Harrigan v Jones [2000] NSWSC 814

New South Wales Supreme Court

CITATION : Harrigan v Jones [2000] NSWSC 814 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20486 of 1999 HEARING DATE(S) : 4 August 2000 JUDGMENT DATE : 18 August 2000

BILL HARRIGAN (Plaintiff)

PARTIES : v

ALAN JONES (Defendant) JUDGMENT OF : Levine J

C Evatt (Plaintiff) COUNSEL : B Connell (Defendant) Williamson Solicitors (Plaintiff) SOLICITORS : Bush Burke & Company (Defendant) CATCHWORDS : Strike out application - sufficiency of particulars of malice and aggravated damages Humphreys v John Fairfax & Sons Pty Limited (Hunt J, unreported, 18 April 1980) King v John Fairfax & Sons Pty Limited (1983) 1 NSWLR 31 CASES CITED : NRMA Insurance Ltd v Flanagan (1982) 1 NSWLR 585 Waterhouse v Broadcasting Station 2GB Pty Limited (1985) 1 NSWLR 58 Waterhouse v Mirror Newspapers Limited (1985) 1 NSWLR 81 DECISION : See paragraph 77

DLJ: 1 CAV [2000] NSWSC 814

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20486 of 1999

JUSTICE DAVID LEVINE

FRIDAY 18 AUGUST 2000

BILL HARRIGAN (Plaintiff)

v ALAN JONES (Defendant)

JUDGMENT (Strike out application - sufficiency of particulars of malice and aggravated damages) 1 The defendant has moved the Court to strike out the plaintiff's particulars of malice and particulars of aggravated damages. 2 On 6 April 2000 the jury held that the defendant had defamed the plaintiff in a radio broadcast on 2UE on 8 September 1998. 3 The jury found that the publication complained of conveyed the following defamatory imputations of the plaintiff: "(a) The plaintiff carries out his duties as a referee in a biased manner. (e) As a referee, the plaintiff favours ex super league teams over ex-ARL teams when awarding penalties. (f) As a referee the plaintiff favours Brisbane over their opponents when awarding penalties". 4 The defendant has pleaded truth under s 15 of the Defamation Act 1974, qualified privilege under s 22 and at common law, comment pursuant to s 32 and a defence of unlikelihood of harm pursuant to s 13. 5 In reply to the defence of privilege the plaintiff has pleaded that the defendant was actuated by express malice and the following particulars are given: "(a) The imputations were false to the knowledge of the defendant. (b) The imputations were published by the defendant with reckless indifference to their truth or accuracy. (c) The defendant wrongfully failed to make proper enquiries which would have established that the imputations complained of were false. (d) The defendant wrongfully failed to give the plaintiff an opportunity to refute or explain the allegations made against him by the defendant. (e) Improper motive being an intent to injure the plaintiff as evidenced by the unfair mode and manner of publication. (f) Improper motive being an intent to injure the plaintiff as evidenced by the publication of the matter complained of which was excessive and unfair. (g) Programme intrinsically malicious. (h) Plaintiff not fairly treated by the defendant on the programme. (i) Wrongful failure to retract and apologise. (j) The defendant was carrying out a vendetta against the plaintiff. (k) The defendant published the defamatory imputations against the plaintiff in the course of a vendetta he was carrying out against the Super League, the NRL, the Brisbane Football Team and Ex-ARL Teams for purposes including the assisting of South Sydney League Team. (l) Dishonest tactics of the defendant in only referring to selected statistics. (m) The plaintiff will also rely on the particulars of aggravated damages". 6 In the pleading described as the Third Further Amended Statement of Claim, the plaintiff alleges an entitlement to aggravated damages by reason of his "knowledge of the following": "1. The falsity of the imputations. 2. The defendant's knowledge that the imputations were false. 3. The reckless indifference of the defendant to the truth or falsity of the imputations. 4. The excessive language, sensationalism and tone of the matter complained of. 5. The conduct of the defendant which has caused the plaintiff to fear or worry that the defamation may be repeated. 6. The manner in which the defendant has treated the plaintiff and which has caused his hurt and injury to be increased. 7. The malice of the defendant who denigrated the plaintiff for the ulterior purpose of carrying out a campaign to promote a particular football club". 7 It is both these sets of particulars which the defendant seeks to have struck out. 8 Exhibit A on the application is an exchange of correspondence between the defendant's solicitors and the plaintiff's solicitors. 9 By letter dated 26 July the solicitors for the defendant (some seven weeks after the filing of the pleading) contended that the particulars of malice were defective insofar as they failed to identify the facts and matters relied upon and merely stated conclusions; certain authorities (to which I shall return) were referred to. The plaintiff's solicitors were required to provide proper particulars, failing which the defendant would move the Court as it has now done. 10 On 1 August the solicitors for the plaintiff wrote to the solicitors for the defendant complaining of the delay and asserting that the real purpose was to delay the matter being placed in the Holding List. It was stated that if a request for further and better particulars of the Reply was received in proper form it would be answered. 11 I leave to one side at the moment the mutual recriminations of the parties in this correspondence. 12 The real matter in issue is that adequacy of the particularisation of the plaintiff's case under each heading. 13 It is trite to state that the purpose of particulars is to inform the recipient of the case that will be made against it on the relevant issue. Particulars should be clear, concise, non-argumentative, not rhetorical and not constituted merely by a statement of a conclusion (see Humphreys v John Fairfax & Sons Pty Limited (unreported, 18 April 1980, per Hunt J at 12); NRMA Insurance Ltd v Flanagan (1982) 1 NSWLR 585 at 603B). 14 Provided that a party has particularised the facts, matters and circumstances which it proposes, by evidence, to prove, it may state, having done so, the conclusion which it will assert the matter which the evidence on those particulars will establish or the submission that will be made on those matters upon their being proved by evidence. 15 Applying these general principles, for the moment, it is unarguable that the particulars both of malice and aggravated damages are insufficient and are amenable to being struck out as embarrassing. 16 The only exception is the first particular of aggravated damages namely that the plaintiff knew that the imputations were false. As Mr Connell for the defendant rightly conceded, to request further and better particulars of that assertion would be futile and unnecessary. 17 The evidence of that assertion is very simply given. The plaintiff goes into the witness box in chief and is usually asked a question to the effect of what the plaintiff says as to the truth or falsity of the imputations; the answer one can anticipate will be "false". There is then evidence in relation to that particular. 18 If the imputations are justified pursuant to s 15 (as is here the case), the defendant will call evidence to prove that the imputations are true; if the defendant is relying upon the truth of the imputations in mitigation of damages (as is the case here), it will call evidence as to their truth. It must be borne in mind however that the plaintiff's assertion that they are false, in addition to the two matters to which I have just referred, will give rise to an issue as to truth or falsity if the assertion of falsity is relied upon, combined with other matters, relevant to the issue of malice or aggravated damages. 19 In King v John Fairfax & Sons Pty Limited (1983) 1 NSWLR 31 at 33G Hunt J said: "But once a plaintiff asserts that the matter complained of is untrue for the purpose of aggravating his damages, he will quite often find himself in the position of trying to resist evidence of truth being led by the defendant… Because such evidence is led in reply to a claim for aggravated damages, and not in support of a defence of truth or a claim in mitigation of damages, the defendant is entitled (subject only to the requirements of Pt 15, r 13(2)(b)) to do so without warning to the plaintiff". 20 It can now be taken that the defendant will be directed to disclose whether or not it proposes to adduce evidence of truth in these circumstances; will be directed to particularise its case on that issue and at an appropriate time the parties will be directed to exchange witness statements. This remnant of trial by ambush will be eliminated. 21 In the correspondence to which I have referred reference was made to the two decisions of Hunt J in Waterhouse v Broadcasting Station 2GB Pty Limited (1985) 1 NSWLR 58 and Waterhouse v Mirror Newspapers Limited (1985) 1 NSWLR 81. Those very important decisions of Hunt J cover matters of both principle and practice in relation to the particularisation of cases on malice and aggravation of damages. It is now to be appreciated that these issues will be determined by the trial judge and not a jury. This factor does not derogate from the need for compliance by the parties with the requirements for the proper particularisation of cases in these regards. Practice Note 118 and the Rules amendments (effective from 1 September 2000), inter alia, are to ensure compliance with the Rules, the complete disclosure by way of particulars of each side's cases on various issues to eliminate, for example, unnecessary exchanges of correspondence in regard to particulars and will require the exchange of witness statements.