had referred to the plaintiff as
"The Labor Member for Barker"."

31. In their letter dated 16 May 1991 the plaintiff's solicitors protested about the attempts in sub-paragraphs 2(e) (vii) and (viii) to withhold the identity of the defendant's sources of information. By letter dated 28 June 1991 the defendant's solicitors asserted that the plaintiff was not entitled to that information.

32. Then by letter dated 8 July 1991 detailed particulars were sought. I refer to that letter in these reasons as "the request". By letter dated 8 August 1991 the defendant's solicitors supplied some additional information, but, in general, simply reiterated the matter in the Amended Defence, asserted that the request was not a proper request for particulars, or that it was a matter for evidence. I refer to that letter as "the response". On the hearing of the Notice of Motion Counsel for the defendant simply repeated those assertions.
Reasonable Conduct

33. The first matter remaining in contention arises from the particular numbered 2(e), relating to the reasonableness of the defendant's conduct. The request asked for particulars of the conduct of the first defendant which the defendant contended was reasonable in the circumstances. The response alleged was that the defendant relied upon the author's experience as a journalist, its prior dealings with him, and his reputation as a journalist.

34. Particulars of the conduct said to be reasonable is one thing. Particulars of the reasons why the conduct was reasonable are another. The terms of S.2(1)(c) of the Defamation Act make it clear that the only relevant conduct, that which must be reasonable, is the conduct of the publisher in publishing the material complained of, or, simply, the act of publication itself. The request numbered 1(e)(i) is not a proper request.
Reliance on Journalist

35. Paragraph 2(e) of the particulars on pages 9, 10 and 11 the Amended Defence, and the response of 8 August, both set out purported facts upon which the defendant proposes to rely in order to make that act of publication reasonable.

36. I agree that it is clear from Austin v Mirror Newspapers Ltd (1986) 1 AC 299 that the defendant cannot place reliance upon its own employee. It is the conduct of that journalist in deciding to promulgate the material that must be shown to be reasonable. That particular as set out in the response is struck out.
Defendant's Belief

37. Paragraph 2(e) then alleges, as other circumstances making its publication reasonable, that it believed what it published to be true, it took care to form a belief in its accuracy and fairness, it was satisfied about its sources, it was satisfied about the fairness of its language and it had information about a series of facts numbered (i) to (viii).

38. The request, in paragraph 1(e)(ii), asked for a statement of the facts and matters relied on to establish the belief, the identity of the individuals alleged to have it, and the facts and matters relied on to say that their belief could be imputed to the defendant.

39. The response, "as to the first part of the request," repeated its reliance on its journalist. As to the latter part it asserted that it was a matter for evidence.

40. The first part of that response cannot stand, for the reasons set out above. The second part is simply wrong. A corporation can only form a belief in the mind of some human being who bears some particular relationship to it. To ask who was that person, what was the relationship and what matters were relied on to form the belief are not mere matters of evidence, but proper particulars. The fact that giving the particulars may put the opponent on notice about a possible witness at the trial does not convert a proper request for particulars into a mere matter of evidence. I order that the particulars sought be supplied.
Defendant's Information

41. For similar reasons I order that the particulars sought in 1(e)(iii), (iv) and (v) be supplied.

42. Listed in the particulars filed as being part of the information that the defendant had at the time of the publication is item 1(e)(iii), "The plaintiff had publicly stated he supported a reduction in the floor price of wool." The request asked for "the usual Particulars of the information." The response was "This is a matter for evidence." What is meant by "Usual Particulars" is set out in the request. Not all of the elements of that definition are apt to describe what should be particularised, but a sufficient number of them are easily capable of being set out. It is obviously not a mere matter of evidence, and it is obviously a proper particular to be sought, and matter comprised within the request, to set out where, when and to whom the plaintiff was alleged to have made any such public statement or statements and insofar as any writing was involved to identify it. I order that the defendant provide these details.
The Letter Shown to Mr Kerin

43. The filed particulars in 1(e)(iv) and (v) relate to the plaintiff's dealing with the letter said to have been shown to Mr Kerin. Insofar as those particulars allege that the plaintiff showed it to him, the statement is contrary to the defendant's instructions to its advisers. Insofar as they relate to the plaintiff's awareness of its contents, or his awareness that someone else would or might show it to Mr Kerin, it is obviously incapable of being relevant to the reasonableness of publishing a statement that he, not someone else, was the one who showed it.

44. The defendant sought particulars about the defendant's information. It is clear to me, however, that the matter would cause embarrassment and undue complexity and expense at the trial, and I think it is preferable to order that those sub-paragraphs of the filed particulars be struck out.
Sources of Information

45. The letter of 16 May 1991 which returned the Amended Defence to the defendant's solicitors referred specifically to the fact that the defendant declined to name its sources of information in paragraphs (e)(vii) and (e)(viii) of the particulars of qualified privilege. No order was specifically sought with reference to them in the Notice of Motion, but in the letter dated 8 July 1991 the plaintiff's solicitors again insisted on their right, at least, to directions about the matter. Counsel for the plaintiff raised it at the hearing without objection. Counsel for the defendant did not make any submissions about it.

46. Paragraph (e) (vii) sets out that the defendant had learnt of the contents of the letter shown to Mr Kerin from a source which it declined to name.

47. Since I am about to order that the other paragraphs dealing with the letter be struck out, the source of the defendant's information about its contents becomes immaterial, and I order that paragraph also to be struck out of the particulars.

48. Paragraph (e) (viii) in effect asserts that the defendant's conduct in publishing was reasonable because, included in the information that it had at the time of publication was the fact that a member of the wool industry had referred to the plaintiff as "The Labor Member for Barker".

49. It is a question to be decided at the trial whether to publish such a statement about the plaintiff in fact defamed him.

50. If it did, it is of course, no defence for the defendant to say that it was repeating what someone else had said. That is not how I understand the defendant to be asserting the fact.

51. It is asserting that it acted reasonably in saying that the plaintiff was, in some rural circles, being called the "Labor Member for Barker", because it knew that a member of the wool industry had so referred to the plaintiff.

52. It that reference by that industry member was made privately and confidentially to the newspaper reporter there might be some occasion to enter into a learned dissertation on what is called "the newspaper rule", except that in that case that knowledge could not possibly justify the defendant in making the statement using the language that it did.

53. On the other hand, if the statement was made publicly, then there is no occasion for the application of the newspaper rule, and there is no reason why the defendant should not supply particulars of the person who made the reference, and when and where he did so. I order the defendant either to amend the particulars filed by deleting the subparagraph, or to supply the necessary particulars.
Public Conduct

54. Paragraph 7(b) of the Amended Defence sought to rely upon a statutory defence enacted in the Northern Territory, alleging that the publication was fair comment in respect of the public conduct of the plaintiff.

55. Particulars are sought at item 2 in the request identifying public conduct referred to. The response asserted that "all conduct of the plaintiff is alleged to be public," Obviously, the Court cannot allow to go to trial, a case where the defendant will be at liberty to justify comment on any behaviour of the plaintiff, no matter when or where it took place, and no matter how private and intimate it may have been. I order the usual particulars to be supplied.

56. For the same reasons I order particulars to be supplied of sub-paragraphs 8(a), 9(a) and 10(c), referred to at item 3 in the request.
Comment on Public Communication

57. Item 4 of the request relates to sub-paragraphs 8(b), 9(b), and 10(d) of the amended defence, which arise in the Code States, and allege that the matter published was fair comment respecting a communication made to the public on a certain subject. So far as is now relevant the request asked that the defendant (a) identify the communication and (b) give particulars of how it was made to the public;

58. The response was, as to (a) "See the particulars of comment", and as to (b) "This is a matter for evidence."

59. In my view the particulars of comment do not identify the communication relied upon.

60. I have already set out their additional defects in not identifying which part of the published matter is comment, and which statement of fact.

61. The request obviously seeks to identify the topic about which evidence will be led, and not the evidence itself. I order that the particulars sought be supplied.
Public Good

62. Paragraph 5 of the request relates to sub-paragraphs 8(c), 9(c) and 10(e) of the Amended Defence, which arise under the legislation in the Code States, and each of which alleges that the publication was made in good faith for the public good. The details sought were (a) the nature and extent of the public good; (c) the facts relied on to establish its existence; and (d) the facts relied on to say the publication was made for the public good. The response was that (a) was not a proper request for particulars, and that (c) and (d) were matters for evidence.

63. Those assertions are, in principle, obviously wrong. If there were no authority on the point they might, barely, be arguable.

64. But I have no hesitation in agreeing respectfully with Nettlefold J in Traill v ABC [1987] TASSC 1; (1988) Tas R 1 at 7, where he held that Leslie v Mirror Newspapers Ltd (1969) 91 WN (NSW) at 651, 652, Packer v Mirror Newspapers Ltd (1972) 2 NSWLR 68 and Ampol Petroleum v Shell Co of Australia Ltd (1966) 1 NSWR 180 should be followed on this point.

65. I order that the particulars sought be supplied.
Giving Information

66. Next, again in relation to the legislation in the Code States, sub-paragraphs 8(e), 9(d) and 10(f) set up allegations that the publication was made in good faith for the purpose of giving information to certain persons. The request at para 7 (h) asked the defendant to specify the information which it was the purpose of the defendant in conveying. The response refers back to the particulars of qualified privilege in the Amended Defence. Those particulars do not identify that information, as I read them. If they do, it is only by such a convoluted track through other matters incorporated into them by reference that I cannot follow it. At the hearing the terms of the request were simplified, so that in addition to the particulars of the information all that is now sought is a statement of the grounds which are alleged to be reasonable.

67. I order the defendant to specify the information referred to with directness and precision. The response also referred back to the defendant's reliance on its own journalist. As well as failing to answer the question asked, that response is not permissible, for reasons already given.
Public Discussion

68. Again, in relation to the Code States, sub-paragraphs 8(f), 9(f) and 10(i) of the Amended Defence set out that the publication was made in good faith in the course of discussion of subjects of public interest, the public discussion of which was for the public benefit.

69. Sub-paragraphs 8(a), (b), (c), (d) and (e) of the request sought particulars of the usual kind about the elements of that allegation. The only items on which the plaintiff now insists are 8(c) and 8(d). The details sought are not matters of evidence, as asserted on the defendant's behalf, and I order that they be supplied.

70. Paragraphs 8(f) and 10(i) of the amended defence also assert that insofar as the matter published consisted of comment, the comment was fair. The request at 8(f) asked the defendant to identify the portions which it will be alleged were comment.

71. The response was breathtaking in its ingenuity. It stated, "The parts of the matter complained of which are not alleged to be statements of fact are said to be matters of comment or mixed fact and comment."

72. Since the defendant has sedulously avoided stating what parts are and what parts are not alleged to be comment, it was also remarkably disingenuous. I order the defendant, for the purposes of this part of the pleading also, to identify which part of the matter published is alleged to be comment, and which part to be fact upon which the comment is based.
Discussion of Subjects of Public Interest

73. Paragraph 9 of the request relates to a defence arising under the codes in Queensland and Western Australia, pleaded in sub-paragraphs 8(g) and 10(h) of the Amended Defence.

74. The purport of the defence is that the publication was made in good faith for the purpose of the discussion of subjects of public interest, the public discussion of which was for the public benefit.

75. At 9(c) and (d) the request sought details of the facts relied on to show that the publication was made for the purpose of the discussion, and details of the discussion in the course of which the defamatory matter was published.

76. The response was to assert that the matter complained of itself constituted the discussion.

77. I think that the request misconceived the elements of the defence, but such is the imprecision of the drafting that such a result is understandable. It is not necessary that there be a pre-existing discussion, with which the matter complained of is projected, like a stone into a pond. The publication must be made for the purpose of discussing certain subjects. Particulars of the subjects may properly be sought, but when "the discussion of" is read as "in order to discuss" particulars of the discussion itself are not needed. I make no order in respect of this request.
QUALIFIED PRIVILEGE

78. Item 10 of the request seeks particulars of the common law privilege asserted in sub-paragraph 10(a) of the Amended Defence in respect of publication in Western Australia.

79. The defendant responded that the particulars were set out in paragraphs B1 of the particulars in the Amended Defence Counsel for the plaintiff, so far as I can understand my notes of the argument, made no complaint about those particulars of common law privilege, and if the defendant is happy to be restricted to them at the trial I do not see that I should help it prepare its case by ordering any further detail.

80. I make the following formal orders:

1. The Amended Defence be further amended in each
sub-paragraph in which comment or fair comment is pleaded, so as to
identify which part of the matter complained of is alleged by
the defendant to be comment and which part is alleged to be fact
upon which the comment is based.
The relevant paragraphs in the Amended Defence are 5(b),
6(c)(ii), 7(b), 8(a), 8(b), 8(f), 9(a), 9(b), 10(b), 10(c),
10(d), 10(h) and 10(i).
2. The following matter be struck out of the Particulars
which form part of the Amended Defence, namely:
(a) Sub-paragraphs 1(d) and 1(e) of the particulars headed
"C. COMMENT" on page 11.
(b) Subparagraphs 1(e)(iv) and (v) on page 10, and 1(e)(vii)
on page 11.
3. The defendant amend the particulars which form part of
the Amended Defence by deleting paragraph 2(e)(viii) on page 11,
or supply particulars of the member of the wool industry
referred to, and the time, date and place of the making of the
reference.
4. The particulars supplied in the letter dated 8 August
1991 from Phillips Fox to Macphillamy Cummins and Gibson,
identified by the words "As to paragraph (e)(i)", be struck out.
5. The defendant supply, within 21 days, the particulars
requested in the letter dated 8 July 1991 from Macphillamy
Cummins and Gibson to Phillips Fox identified by the words,
(i) "As to paragraph (e) - (ii), (iii), (iv) and (v)."
(ii) "As to paragraph (e)(iii) - (aa)"
(iii) "2. As to paragraph 7(b)"
(iv) "3. As to paragraphs 8(a) - 9(a) - and 10(c)"
(v) "4. In relation to paragraph 8(b) -9(b) - and 10(d), (a)
and (b)"
(vi) "5. In relation to paragraph 8(c) - 9(c) - and 10(e),
(a), (c) and (d)"
(vii) "7. In relation to paragraph 8(e) - 9(d) - and
10(f), (b)
(viii)"8. In relation to paragraph 8(f) - 9(f) - and
10(i), (c) and (d).

81. I do not think that a self executing order about default in supplying those particulars is called for, but the defendant's advisers should be aware that if they are not provided, and provided in time, solid arguments will be required to prevent the relevant defences from being struck out.

82. The plaintiff has succeeded in this application, with very few and very minor exceptions.

83. Counsel for the defendant was obviously under instructions to make no concessions, and I think these reasons make plain that he was often required to attempt to justify the insupportable. Many of the particulars that I have now ordered to be supplied were obviously covered by the terms of the order to which the defendant consented on 11 March 1991. No explanation is proferred for the failure to comply with that order, despite extensions of time granted by the solicitors for the plaintiff on request.

84. For those reasons I think that this case calls for an order for costs which leaves the plaintiff as little out of pocket as possible.

85. I order that the defendant pay the plaintiff's costs of and incidental to this application. Those costs are to include the costs of the efforts made by the plaintiff's solicitors to obtain the particulars ordered.

86. The basis on which those costs are to be taxed or assessed is as between solicitor and own client.