Francis Ivor Kelly v Nationwide News Pty Limited [1998] ACTSC 117 (23 October 1998)

Last Updated: 13 October 1999

FRANCIS IVOR KELLY v NATIONWIDE NEWS PTY LIMITED [1998] SCACT 117 (23 OCTOBER 1998)

CATCHWORDS

DEFAMATION - pleading a Polly Peck defence - whether permissible - relevant principles.

PRACTICE AND PROCEDURE - application to amend defence - whether the defendant may plead a Polly Peck defence, ie an imputation not pleaded by the plaintiff - relevant principles.

Defamation Act 1974 (Cth)

Woodger v Federal Capital Press (1992) 107 ACTR1

Kelly v Special Broadcasting Services & Anor (1990) VR 69

Hart v Wrenn (1995) 194 FLR 135

Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; (1998) 154 ALR 294

Polly Peck Plc v Trelford [1986] QB 1000

Hadzel v De Waldorf (1970) 16 FLR 174

Allsop v Church of England Newspaper Ltd [1972] 2 QB 161

Lewis v Daily Telegraph Ltd [1964] AC 234

Taylor v Jecks (1993) 10 WAR 309

Barclay v Cox [1968] VR 664 at p666

FRANCIS IVOR KELLY v NATIONWIDE NEWS PTY LIMITED

No. SC 235 of 1994

Coram: Gallop A/CJ

Supreme Court of the ACT

Date: 23 October 1998

IN THE SUPREME COURT OF THE )

) No. SC 235 of 1994

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: FRANCIS IVOR KELLY

Plaintiff

AND: NATIONWIDE NEWS PTY LIMITED

Defendant

O R D E R

Judge Making Order: Gallop A/CJ

Where Made: Canberra

Date of Order: 23 October 1998

THE COURT ORDERS THAT:

1. The application be refused.

1. By notice of motion dated 8 April 1998 the defendant sought leave to amend its defence into the form annexed to the notice of motion. Other orders were sought in the notice of motion but they are not relevant for present purposes.

2. The motion came on for hearing on 4 May 1998. It was opposed by the plaintiff. The action is for defamation in relation to an article which appeared in "The Weekend Australian" of 12-13 February 1994 entitled "Ex-Customs officer relives nightmare". The action was commenced by writ of summons issued on 14 April 1994. The statement of claim was filed on 16 June 1994. The defence was filed on 28 July 1994 and the pleadings were closed by the filing of the plaintiff's reply on 29 November 1996.

3. By his statement of claim the plaintiff pleaded that in its natural and ordinary meaning the matter complained of was defamatory of the plaintiff and conveyed a number of imputations. Further, the plaintiff alleged that the matter complained of otherwise than in its natural and ordinary meaning conveyed a number of imputations defamatory of the plaintiff.

4. By its defence, the defendant admitted publication of the material complained of and denied that it was or was capable of being defamatory of the plaintiff, that in its natural or ordinary meaning or otherwise it conveyed or was capable of conveying the imputations alleged to be defamatory imputations. The defendant further pleaded that so far as publications in the Australian Capital Territory, Victoria and South Australia are concerned, the matter complained of was published upon an occasion of qualified privilege and was fair comment on a matter of public interest. The defendant further pleaded in relation to New South Wales qualified privilege at common law and pursuant to the Defamation Act 1974 (Cth), comment on a matter of public interest. There were other specific pleadings in relation to publication in Queensland, Tasmania, Northern Territory and Western Australia.

5. The amendment sought by the defendant is as follows,

"11. Further and alternatively in answer to the whole of the Statement of Claim, the defendant says:

(a) At the time of publication of the matter complained of, the plaintiff was about to, or had just, resigned as the Comptroller-General of Customs after a long career as a senior officer in the Australian Customs Service;

(b) The matter complained of related to the affairs of the Australian Customs Service, which was a public authority obliged to report to a responsible minister, and the plaintiff's performance in his office as Comptroller-General of that body and, at the time of the "colour television affair", New South Wales Comptroller;

(c) For the reasons set out in (a) and (b) above, the matter complained of constituted a communication on a government or political matter;

(d) The matter complained of further related to the following matters:

(i) pressure applied to a former customs officer, Mr Tony Mayhew, by members of the Customs Service in relation to a notorious incident where Mr Mayhew attempted to question a former government minister, Mr MacKellar, who had not declared a colour television set at Customs at Sydney Airport ("the colour television affair");

(ii) Mr Mayhew came under severe pressure from officers of the Customs service to alter his statements that the minister's television was a colour television and therefore dutiable, and notwithstanding this pressure, the government of the day was forced to reveal publicly after the incident that the television set was in fact a colour television and therefore dutiable;

(iii) the plaintiff accepted, contrary to Mr Mayhew's advice, and contrary to what was subsequently found to be the correct position, that the television set was a black and white television set;

(iv) unrelenting pressure on Mr Mayhew by senior officers of the Customs Service to agree that the television set was black and white;

(v) the findings about the Customs Service in the Conroy Report;

(vi) the plaintiff's subsequent career;

(e) In the premises of (d) above, and in the premises of the whole of the matter particularised in (a) to (d), the matter complained of constituted a communication on government and/or political matters, and was accordingly published on an occasion of qualified privilege at common law;

(f) The publication of the matter complained of was reasonable in the circumstances.

Particulars

(i) The defendant had the following information:

(as per particulars of information already provided)

(ii) The defendant had reasonable grounds for believing the matter complained of was true, being the information referred to in (i) above.

(iii) The defendant took proper steps to verify the accuracy of the material being the interviews with Mr Mayhew and Mr Bennett and the receipt and consideration of all of the material referred to in (i) above.

(iv) The defendant's servant believed the matter complained of to be true.

12. Further and alternatively, the defendant says that if the matter complained of conveyed defamatory imputations of and concerning the plaintiff as alleged in paragraphs 4 and 5 of the Statement of Claim, which is denied, then the defendant says that the matter complained of conveyed the following imputations of and concerning the plaintiff:

(a) That the plaintiff had behaved negligently in his post as New South Wales Comptroller of Customs in that, although an experienced Preventive Officer, Mr Tony Mayhew, had witnessed a Federal Minister, Mr MacKellar, being cleared through customs in circumstances that suggested favouritism, the avoidance of duty and the commission of offences by the Minister, the plaintiff refused to accept Mr Mayhew's eyewitness account of the incident and accepted as true a contrary account indirectly conveyed to him by Minister MacKellar subsequently, and failed to make further enquiries to elicit the truth of the matter, namely that the television was in fact a colour set and dutiable.

(b) That in consequence of the plaintiff's discreditable failure to properly investigate Minister MacKellar's importation of a dutiable item, Mr Tony Mayhew had been repeatedly harassed by the plaintiff's subordinates, such harassment constituted by repeated attacks on Mr Mayhew over his insistence that the item was dutiable.

(c) That while the plaintiff was the New South Wales Comptroller of Customs, his subordinates, including his direct subordinate Alan Williams, had harassed Mr Tony Mayhew in order to get Mr Mayhew to drop his insistence that Minister MacKellar's television was a colour set.

(d) That the plaintiff's conduct amounted to pressure on Mr Tony Mayhew to drop his insistence that Minister MacKellar's television was a colour set.

(e) That notwithstanding his prompt resignation from the post of Comptroller General of Customs after a report highly critical of the Bureau of Customs, the plaintiff had immediately been given another well-remunerated post, while Mr Tony Mayhew had suffered both physically and financially on account of the plaintiff's poor management of the "colour television affair"; and

(f) The imputations complained of related to matters of public interest and/or were published on an occasion of qualified privilege;

(g) Each of the imputations (a) to (e) was published contextually to the imputations complained of by the plaintiff, was a matter of substantial truth, and related to a matter of public interest and/or was published on an occasion of qualified privilege; and

(h) By reason that those contextual imputations are matters of substantial truth, such of the imputations complained of as are found to arise do not further injure the reputation of the plaintiff.

13. Further and alternatively, in so far as and to the extent that the matter complained of was published of and concerning the plaintiff in the Australian Capital Territory, Victoria, South Australia, Western Australia, the Northern Territory, Queensland and Tasmania and was defamatory of the plaintiff (which is denied), the matter complained of conveyed the following imputations of the plaintiff:

(a) That the plaintiff had behaved negligently in his post as New South Wales Comptroller of Customs in that, although an experienced Preventive Officer, Mr Tony Mayhew, had witnessed a Federal Minister, Mr MacKellar, being cleared through customs in circumstances that suggested favouritism, the avoidance of duty and the commission of offences by the Minister, the plaintiff refused to accept Mr Mayhew's eyewitness account of the incident and accepted as true a contrary account indirectly conveyed to him by Minister MacKellar subsequently, and failed to make further enquiries to elicit the truth of the matter, namely that the television was in fact a colour set and dutiable.

(b) That in consequence of the plaintiff's discreditable failure to properly investigate Minister MacKellar's importation of a dutiable item, Mr Tony Mayhew had been repeatedly harassed by the plaintiff's subordinates, such harassment constituted by repeated attacks on Mr Mayhew over his insistence that the item was dutiable.

(c) That while the plaintiff was the New South Wales Comptroller of Customs, his subordinates, including his direct subordinate Alan Williams, had harassed Mr Tony Mayhew in order to get Mr Mayhew to drop his insistence that Minister MacKellar's television was a colour set.

(d) That the plaintiff's conduct amounted to pressure on Mr Tony Mayhew to drop his insistence that Minister MacKellar's television was a colour set.

(e) That notwithstanding his prompt resignation from the post of Comptroller General of Customs after a report highly critical of the Bureau of Customs, the plaintiff had immediately been given another well-remunerated post, while Mr Tony Mayhew had suffered both physically and financially on account of the plaintiff's poor management of the "colour television affair";

and each of the imputations was true in substance and in fact; and in the ACT, Queensland, Tasmania and Western Australia it was, in addition, for the public benefit that such matter should have been published.

PARTICULARS - IMPUTATION (A)

A. Between about 5 October 1981 and 19 October 1981, the plaintiff was informed of the following matters:

(i) On or about 5 October 1981 Mr Peter [sic] Mayhew ("Mayhew") a Senior Preventative Officer in the Bureau of Customs, noticed a television set in possession of Mr MacKellar, the Federal Minister for Health, as MacKellar passed through Customs at Sydney Airport;

(ii) Mayhew claimed that he was told by the Minister that the television was colour, the declaration apparently signed by the Minister did not declare the television;

(iii) Mayhew thereupon made a "marshall's intuitive election" and directed MacKellar to a junior officer for processing of his baggage;

(iv) The supervising Preventive Officer, Pattison, cancelled the inspection and allowed MacKellar to pass through Customs.

B. The plaintiff was informed of these matters:

(i) By minute paper dated 5.10.81 handwritten by SPO Pattison;

(ii) By minute paper dated 19.10.81 directed to the plaintiff from Mr J M Drury, Senior Assistant Collector, Services;

(iii) By oral or other written communications made to the plaintiff which the defendant cannot particularise without interrogatories, but which are apparent, inter alia, from the contents of a minute directed to the plaintiff from Mr J M Drury, Senior Assistant Collector, Services, dated 19.10.81, from a minute written by the plaintiff directed to Mr Sullivan, Assistant Collector, Air Services, dated 13.10.81 and from a minute paper dated 16.4.81 from Head of Department, Mr Hayes, to the Minister, Mr Moore;

C. The failure by Minister MacKellar to declare that he was in possession of a television set may have constituted an offence;

D. The inspection undertaken by the junior officer would have ascertained, had it been allowed to proceed, whether duty was payable on the television;

E. The plaintiff was informed in circumstances that cannot be fully particularised until interrogatories, that Minister MacKellar had told Minister Moore, who had told Besley, who had told Montgomery, that the television was black and white

F. The plaintiff thereafter expressed the view that his own officer, who was an eyewitness, must have been wrong, and that there was no reason to doubt that the television was black and white;

G. On that basis, the plaintiff refused to seek to have an officer view the set to resolve the matter;

H. The plaintiff rejected referral of the matter to the internal affairs unit, on the same basis;

I. The plaintiff at no time asked for a report to be provided by Mayhew.

PARTICULARS - IMPUTATION (b)

A. Mayhew was repeatedly told by officers of the Bureau of Customs not to make any fuss about the clearance of MacKellar, and to accept that he was mistaken in asserting that the television was colour, including by Drury, by Mr J Tuite, A/g Chief Inspector, Special Services, Mr A Williams, A/g SAC, and by the plaintiff. Some time after the events of October 5 1981, but before the matter became public, Mr Tuite had met with Mayhew in the office of the plaintiff (the plaintiff was not present) at which time Mayhew was shown part of a minute containing words to the effect "SPO Mayhew should be informed that he badly erred in his judgment over Mr MacKellar's television set which has now been examined and is black and white". Mayhew asked to see higher authority and was taken to SAC Williams, who behaved threateningly to Mayhew, again showed him the extract of the minute referred to above, told him that he wasn't allowed to see the rest of it, and told him "I'm warning you to look out for yourself" and to "keep your bloody mouth shut" about the affair.

Later, the Head of Internal Affairs, Mr Kennedy, approached Mayhew and said words to the effect "I've met with the Minister. The set was black and white", when he had not in fact done so.

PARTICULARS - IMPUTATION (c)

A. (As per imputation (b).)

PARTICULARS - IMPUTATION (d)

A. The particulars of Imputation (a) are repeated.

B. The plaintiff directed or acquiesced in a direction that Mr Mayhew be told that the television was a black and white set, and that no further action would be taken, and did not revoke this direction, in spite of becoming aware that Mr Mayhew continued to insist that he was correct.

C. The conduct referred to above was calculated to cause Mr Mayhew to drop his insistence that the television set was colour.

PARTICULARS - IMPUTATION (e)

A. Upon the release of the Conroy Report into the Bureau of Customs, which was sharply critical of senior management of the Bureau, and recommended the abolition of the position of Comptroller-General, which the plaintiff then held, the plaintiff immediately resigned, but was immediately given a government consultancy. Mayhew's mental and physical health broke in consequence of the treatment he received at the time of the "colour television affair", including the refusal by the plaintiff to take steps to investigate Mayhew's assertion at the time that the television was colour and dutiable.

14. ..."

6. The court may at any stage of proceedings give leave to any party to amend any document of that party in the proceedings in such manner and in such terms as the court thinks fit (Order 32 rule 1 of the Supreme Court Rules).

7. The amendments sought by the defendant raise defences of qualified privilege and defences which are labelled Polly Peck or contextual imputations. As Miles CJ observed in Woodger v Federal Capital Press (1992) 107 ACTR1, at p21,

"What these defences have in common is an assertion by the defendant of a meaning which is wholly or partly different from that asserted by the plaintiff which is admitted or proved to be defamatory of the plaintiff, and which the defendant claims to justify by reason of its truth (and in the Australian Capital Territory its publication for the public benefit). These defences are all open to abuse because they are capable of converting a modest and narrow claim by a plaintiff into a wide-ranging expansive and expensive inquiry the limits of which are set by the defendant's capacity to pay for it."

8. The plaintiff, through his solicitors, objected to the filing of the proposed amended defence unless a number of conditions were satisfied including,

1) The defendant provide answers to interrogatories filed 3 March 1997;

2) The defendant provide particulars of the then proposed amended defence; and

3) The plaintiff be given the opportunity to consider the material generated for such purposes, see letter dated 20 March 1997 from the plaintiff's solicitors to the defendant's solicitors, document 32 in the Schedule of correspondence referred to in the affidavit of William Brian Loftus sworn 8 April 1998.

9. The particulars referred to above have not been provided. On 20 November 1997 the court made consent orders including that the defendant have leave to file any amended defence by 5 December 1997. The defendant failed to comply with that order. The plaintiff's interrogatories dated 28 February 1997 were not answered until 8 December 1997. The plaintiff served a certificate of readiness on the defendant on 9 January 1998 which was returned by the defendant's solicitor uncompleted because the defendant was still intending in all probability to seek to amend its defence in due course. On 28 January 1998 the defendant's solicitor advised the plaintiff's solicitor that it was not prepared to execute the certificate of readiness and forwarded a proposed amended defence and the plaintiff's consent to its being filed. The plaintiff reserved his consent.

10. On 3 March 1998 the plaintiff's solicitors applied to the Registrar for a date for a listing conference. The application to the Registrar has been adjourned pending this motion. The submissions of the plaintiff in opposition to the application to amend include that at no time prior to delivery of the proposed amended defence in January 1998 had the defendant given any notice of its intention to plead the matters in paragraphs 12 and 13 of the proposed amended defence. Further, these matters rely upon material that was in the defendant's possession at least by 1994 and not later than September 1996 and there is no adequate explanation as to why they were not pleaded between April 1994 and February 1998 or September 1996 and February 1998.

11. It was submitted that the plaintiff would suffer unfair prejudice by the inevitability of much longer and more expensive litigation. Further, as the material complained of relates to incidents which occurred some 16 years ago, to require the plaintiff to meet a charge of neglect of duties would be so oppressive as to weigh down the interests of justice in the plaintiff's favour by disallowing the amendment.

12. It was further submitted that in any event, the amendments are demurrable in that,

1) The matter complained of is not capable of conveying the imputations pleaded; and

2) If the imputations do arise they do not equal or overreach the imputations pleaded by the plaintiff (Kelly v Special Broadcasting Services & Anor (1990) VR 69 and Hart v Wrenn (1995) 194 FLR 135).

13. The defendant responded to those submissions by asserting that a period of eighteen months delay in the pleadings of the matter was due to the plaintiff's inaction and that this delay is far worse than any delay on the part of the defendant. It was contended that Mr Loftus, solicitor for the defendant, did not see the Mahony Report until he saw the Customs files and the plaintiff had been resisting such an inspection for nine months. In the circumstances, Mr Loftus could not be expected to know what documents were in the Mahony Report.

14. It is unnecessary to dilate further upon the response of the defendant to the plaintiff's assertions.

15. Subsequent to my reserving my decision in the matter, the parties raised by way of further submissions the decision of the High Court of Australia in Chakravarti v Advertiser Newspapers Limited [1998] HCA 37; (1998) 154 ALR 294. The plaintiff's contention was that, applying that decision, it is not permissible to raise a Polly Peck defence. Reference was made to the following passage in the joint judgment of Brennan CJ and McHugh J. First, their Honours referred to the practice in Courts in England and Australia, as a result of the decision of the English Court of Appeal in Polly Peck Plc v Trelford [1986] QB 1000, of permitting a defendant to plead a meaning different from that contended for by the plaintiff and then justifying that different meaning. Their Honours cited a passage, at p298, from the judgment of O'Connor LJ where his Lordship said,

"In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true and to give particulars o the facts and matters upon which he relies in support of his plea, as he is required to do by RSC, Ord 82. It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain.

Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification.

Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication.

What I have said in the context of justification can be applied by a parity of reasoning to fair comment, subject to what I say at the end of this judgment."

16. Their Honours held that such an approach is contrary to the basic rules of common law pleadings and in many contexts will raise issues which can only embarrass the fair trial of the action. Their Honours went on to say, at p299,

"Leaving aside technical pleas such as pleas in abatement, defences are either by way of denial or confession and avoidance. A defence which alleges a meaning different from that of the plaintiff is in the old pleading terminology an argumentative plea of Not Guilty. Under the principles of pleading at common law, it could tender no issue and would be struck out as embarrassing. Under the modern system, articulating an alternative meaning could conceivably make explicit the ground for denying a pleaded imputation. But it would be only in such a case that a defendant's plea of a new defamatory meaning might be supportable as a plea which prevents the plaintiff being taken by surprise. A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication. In our view, the Polly Peck defence or practice contravenes the fundamental principles of common law pleadings. In general it raises a false issue which can only embarrass the fair trial of the action."

17. Their Honours went on to cite various authorities which support the above dicta. It is interesting to note one of those authorities, namely, Hadzel v De Waldorf (1970) 16 FLR 174 at p182 where Fox J said,

"Ö a judge can find for the plaintiff on a nuance of meaning not put by him, but it would be a strange reversal of ordinary practice, and possibly very unfair to one or both parties, for the judge to find that the plaintiff was defamed in some way not averred by the plaintiff." (emphasis added)

18. Thus, the plaintiff submitted in his further written submissions, this Court should not allow the proposals set out in paragraphs 12 and 13 for the reasons that such pleading,

(a) is contrary to the basic rules of common law pleadings;

(b) is not pleading a good defence; and

(c) would raise issues which would embarrass the fair trial of the action.

19. The defendant's response, as set out in its written submissions, was to the effect that Chakravarti (supra) raises no issue which affects the determination of the defendant's application to amend. It was submitted that their Honours' comments were obiter and do not appear to have been made upon the basis of full argument of the correctness of the decision in Polly Peck. Their Honours did not address, so the argument went, the supplementary principle that, by reason of the truth of the defendant's pleaded imputations, such of the plaintiff's imputations as arise do not further injure his reputation.

20. It was further submitted that the correctness of Polly Peck Plc v Trelford (supra) has yet to be fully argued and determined by the Court. Counsel for the defendant made reference to a number of decided cases in which the defence has been applied.

21. In my opinion, there is some force in the defendant's contention that Polly Peck has not been fully argued and considered in the Chakravarti case. But it is necessary to go to the issues in that case.

22. Chakravarti sued Advertiser Newspapers Limited for defamation in the Supreme Court of South Australia. He sued on two separate articles published in the Advertiser Newspaper, the first on 15 July and the second on 18 July 1992 (the "first article" and the "second article" respectively). The articles were based on evidence given to the Royal Commission established in March 1991 to investigate the near collapse of the State Bank of South Australia. The first article was based on oral evidence given to the Royal Commission by Mr David Simmons, a former Chairman of the State Bank. The second was based on a file note made by Mr Simmons and received in evidence by the Royal Commission. The oral evidence and the file note were directed to the affairs of Beneficial Finance Corporation Ltd (Beneficial), a subsidiary of the State Bank, and four of Beneficial's former senior executives. Mr Chakravarti was one of those executives.

23. In his amended statement of claim Mr Chakravarti set out those parts of the articles upon which he sued, assigning particular meanings to each article. The Advertiser contended in its Third Further More Explicit Defence that the articles did not bear the meanings pleaded or any other meaning defamatory of Mr Chakravarti. Alternatively, it pleaded that the articles each bore a specific meaning different from those pleaded in the Amended Statement of Claim and that, so understood, they were true in substance and in fact. It also pleaded that each article was a fair and accurate report of the proceedings of the Royal Commission, and thus, privileged both under s7 of the Wrongs Act 1936 (SA) and at common law.

24. Mr Chakravarti's Fourth Further Amended Reply denied that either article was a fair and accurate report of the proceedings of the Royal Commission and asserted that, in any event, the Advertiser could not claim protection under s7 of the Act because it failed to publish letters he had written by way of reply as required by that section.

25. The matter came on for hearing before Cox J who, in accordance with South Australian practice in defamation matters, sat without a jury. Without making specific findings as to the meanings pleaded in the Amended Statement of Claim, his Honour held that both articles bore imputations which were defamatory of Mr Chakravarti. He further held that the Advertiser had not made good its defences of justification and fair report. Damages were awarded accordingly in respect of both articles.

26. The Advertiser appealed from the decision of Cox J to the Full Court. Mr Chakravarti cross-appealed on the ground that the amounts awarded by way of general damages were manifestly inadequate. The Full Court held by majority that Mr Chakravarti was not entitled to succeed on the first article because it was not capable of bearing the meanings pleaded in his Amended Statement of Claim. However, the Full Court was unanimous in the view that he was entitled to succeed on the second. It was held, again unanimously, that, although he was entitled to succeed on that article, he could recover damages only in respect of the imputations which arose from those parts which did not fairly report the proceedings of the Royal Commission. In the result, the Advertiser's appeal was allowed in part, Mr Chakravarti's cross-appeal was dismissed, and a judgment of $40,000 plus interest was substituted for that entered at first instance. Mr Chakravarti appealed to the High Court and the Advertiser cross-appealed.

27. In his separate judgment, Kirby J identified the ultimate issues for the determination of the High Court and, in particular, he identified the defamation issue: were the matters complained of capable of bearing the defamatory imputations found? And the imputation issue: if so, were the defamatory imputations so pleaded by the appellant or, alternatively, could the appellant rely upon them within his pleading?

28. In my opinion, that is the context in which the dicta of Brennan CJ and McHugh J have to be scrutinised and applied by all other courts in Australia. It is noteworthy that the pleading of the Advertiser was not criticised by Gaudron and Gummow JJ, nor by Kirby J in their respective separate judgments. Brennan CJ and McHugh J, at the commencement of their joint judgment, set the scene for the dicta which follow in their judgment. They said that the first matter where a defendant pleads a defence of fair and accurate report in answer to an action for defamation is for the tribunal of fact to determine what meanings the publication has before it determines the fairness of the report. The reason for that is that until the defamatory meaning of the publication is determined, it is not possible to know whether the report is an answer to the plaintiff's claim. A defendant does not lose a defence of fair and accurate report because it is inaccurate in respect of a distinct defamatory imputation which the plaintiff does not sue upon. A plea of fair and accurate report is a plea in confession and avoidance of the plaintiff's claim. Until the plaintiff's claim is defined, the tribunal of fact cannot know what the plea confesses and avoids. Nor can the court determine whether the report in defaming the plaintiff is nevertheless fair. It was in those circumstances that their Honours considered the defendant pleading and justifying imputations which the plaintiff had not pleaded.

29. In his separate judgment, Kirby J set out the principles relevant to the imputations pleaded and considered whether it was open to the respondent in Chakravarti to assert that the appellant was strictly confined to the imputations which he had pleaded in his Amended Statement of Claim. His Honour referred to the practice in some jurisdictions for each imputation upon which a plaintiff relies in a defamation action to be put forward. He observed that, for example, in New South Wales each imputation is a separate cause of action to which the publisher must separately plead. For some time, courts in common law countries, including Australia, have made it clear that they favour a practice by which a plaintiff in a defamation action pleads or particularises the meanings which will be attributed at the trial to the matter complained of. This is not a rigid rule. Sometimes it will be sufficient for a plaintiff to plead the offending publication and nothing more because of the clear defamatory meaning appearing on its face. However, where the meaning of the words sued upon may have overtones outside ordinary understanding and dictionary definitions, it has commonly been considered to be desirable (and sometimes necessary) that the plaintiff give particulars of the meanings which will be alleged at the trial. Doing so may assist the defendant to know whether to plead justification or fair comment, whether to apologise and what issues may be expected at the trial (Allsop v Church of England Newspaper Ltd [1972] 2 QB 161 at p167 per Lord Denning MR; Lewis v Daily Telegraph Ltd [1964] AC 234 at p275; Taylor v Jecks (1993) 10 WAR 309 at p314; Barclay v Cox [1968] VR 664 at p666).

30. In some jurisdictions where the matter is not regulated by statute, courts have commonly exercised a measure of discretion and flexibility where the essence of the sting of the defamation complained of at the end of the trial does not exactly, or entirely, coincide with the imputations which were pleaded. In part, this approach reflects the modern attitude to pleading of civil causes by which overly pedantic or rigidly technical rules tend to be avoided where they would inhibit the attainment of justice. In part, it arises from the recognition by courts of the way in which pleading is commonly done. In part, it arises from a recognition of the ample power of the trial judge to protect a defendant from injustice by ordering further particulars before the trial or by adjourning or terminating the hearing if that course is needed to prevent surprise or injustice.

31. Lastly, Kirby J said that in an attempt to reconcile the desirable encouragement of particularisation of claims, the avoidance of trial by ambush, and the consideration of the entirety of the publication in question, the courts will uphold the discretion of the trial judge, including a discretion to confine the parties to the imputations pleaded, where that is required by considerations of fairness. A more serious allegation will generally be taken to include a less serious one unless the latter is of a substantially different kind.

32. It seems to me that in the context of the issues which arose in Chakravarti, Brennan CJ and McHugh J were laying down the way in which the imputations to be determined at trial may be raised on the pleadings. The gravamen of their dicta is that the imputations to be determined may not be raised by way of pleading by the defendant.

33. In the circumstances, it would be courageous for any trial judge to ignore the dicta of their Honours in this area. I have come to the conclusion that the objections raised by the plaintiff to the proposed amendments to the defence should be upheld.

34. The application is refused.

35. I shall hear counsel on the question of costs.

I certify that this and the eighteen (18) preceding pages are a true copy of the Reasons for Judgment herein of his Honour, A/Chief Justice Gallop.

Associate:

Date: 23 October 1998

Counsel for the Plaintiff: Ms P A Bergin

Instructing Solicitors: Colquhoun Murphy

Counsel for the Defendant: Mr T D Blackburn

Instructing Solicitors: Clayton Utz

Dates of hearing: 4 May 1998

Date of judgment: 23 October 1998