Parer v John Fairfax Publications Pty Limited [1998] ACTSC 85 (21 August 1998)

Last Updated: 13 October 1999

Parer v John Fairfax Publications Pty Limited

[1998] SCACT 85 (21 August 1998)

CATCHWORDS

PRACTICE AND PROCEDURE - Defamation action - Interlocutory application - Application to strike out imputations in Statement of Claim - Whether incapable of arising from matter complained of - Test to be applied - Differences between NSW and ACT jurisdictions in approach to pre trial applications to strike out.

Griffith v ACP Publishing Pty Ltd ACN 053 273 546 (Unreported, Supreme Court ACT, Higgins J, 21 December 1993)

General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125

Baffsky v John Fairfax and Sons Ltd [1991] ACTSC 58; (1991) 106 FLR 21

Robert Swan v Federal Capital Press of Australia (unreported, Supreme Court ACT, Master Hogan, 12 March 1993)

No. SC 224 of 1998

Coram: Master T Connolly

Supreme Court of the ACT

Date: 21 August 1998

IN THE SUPREME COURT OF THE )

) No. SC 224 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: WARWICK RAYMOND PARER

Plaintiff

AND: JOHN FAIRFAX PUBLICATIONS

PTY LIMITED

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 21 August 1998

THE COURT ORDERS THAT:

1. The Notice of Motion dated 4 August 1998 be dismissed.

2. Written submissions in relation to costs to be filed and served within 14 days.

1. This is an application by the defendant to strike out the imputations pleaded and particularised by the plaintiff in his statement of claim. The claim is for damages for defamation arising out of the alleged publication by the defendant of an article in the Sydney Morning Herald on 21 March 1998 entitled "$60m coal sale linked to visit by Parer." The matter complained of is annexed to these reasons.

2. The plaintiff is and at the time of the publication was a Liberal Senator for Queensland and Minister for Resources and Energy in the Commonwealth Government. The pleadings before me, in the form of a Further Amended Statement of Claim filed on 18 June 1998 allege that the matter complained of in its natural and ordinary meaning is defamatory of the plaintiff, and particularise this claim as follows.

"Particulars of Imputations

(a) That the plaintiff has wrongfully profited from his public position as a Minister for the Crown in bringing influence to bear upon trading partners of the coal mine that his family has an interest in;

(b) That the plaintiff wrongfully preferred his own self interest to that of the Australian people as a Minister of the Crown;

(c) That the plaintiff was dishonest;

(d) That the plaintiff was not a fit and proper person to hold the position as Minister of the Crown; and

(e) That the plaintiff acted dishonourably by allowing himself to remain in the position as Minister for the Crown with the responsibility for coal exports when he had failed to disclose a private interest of his family in coalmining ventures which stood to gain from his position as Minister."

3. The defendant, by Notice of Motion of 4 August 1998, seeks to strike out the whole of imputations (a) to (e). The defendant said that it would, in the circumstances, be appropriate to give the plaintiff leave to replead the cause of action in what the defendant says would be a proper form.

4. The argument before me essentially turned on the proper approach to be adopted in this jurisdiction to pre trial applications to strike out imputations. It is to be observed at the outset, as was common ground between the parties, that there is a difference between the way a defamation action is pleaded in the Australian Capital Territory and New South Wales. In New South Wales the relevant legislation makes the publication of each imputation a separate cause of action (New South Wales Supreme Court Rules Pt 67; Australian Defamation Law and Practice, Tobin & Sexton, 25,070). The Australian Capital Territory operates in this regard under the common law. In former times it may have been considered appropriate to merely plead the matter complained of, but it is now clearly necessary for a plaintiff in a defamation action to make it clear which defamatory imputations he relies upon. As Higgins J noted in Griffith v ACP Publishing Pty Ltd ACN 053 273 546 (Unreported, Supreme Court ACT, 21 December 1993):

"In Hadzel v De Waldorf (1970) 16 FLR 174, Fox J held that a defendant was entitled to have the defamatory imputations alleged by the plaintiff particularised as precisely as possible."

A plaintiff thus pleads in this Territory an assertion that they have been defamed by the matter complained of, and then sets out the imputations by way of particulars.

5. Counsel for the plaintiff argued that where an application to strike out an imputation at an interlocutory stage is brought in this jurisdiction, the court should be guided by the test laid down by Barwick CJ in General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125 in relation to an application to strike out an action at an interlocutory stage. His Honour there said (at 129) that a 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'."

6. In Griffith, Higgins J noted that, where at an interlocutory stage in a defamation action an application was brought to strike out imputations on the ground that they were incapable of arising from the manner complained of,

"To make out that objection, the defendant must satisfy the test enunciated by the High Court in General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125. That is, it must be manifest that the imputations do not arise. If it is seriously arguable that an imputation arises from the matter complained of, it should stand."

7. Counsel for the plaintiff invited me to follow the course adopted by Higgins J in Griffith, and having accepted the test of law set out above, to briefly examine the material complained of in order to form the view that the imputations pleaded at the very least are seriously arguable to be capable of arising from the matter complained of. Having reached this point, he argued that I should then find that the pleadings should stand and dismiss the strike out application.

8. Counsel for the defendant argued that I should find that the differences between pleading in New South Wales and the Australian Capital Territory should make no difference to the approach of the court, and that a careful examination of the imputations particularised would show them to be faulty. In Baffsky v John Fairfax and Sons Ltd [1991] ACTSC 58; (1991) 106 FLR 21 Higgins J said at 32 that the fact that imputations are pleaded merely as particulars and not as separate actions in this jurisdiction,

"...quite properly makes little difference in pleading. It is desirable that imputations alleged by a plaintiff appear in a pleading, particularly where the matter complained of is extensive. It is also reasonable to demand of such imputations a degree of precision and accuracy similar to that demanded by the rules and practice of New South Wales."

9. His Honour noted that the purpose of the pleadings is to ensure that each side knows what case is to be met at trial. He said (at 33)

"The real purpose of the specification of the cause of action is to ensure that the matter really at issue is fairly tried and determined. It is as much the defendant's responsibility as it is the plaintiff's to ensure that the pleadings are, before trial, properly adapted to that end."

10. I note that His Honour's remarks in Baffsky were made in the course of delivering a decision at the trial stage of that action, and indeed the decision went on to find that an actionable defamation had occurred, and to award a sum of damages. In Griffith, which was decided some years after Baffsky, His Honour does not refer to the Baffsky decision. In that case he referred with approval to Fox J's decision in Hadzel v De Waldorf to refer to the need for particulars of the imputations to be relied on to be pleaded

"...as precisely as possible..."

and for the need for the pleaded imputations to be

"...both precise and in substance different from each other."

His Honour then went on, in the context of a pre trial application to strike out an imputation for form, to say

"However, it is not for the court to alter an imputation merely to give expression to the Court's view of more felicitous drafting."

11. In Robert Swan v Federal Capital Press of Australia (unreported, Supreme Court ACT, 12 March 1993) Master Hogan considered an application to strike out certain imputations particularised in a statement of claim. He there said

"I respectfully agree with the remarks of Higgins J in Baffsky v John Fairfax and Sons Ltd, to the effect that imputations in a defamation pleading should be precise and accurate.

But that does not mean that defendants in defamation actions should routinely seek to strike out imputations pleaded by a plaintiff simply because they have some complaint to make about the degree of their precision.

A plaintiff is entitled to frame his case as he pleases, subject to the right of the defendant to have the issues defined with sufficient particularity to enable a fair trial.

I do not understand the reference by Higgins J in Baffsky to the Rules and practice in New South Wales and to the cases that he cited to be saying anything to the contrary. Nor do I understand him to be laying down that applications to strike out imputations will be dealt with in exactly the same way in this Court as they may be in the Supreme Court of New South Wales. The fact that in that Court each imputation is a separate cause of action, whereas in this Court they are merely particulars, does make some difference. I understand His Honour to be saying, first, that the difference does not mean that in this court there is no need to set out the imputations at all. As he said, `It is desirable that imputations alleged by a plaintiff appear in a pleading, particularly where the matter complained of is extensive.'

Secondly, he then went on to speak about the need for precision and accuracy in drafting the imputations, particularly where the purpose of including them is to ensure that each side knows what case is to be met at trial."

12. I would adopt Master Hogan's analysis of the approach taken by Higgins J, and find comfort in so doing in the decision of His Honour in Griffith, which was handed down some 9 months after Swan, and which seemed to adopt the more cautious, "General Steel" approach to strike out applications at an interlocutory stage in defamation proceedings. Master Hogan made the point in Swan that

"...imputations are included in the pleading for the same purposes as all particulars, namely, to confine the generality of the issue within identified limits and to inform the opponent of the case to be met. Unless it is demonstrated that they do not serve those purposes, a plaintiff is at liberty to choose the language in which they will be expressed. If the language chosen is simply extravagant, the plaintiff runs the risk of not succeeding at the trial, because at the trial the question to be decided will be the one that the plaintiff has chosen to delineate. On the other hand, if the imputation is so imprecise that it has, demonstrably, a number of possible meanings, then, as Higgins J pointed out in Baffsky, it is as much the defendant's responsibility as it is the plaintiff's to ensure that the pleadings are properly adapted to defining the issue to be tried, and to do that before the trial. It may sometimes be possible to cure the imprecision by the supplying of further particulars. If that is not possible, or the plaintiff refuses to give them then an application to strike out the ambiguous innuendo will probably succeed."

13. Applying this test, I am not persuaded that the imputations pleaded in this matter are obviously incapable of being defamatory. Whether they are or not will of course be a matter for the trial judge and a plaintiff in framing his case is entitled some latitude. If the plaintiff frames the case poorly, they must run the risk referred to by Master Hogan of not succeeding at trial, subject only perhaps to a trial judge finding a somewhat difference nuance made out (Tobin & Sexton at 3320 ff, Chakravarti v Advertiser Newspapers Ltd (1998) 12 ALJR 1085 per Brennan CJ and McHugh J at 1091, Gaudron and Gummow JJ at 1098-99). I am not persuaded that as expressed they are so obviously incapable of arising that they should be struck out. It was apparent in the course of argument that the defendant, who has not yet filed a defence, has sufficient understanding of the case pleaded by the plaintiff to be aware of the defences which might be available to be pleaded on issues like fair comment.

14. It follows that I should dismiss the Notice of Motion. The parties requested at the hearing that they be given time to make written submissions on the question of costs, and I will allow 14 days for submissions on this aspect of the matter following the publication of this decision.

I certify that this and the five (5) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate: Date: 21 August 1998

Counsel for the Plaintiff: Mr B Salmon

Instructing Solicitors: Colquhoun Murphy

Counsel for the Defendant: Mr A Leopold

Instructing Solicitors: Freehill Hollingdale & Page

Dates of hearing: 14 August 1998

Date of judgment: 21 August 1998

SCHEDULE "A"

1. $60m coal sale linked to visit by Parer

By Greg Roberts

2. Two companies whose executives met the embattled Federal Resources Minister, Senator Parer, during an official visit to Tokyo bought coal worth more than $60 million last year from the mine in which his family has shares worth $2 million.

3. The Japanese trading companies Marubeni and Nissho Iwai are the sole Japanese purchasers of coking coal produced at the Jellinbah mine in central Queensland.

4. The Prime Minister, Mr Howard, again rejected calls for Senator Parer's sacking, effectively jettisoning his much-vaunted ministerial code of conduct.

5. The code stipulates that ministers must avoid the appearance of using public office for private purposes and must divest themselves of shares in companies involved in their portfolio responsibilities.

6. Marubeni and Nissho Iwai each bought about $30 million worth of coking coal - a total of a million tonnes - from Jellinbah in 1996-97.

7. Senator Parer met executives from both companies during a visit to Tokyo for trade talks in October 1996.

8. A spokesman for Marubeni in Tokyo, Mr Toshikatu Kashino, said his company and Nissho Iwai purchased all the coal exported from Jellinbah to Japan. Each company also has a 15 per cent stake in the mine.

9. Mr Kashino said he could not recall that Jellinbah was specifically discussed during an official meeting with Senator Parer in Tokyo attended by Marubeni's president, Mr Iwao Toriumi.

10. A spokesman for the Australian Embassy in Tokyo, Mr Paul Molloy, said Senator Parer's office and department had input into arranging the itinerary for the minister's visit and in determining whom the minister would meet.

11. Senator Parer said on Thursday that his meetings in Japan were arranged by the embassy.

12. Mr Malloy said there was nothing unusual about the companies the minister met, which also included corporations such as Mitsui and Mitsubishi. "They are the sorts of companies that a Minister for Resources would call upon when visiting Japan."

13. The Prime Minister again insisted there was no conflict of interest in Senator Parer's business activities.

14. "That Japanese company [Marubeni] has literally hundreds of millions of dollars invested in the entire coalmining industry in Australia," Mr Howard said.

15. "It would be extraordinary in the extreme if on a ministerial visit to Japan, he did not talk to the executives of this company."

16. Mr Howard declined to say if he had advised Senator Parer to sell his family trust's shares in the mine. The Minister said on Thursday that he was thinking of doing so. The Opposition's industry spokesman, Mr Simon Crean, said the minister's continuation in the job was increasingly untenable.

17. Referring to the Japan visit, Mr Crean said: "How often have these people thought they were meeting with Warwick Parer, businessman and shareholder, rather than Senator Parer, Minister for Resources? How many times did they think they were meeting with both?"