Warren v Nationwide News Pty Limited [1999] NSWSC 446

New South Wales Supreme Court CITATION : Warren v Nationwide News Pty Limited [1999] NSWSC 446 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 21322 of 1995 HEARING DATE(S) : 29 October 1998 JUDGMENT DATE : 14 May 1999

PETER WARREN (Plaintiff)

PARTIES : v

NATIONWIDE NEWS PTY LIMITED (Defendant) JUDGMENT OF : Levine J

J Gibson (Plaintiff) COUNSEL : T Blackburn (Defendant) Denes Ebner Lawyers (Plaintiff) SOLICITORS : Blake Dawson Waldron (Defendant) CATCHWORDS : Comment - protected report - matters for trial DECISION : See paragraph 12

DLJ : 5 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

No. 21322 of 1995

JUSTICE DAVID LEVINE

FRIDAY 14 MAY 1999

PETER WARREN (Plaintiff)

v

NATIONWIDE NEWS PTY LIMITED (Defendant)

JUDGMENT (Comment - protected report - matters for trial) 1 This matter has been the subject of three substantive rulings namely that of 7 June 1996, 29 August 1997, 27 October 1998 and further directions on 29 October 1998. 2 The publications sued upon where on 8 and 9 December 1995. The issue for the jury will be whether or not in fact the imputations are carried by the respective matters complained of. 3 The present application is by the plaintiff to have certain particulars provided for the defence of Comment be struck out and that the defence of Fair Protected Report be struck out. 4 The particulars in relation to the defences of Comment are set out in a letter from the defendant's solicitors to the plaintiff's solicitor dated 12 September 1997 (see my judgment 27 October 1998 at 3). 5 As I understand the application in relation to the particulars of comment, it is contended that if the material for comment is in fact established and the requisite quality as to that material being " proper " is made out, it is incapable of supporting any such defence. The more so, is this contended, when one considers the imputations relied upon and the material said by the defendant to found the defence of Comment (taking into account the fact that the " correctness " of the comment is irrelevant but rather whether the comment or opinion is objectively one honestly that could be held in the light of that material: Merivale v Carson (1888) 20 QBD 275 at 280-1). 6 Since this matter was argued the Court of Appeal in New South Wales Aboriginal Land Council v Perkins (unreported, 20 November 1998) has authoritatively held that the defence of comment is directed to the imputation and not to the matter said to give rise to that imputation. The judgment of Priestley JA at 9-13 is of particular significance. It is clear that upon the jury finding an alleged imputation was carried by the matter complained of (and was defamatory), the defendant is obliged to show that the imputation was comment and not a statement of fact and for that purpose the defendant is entitled " to require the tribunal of fact to consider the published matter which made the defamatory imputation in order to determine whether that matter made an imputation which was comment or … was not " (at 11). 7 The powerful submissions made by Ms Gibson, in the end I am of the view, are more appropriate to be made at trial once the jury has determined whether or not the imputations are carried and are defamatory. The defendant has raised its defence of comment and particularised it; its resolution is fundamentally dependent upon the jury's finding whereupon the relevant components of the defence fully can be argued and proved. I am not prepared, on an interlocutory application, to strike out particulars in this context: the plaintiff has the advantage of the defendant's case, such as it may be, as disclosed by its pleading and particulars and can make appropriate submissions at the appropriate time. I am not persuaded that it is so unarguably clear that no case of comment can be made out. It will be for the trial judge to determine, in the light of the defamatory imputations found by the jury, whether in fact such a defence is established. 8 As to protected report, again powerful submissions were made by Ms Gibson for the plaintiff; they were directed however to matters more appropriate to be dealt with at the trial, again after the jury have performed its function with respect to the imputations. The decision of the High Court in Chakravarti v Adelaide Newspapers Limited (1998) 72 ALJR 1085; (1998) 154 ALR 294, although on appeal from South Australia, in my view, on this interlocutory application, can be said to have had an effect on the law in this State. Insofar as it was held to be necessary for the tribunal of fact to determine what meanings the publication carries before it determines the fairness of the report, it is arguable that the more so is that the case in New South Wales where the imputations constitute the cause of action. Again I am not persuaded that it is so unarguably clear that the defence as particularised is incapable of being made out that it should be struck out. 9 Accordingly, the subject matter of each of the plaintiff's applications should be determined at trial. 10 These applications indicate that the function and operation of the Defamation List in respect of publications after 1 January 1995 may shift in its emphasis. The principal matter for consideration will be the capacity of a matter complained of to carry the imputations relied upon. Except in the clearest of cases it is unlikely that a Court in the Defamation List will intervene in a way that in reality, pre-empts the litigation of issues at trial after the jury has performed its function. Certainly occasions will arise in relation to discovery and interrogatories to be more amenable for disposition in the Defamation List. Upon the determination of the question of capacity, the requirement in the parties properly to formulate their respective matters in Defence and in Reply should be greater; to put it starkly, the plaintiff, or indeed a defendant, may be in a position at an early date to view the opponent's case as pleaded and particularised as " if that's the best they can do let's get on with its litigation at trial ". At trial, of course, different considerations will have to be taken into account in the event of at the then " late " stage one or other of the parties seeking to amend. 11 This present application has given rise to matters of some importance in relation to the conduct of the Defamation List and the intervention of the decision of the Court of Appeal referred to make it appropriate that the costs be costs in the cause. I see no reason why this matter should not be listed for hearing when next called up. 12 The formal orders: (a) The plaintiff's applications are dismissed; (b) Costs will be costs in the cause. **********