Robinson v Laws[2001] QCA 122

SUPREME COURT OF QUEENSLAND

1. de JERSEY CJ:  The appellant (the plaintiff) sues the first respondent radio announcer, and the second respondent radio station, for damages for defamation.  The alleged defamation relates to seven broadcasts published in New South Wales and Queensland in 1995 and 1996.  The respondents have elected for trial by jury.

2. By their amended defence, the respondents rely on qualified protection, truth and public benefit in the traditional sense, truth and public benefit in the sense expounded in Polly Peck (Holdings) PLC v Trelford [1986] QB 1000 and, in relation to publication in New South Wales, the statutory defence of contextual truth.

3. The appeal arises out of an application by the appellant, under rule 171 of the Uniform Civil Procedure Rules, for the striking out of the whole, or parts, of the amended defence. At first instance, the application was largely unsuccessful.

Background material

4. At material times the appellant was a Commissioner of the Aboriginal and Torres Strait Islanders’ Commission (“ATSIC”). As he disclosed in his amended statement of claim, he was on or about 6 November 1963 convicted of the offence of rape, and on or about 27 March 1979 of what he termed a summary offence. He alleged in his pleading that he had not otherwise been convicted of any other “serious offence”. Because, in respect of the summary offence, the “rehabilitation period” under the Criminal Law (Rehabilitation of Offenders) Act 1986 had by the time of the broadcasts expired, the prospect of any disclosure of that conviction was regulated by that Act.  As part of the process of disclosure of documents, the appellant disclosed his criminal history to the solicitors for the respondents, in December 1999.

5. That criminal history confirms the appellant’s having been convicted of rape on 6 November 1963 and sentenced to six years’ imprisonment. It also confirms a conviction on 27 March 1979 for unlawful assault, for which he was placed on a good behaviour bond. The history records a number of other convictions for simple (Queensland) and summary (Commonwealth) offences; and significantly for this matter, the appellant’s having been convicted on 10 April 1989 of rape, and sentenced to nine years’ imprisonment, with the High Court, however, on 1 October 1991, allowing an appeal against that conviction, quashing it and ordering a new trial.

Summary of issues

6. In his amended statement of claim, the appellant refers to the broadcasts seriatim, extracting the announcer’s words of which he particularly complains. The full text of each broadcast is annexed to the pleading. The respondents admit all broadcasts save the first, which they say they have been unable to confirm.

7. Later in the amended statement of claim, the appellant sets out the defamatory meanings on which he relies.

8. To illustrate the points at issue, one may usefully focus for the moment on the first broadcast. The appellant complains particularly of these words spoken by the first respondent:

“You see what this is here?  Record of Charges, Okay.  This is a criminal record of an ATSIC Councillor and it’s as long as your arm, and there are three charges of rape in there.”

9. Notwithstanding that the appellant annexes to the amended statement of claim the full text of the broadcasts, his extracting the particular passages of which he complains confines the issue: it is upon those passages the jury must focus, while acknowledging that to gather their true meaning, it may conceivably be necessary to read the particular passage in the context of the wider broadcast. My having said that, it would not however, in practical terms in this case, seem necessary to do that.

10. In relation to this particular statement made during the first broadcast, the appellant pleads the following defamatory meanings: (1) that the appellant (plaintiff) “had a criminal record which was very lengthy …” and, (2) “which included, as part of the criminal record, convictions in respect of three rape charges”.

11. In their amended defence, the respondents denied those particular defamatory meanings, and specified their own as follows:

“A.that the plaintiff was a rapist who had raped on more than one occasion;

2. that the plaintiff had a significant criminal record;

3. that the plaintiff was unfit to hold a senior position in ATSIC”

12. The appellant objected to this pleading by the respondents, as being vexatious. Mr Morris QC, who appeared with Ms Spence for the appellant, submitted that it did not disclose any genuine ground for denial of the appellant’s meanings, that the denials were tendentious, and that the alternative meanings were in any event so vague as to be objectionable.

13. Counsel for the appellant accepted that the respondents might legitimately plead alternative meanings in order to explain the basis for their denial of those advanced by the appellant. But he essentially challenged the genuineness or validity of the respondents’ alternatives, contending that “the fact that words conveyed a specific meaning is not negatived by the fact that the same words also conveyed a more general meaning”. The learned primary judge did not accede to those submissions.

14. Having specified those alternative meanings, the respondents pleaded, in respect of any publication which may be found to have been defamatory, truth and that the publication was for the public benefit, on grounds particularised in an annexure to the amended defence. In respect of the respondents’ alternative meanings, this raised the so-called Polly Peck defence.

15. Counsel for the appellant did not ask the learned judge to determine whether or not such a defence was available in Queensland. Before us, however, Mr Morris submitted that such a defence was not open here. His submission derived substantial support from the reasoning of Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, 527-8.  He referred also to s 8 of the Defamation Act 1889.

16. Counsel for the appellant alternatively submitted that such a defence was unavailable because the respondents’ alternative imputations did not convey a “sting” common with that of the imputations particularised by the appellant (cf Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412).  (This was the only aspect pursued before the learned judge.)

17. In this brief initial canvassing of the issues, it remains to mention the appellant’s unsuccessful complaint before the learned judge that in the amended defence, the respondents had, contravening the Criminal Law (Rehabilitation of Offenders) Act, disclosed details of the appellant’s prior criminal history; and the appellant’s likewise unsuccessful complaint to the effect that the amended defence was prolix.

Respondents’ pleading of alternative meanings

18. I have set out above the passage from the first broadcast of which the appellant particularly complained, and his and the respondents’ alternative meanings. To deal fully with this aspect of the matter, I must reproduce now the particular passages from the subsequent broadcasts to which the appellant referred.

Second

“(a)“And is that company that that fella Ray Robinson is involved with ‘– The ATSIC Commissioner, the charmer convicted of gang rape and other crimes that we have talked to Robert Tickner about.’

2. “Your word, 57 years old, all your life on the land, one arm doing your best battling along against Ray Robinson, convicted gang rape and other crimes, whose word should they take on this?””

Third

“You might remember me passing the Minister a copy of Ray Robinson’s criminal record.  It runs for two pages this criminal record.  Stealing, rape, unlawful assault.  This is the criminal record of an ATSIC Commissioner who is in charge of millions of dollars of taxpayers money, people.”

Fourth

“(a)“This is an organisation that puts people like Ray Robinson, convicted thief and rapist in charge of funding for legal services.”

(b)“Now the protest coming loudest from the mouth of deputy chairperson one Sugar Ray Robinson as he’s called, that was a safe prediction incidentally.  He says these reforms are ridiculous and that the Government may as well replace ATSIC.  Well I think that’s a terrific idea Ray.  First good one you’ve had for a while but a terrific idea just the same.””

 Fifth

“(a)“We talked to Robert Tickner on that subject at that time it was revealed that this man, Ray Robinson had a criminal record.  But a pretty unpleasant criminal record, one charge being rape”

2. “I have in front of me a copy of the record of charges against

Robert Raymond Robinson, 1962 stealing, 1963 rape, six years imprisonment.  Then there is driving problems and so it goes on. But let me turn to the next page, 1989 rape, nine years imprisonment … 1992 rape, found not guilty on that one incidentally.””

Sixth

“But this criminal record is not just your average run of the mill criminal record.  This includes rape and stealing and assault. It’s a couple of pages long.”

Seventh

“(a)“It is alleged that Ray Robinson was party to a $70000 bribe to a witness to get his mate and fellow powerbroker, Lyle Capewell, out of what could be described as a sticky legal situation.”

2. “Now there are allegations Ray Robinson organised a little $70,000 payoff to a major witness.  Now, if it transpires this is true it will make black and white Australians sick to their stomachs.  If $70,000 was spent buying somebody’s silence instead of purchasing medicine or school books for black kids in the outback it will be the most damning indictment of ATSIC ever – ever – and do you want to hear something funny – Ray Robinson is complaining about the investigation saying the police are trying to – wait for this people – trying to destroy his reputation – his reputation?””

3. “Well I suppose another Writ will be winging its way to me if I say this but I find it very hard to resile from truth so I’m going to say it anyway. Ray Robinson’s reputation is already sullied.  It’s very hard to look a martyr Ray, when you’ve got convictions for rape, assault, stealing and several other crimes dating back decades and it’s very difficult to keep a clean public image when one of your organisations like the Bidjara Aboriginal House and Land Company receives a grant of $1.4 million, an increase of 3500% on the year before, and as far as reputations go, it’s not easy to look like the good guy when you wield your enormous taxpayer funded legal power to kick a harmless old one armed pensioner off his property – see what a dangerous thing it is to talk about reputations Ray Robinson eh? – the problem is people might start to hold you to account!””

19. Those other passages are alleged by the appellant to carry the following additional defamatory meanings (following on from the numbering 1 and 2 assigned to the two meanings in respect of the passage from the first broadcast):

3. “The Plaintiff had a criminal record which was very lengthy, extending to more than one page.”

4. “The Plaintiff had a criminal record which included, apart from the 1963 conviction, convictions in respect of a number of other crimes;”

5. “The Plaintiff had a criminal record which included convictions for stealing;”

6. “The Plaintiff had a criminal record which included, at the time of the broadcasts, a 1989 rape conviction in respect of which the Plaintiff was sentenced to nine years’ imprisonment, as well as a separate rape charge in 1992, in respect of which the Plaintiff was found not guilty;”

7. “That the Plaintiff was personally responsible for the Aboriginal Housing Company acting towards a disabled pensioner in a way that unlawfully deprived him of his legal right to occupy land;”

8. “That the Plaintiff committed a serious criminal offence, and attempted to pervert the course of justice, by offering a $70,000 bribe to a witness, using money which ought to have been applied to purchase medicine and school books for Aboriginal children;”

9. “That the Plaintiff was a person who, cynically and for motives of self-interest, resisted proper scrutiny of ATSIC.”

20. The respondents’ alternative meanings, advanced in the context of their denials of the appellant’s meanings, and additionally, to found the alleged Polly Peck defence, may be summarised in this way:

1. as to the appellant’s meaning in para 3 above:

“that the plaintiff had a significant criminal record”

2. as to the appellant’s paras 4 and 5 above:

“that the plaintiff had convictions for the offences of stealing, rape and unlawful assault”

3. as to the appellant’s para 6 above:

“that the plaintiff was a rapist who had raped on more than one occasion”

(The learned primary judge ordered that this be struck out in relation to the Polly Peck defence, but not insofar as it formed part of the respondents’ denial of the appellant’s meanings.)

4. as to each of the appellant’s paras 7,8 and 9 above:

“that the plaintiff was unfit to hold a senior position in ATSIC”.

21. The learned judge declined to strike out the respondents’ alternate meanings, save that in (c) above, but only then, as I have said, as to the Polly Peck defence.  The judge expressed the view that “it would be open to the jury to accept each of the other challenged imputations pleaded by the (respondents)”.

22. The essential question agitated on the hearing of the appeal was whether the respondents’ alternatives were genuine alternatives. Mr Mulholland QC, who appeared with Mr Boddice for the respondents, urged that they were. Counsel for the appellant, however, styled them tendentious, meaning in this context biased or skewed in favour of the respondents. Generally less serious in charge than the meanings ascribed by the appellant (though not necessarily in all cases), the respondents’ meanings could not, it was submitted, exclude the appellant’s, and so should not be seen as offered truly in denial of the appellants’. In forensic terms, the respondents were endeavouring, Mr Morris submitted, to “insulate” themselves from the meanings truly attending the passages, by diverting attention to bland meanings of mostly less serious import.

23. One should assess the legitimacy of these suggested alternative meanings recognising the significance of their being pleaded by way of defence. They should be taken to have been pleaded “to make explicit the ground for denying a pleaded imputation”, as emerges from this passage in the judgment of Brennan CJ and McHugh J in Chakravarti supra,  pages 527-8:

“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.”

Importantly, rule 166(4) of the Uniform Civil Procedure Rules provides that “a party’s denial … of an allegation of fact must be accompanied by a direct explanation for the party’s belief that the allegation is untrue”.

24. It is necessary in these circumstances to analyse each “pair” of particularised meanings.

AIn relation to the passage from the first broadcast, the appellant’s meaning: “that the (appellant) had a criminal record which was very lengthy”, contrasts with the respondents’:  “that the (appellant) had a significant criminal record”.

25. The appellant’s accords perfectly reasonably with the words spoken, “very lengthy” reflecting the description, “as long as your arm”. By way of contrast, the respondents’ meaning lacks the specificity of the appellant’s. The comparatively bland, more abstract description “significant”, cannot be justified as explaining a denial of the fairly precise meaning advanced by the appellant.

BIn relation to the passage from the first broadcast, the appellant’s meaning: “… which included, as part of the criminal record, convictions in respect of three rape charges”, is met with the alternative:  “that the plaintiff was a rapist who had raped on more than one occasion”.

26. The appellant’s meaning, again, reasonably picks up the actual words of the broadcast: “a criminal record (which includes) three charges of rape”. The appellant adds reference to conviction on the charges mentioned in the passage, of course, but that was plainly the message being communicated in light of the reference to the criminal record.

27. Obviously faced with the reality of the appellant’s criminal history, which included only one conviction for rape, that of 1963, the respondents sought through this alternative meaning to recover their position by embracing the one proven rape and leaving open, presumably, the possibility of their independently establishing (to the civil standard of proof) at least one more rape – one infers, possibly, in relation to the incidents involved in the later conviction which was quashed by the High Court. The question is whether the respondents’ alternative meaning is reasonably open as explaining their denial of the appellant’s meaning.

28. The critical point is the reference in the words spoken to three charges of rape.  Taking that in the context of the criminal history to relate to three convictions, a denial of the appellant’s meaning could not rationally simply allow for a possible reduction (or even, for that matter, increase) in the number of rapes.  The respondents cannot escape the obvious difficulty associated with the first respondent’s having referred to three charges of rape, where the appellant was convicted of but one, by ignoring, in advancing their alternative meaning, the first respondent’s specific reference to the number three.

29. The respondents’ alternate meaning is not in this instance properly available by way of denial of the appellant’s.

CFurther in relation to the first broadcast, the respondents add to their alternative meanings, which refer to the criminal history and the rapes, “that the plaintiff was unfit to hold a senior position in ATSIC”. 

30. This likewise cannot be seen as appropriate to an explanation, by way of particularisation of alternative defamatory meanings, why the respondents reject the meanings advanced by the appellant. The appellant has not alleged that the first respondent defamed him in that respect. The respondents should not be permitted to divert attention from the specific defamatory meanings advanced by the appellant, by referring to that different and separate subject matter.

DThe appellant’s meaning: “the plaintiff had a criminal record which was very lengthy, extending to more than one page” (drawn from the 6^th broadcast), attracted the respondents’ alternative:  “the plaintiff had a significant criminal record”.

31. The appellant’s meaning accords with the words used in the broadcast passage. The respondents’ alternative was not open for reasons similar to those dealt with in paragraph A above.

EThe appellant’s meanings 4 and 5 above, referring to the criminal record, referred, in addition to the 1963 rape conviction, to convictions “in respect of a number of other crimes”, including stealing.  This drew an alternative meaning from the respondents which made specific reference to the unlawful assault.

32. Again, that cannot be accepted as advanced to explain any denial of the appellant’s meaning, a meaning plainly emerging from the language used in the relevant passages.

FThe appellant’s meaning 6 above refers to inclusion in the criminal history of the 1989 rape conviction, leading to nine years’ imprisonment, “as well as a separate rape charge in 1992 in respect of which the plaintiff was found not guilty”.  The respondents’ alternative meaning is “that the plaintiff was a rapist who has raped on more than one occasion”.

33. The respondents’ meaning, if supportable in fact, carries more serious adverse significance for the appellant than his own.  But it is plainly not supportable: it was the 1989 conviction which the High Court quashed.

34. The respondents’ alternative therefore cannot rationally be advanced as explaining a denial of the appellant’s meaning, which goes no further than picking up the language of the 5^th broadcast. 

35. This alternative meaning is simply untenable. Reference may also be made back to the observations in para B above.

GThe appellant’s meanings 7,8 and 9 above, which may fairly be drawn from the broadcast passages, drew the respondents’ alternative: “that the plaintiff was unfit to hold a senior position in ATSIC”.

36. While such a conclusion as to fitness for that position may on one view be said arguably to arise from the circumstances contained in the appellant’s meanings if true, advancing that consequential position could not be justified as part of a process of explaining why the respondents were denying the more specific meanings alleged by the appellant.

Conclusion

37. Those parts of the amended defence in which the respondents advance, as part of their denial of the appellant’s particularised defamatory meanings, alternative meanings of their own, should have been struck out, because they could not rationally be justified as true matters of denial.

The Polly Peck defence 

38. The respondents seek to rely on their pleaded alternative meanings in another way, now falling for separate consideration.

39. The respondents invoke the process described in Polly Peck , supra, page 1032 per O'Connor LJ:

“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 of the facts and matters upon which he relies in support of his plea, as he is required to do so by RSC, O 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 judgement.”

40. In Chakravarti, although Gaudron and Gummow JJ appear to have assumed, without any comprehensive analytical elaboration, the availability of such an approach in Australia (page 546), Brennan CJ and McHugh J considered it “contrary to the basic rules of common law pleading” (page 527).  Their Honours’ observations, it may be conceded, strictly amount to obiter dicta, but they remain highly persuasive.  They explained (page 528):

“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 actions.”

41. Those Justices identified the “fundamental defect” in the reasoning of Polly Peck as follows (page 529) (having just referred to the judgment of Cooke J in Templeton v Jones [1984] 1 NZLR 448):

“This passage highlights what we regard as the fundamental defect in the reasoning in Polly Peck.  Cooke J rejected the notion that the defendant can take severable parts of a publication each containing defamatory imputations, link them together, and give the publication a meaning at a sufficiently high level of abstraction to subsume the meanings of the severable parts.  That is, a defendant cannot take a part of an article that wrongly alleges that the plaintiff has convictions for dishonesty and a part that imputes that the plaintiff has defrauded shareholders, assert that the article means that the plaintiff is dishonest, and then justify that meaning, perhaps by proving that the plaintiff had in fact defrauded the shareholders.  On that hypothesis, it would be outrageous if the defendant could obtain a finding that the article was true in substance and in fact when it plainly was not.  Yet that is the sort of finding that must result from applying the central proposition of Polly Peck.”

42. Take the case of the publication of a false (and outrageous) statement that the plaintiff has committed rape or murder. Is a defendant to escape the consequence of that defamation, by subsuming its subject matter within the more abstract meaning, say, that the plaintiff “is not a good person”, and proceeding to justify that contention?

43. The learned judge pointed out that the Polly Peck decision has been “generally approved and applied in Australia (see M Gillooly:  The Law of Defamation in Australia and New Zealand (1998) page 110), adding however, referring to Chakravarti, that “there is high persuasive authority that it does not apply in Australia”.  The judge was not asked to rule as to its availability.  There is no decision determining its applicability in the State of Queensland.  It would be unduly reticent of this Court now not to express its own view.

44. The Polly Peck approach should not be considered open in Queensland.  The gist of the cause of action for damages for defamation in Queensland is publication of defamatory matter: s 8 Defamation Act 1889.  “Defamatory matter”, is defined (s 4) by reference to imputations, and specifically, “the matter of the imputation”.  In Bellino v Australian Broadcasting Corporation (1995-6) 185 CLR 183, the High Court noted this aspect: per Dawson, McHugh and Gummow JJ page 230, per Gaudron J page 237.

45. In Queensland it is, consistently, the invariable practice of plaintiffs in defamation proceedings to particularise the imputations on which they rely. Macrossan CJ adverted to the significance of their doing so in Evans v Davies [1991] 2 QdR 498, 510, as follows:

“Opinions vary on the question whether it is strictly necessary to plead popular innuendoes although the practice has its advocates: e.g. per Lord Devlin in Lewis v. Daily Telegraph Ltd [1964] A.C. 234.  If a plaintiff does choose to plead meanings and implications upon which he relies then there is substantial reason for thinking that, as is ordinarily the case when particulars of a pleading are given, he is bound by them:  Slim v. Daily Telegraph Ltd [1968] 2 Q.B. 157 per Salmon L.J. at 185 and per Gibbs and Stephen JJ. in Sungravure Pty Ltd v. Middle East Airlines Airliban S.A.L. (1975) 134 C.L.R. 1 at 7-8 and 14-15.  The trend of modern authority seems to lie in this direction and there is a lot to support it although Griffith C.J. in Ryan v. Ross (1916) 22 C.L.R. 1 at 11 seemed to be of the view that a plaintiff was not confined to those of the obviously applicable meanings which he might happen to select.  In the present case the plaintiffs accepted the procedure adopted at the trial under which these, the quoted meanings, were the only alleged meanings upon which the jury’s answers were sought.  These are the meanings then to which we are obliged to confine our attention.”

46. In Ryan v Ross , supra, page 11, Griffith CJ had expressed these views:

“When the plain and obvious meaning of words is defamatory an innuendo is unnecessary, and, if made, negligible.  So, if words are open to several constructions each of which plainly and obviously bears a defamatory meaning, an innuendo by way of selection is equally unnecessary.  For instance, an imputation of falsehood may be made in language susceptible of several shades of meaning, from wilful perjury to reckless misstatement, but if all these shades of meaning are plainly and obviously defamatory, though not in equal degree, it is not necessary for plaintiff in his pleadings to select the particular shade of meaning which he desires the jury to adopt, nor, if he does so by way of innuendo, is he confined to it.”

47. Those views expressed in 1916 do not accord with modern Queensland court practice. As I have said, plaintiffs in defamation proceedings in this State invariably now plead false innuendoes, and they are held to them. Their doing so, and being obliged to do so, is consistent with the rules of court, especially now the Uniform Civil Procedure Rules.

48. The merit of such an approach is explained in the following passage from Chakravarti, pages 531-2, per Brennan CJ and McHugh J:

“Where the plaintiff pleads a false innuendo, the plaintiff gives a shape and focus to the cause of action.  If the trial judge rules that the matter complained of is capable of giving rise to the meaning pleaded, the first question for the jury is whether the meaning is made out.  If it is, and only if it is, questions then arise to whether the defendant has a defence to that publication.

The courts require plaintiffs to plead false innuendoes where the pleading of an innuendo is needed to define the issues for determination (41).  It would be an invitation to return to the days of “trial by ambush” in defamation actions if courts did anything which might discourage plaintiffs from pleading such innuendoes.   One of the vices of the old forms of pleading was that a plaintiff relying on a false innuendo could go to trial simply by relying on the publication without being required to specify the particulars.  At the trial, defendants sometimes found themselves in the invidious position of preparing a case that did not arise because the plaintiff did not rely on meanings which the defendant assumed would be relied upon. In such a case, the defendant may have spent much time, effort and money in marshalling the proofs of a defence which did not arise.  Worse still from the defendant’s point of view was that the plaintiff might be able to persuade the trial judge to a let a meaning go to the jury which the defendant had thought could not reasonably arise.  The defendant might then find itself in a position where, without an adjournment (often requiring the discharge of the jury and an order paying the costs of a part-heard but lengthy trial), the defendant would not have available to it defences that were in fact available to it. 

A plaintiff who pleads a false innuendo thereby confines the meanings relied on.  The plaintiff cannot then seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis.”

49. Once one acknowledges the particular matter of the imputation as the heart or essence of the cause of action in defamation in this State, it must be taken to fall to a plaintiff to plead the particular meaning or meanings relied upon. They will then bind the plaintiff.

50. In Chakravarti, supra, pages 580-1, Kirby J referred to the possibility of a judgment based on “less serious” imputations comprehended within those pleaded by a plaintiff, or “where additional imputations found represent nothing more than nuances or shades of meaning of those pleaded”.  See also per Brennan CJ and McHugh J, page 533.  But Kirby J added (page 581):  “The position will be otherwise in jurisdictions which, by statute, provide that each imputation is a cause of action upon which the plaintiff may sue.” That would appear to encompass the situation in Queensland.  That is not to say, of course, that another such meaning, where its availability is flagged and the plaintiff wishes to adopt it, could not be added during a trial in an appropriate case by way of amendment prior to the matter’s proceeding to judgment.

51. When a plaintiff commences a defamation action in Queensland, the actionable wrong on which the plaintiff sues is publication of the defamatory matter, being essentially the meaning conveyed by the particular communication. The plaintiff particularises the meaning said to arise. If the plaintiff fails to establish that meaning, the plaintiff fails. The defendant may deny the meaning alleged, and may – perhaps must under rule 166(4) of the Uniform Civil Procedure Rules – identify any different meaning said to arise, by way of explaining the denial. I accept the following submission for the appellant, that “if it is accepted that the meaning for which the defendant contends is the meaning properly conveyed by the words of which the plaintiff complains, to the exclusion of the meaning asserted by the plaintiff, the plaintiff fails to make out the actionable wrong on which the plaintiff has sued. There is no scope for a defendant then to advance any positive grounds of defence in respect of an entirely different actionable wrong, on which the plaintiff has not chosen to sue.”

52. The criticism of any proposed adoption of the Polly Peck regime discussed by Brennan CJ and McHugh J in Chakravarti would be applicable were that proposed in Queensland.  The system of pleading in this State is geared to early comprehensive disclosure of the case to be mounted by the plaintiff, and the response of the defence. Beyond that, it remains geared, consistently with good commonsense, upon the plaintiff’s having the obligation to define the case he mounts, such that whether he succeeds depends on his sustaining that case.  Civil litigation is, sensibly must be, claimant driven.

53. The Uniform Civil Procedure Rules are premised on the need for that early, comprehensive definition of the case being mounted, and that equally early responsive definition of the position of the defence. Rule 5(1) states that the purpose of the rules is to facilitate “the just and expeditious resolution of the real issues in civil proceedings at the minimum of expense”. Rule 157 obliges a party to include in that party’s pleading “particulars necessary to … define the issues for, and prevent surprise at, the trial.” The objective is early definition of the points at issue, and where possible their limitation.

54. But importantly, the rules additionally assume that it falls primarily to the plaintiff to define the case he intends to advance. Neither in a defamation, nor any other case, do the rules of court contemplate the collaborative construction of a point in issue divorced from the parties’ individual positions which the Court must then set about resolving. The practice is based on the notion that the plaintiff sets up and defines his case: unless he establishes the case so defined, judgment goes to the defence.

55. The rules of pleading do not differ depending on the nature of the plaintiff’s case. But the primacy of the plaintiff’s role in prescribing the bounds of the case he asks to be determined is emphasised in relation to defamation suits, with the “actionable wrong” being statutorily delineated in effect as the publication of the particular imputations the plaintiff chooses to bring forth. The notion that a defendant may change the goal posts by promoting other imputations, perhaps at a high level of abstraction, and effectively bypassing the consequences of defamation in respect of the plaintiff’s meanings by establishing justification at that remoter level, sits uneasily with an approach to civil litigation which is plaintiff driven.

56. The conduct of civil litigation cannot be allowed to elasticise to the point where it resembles the workings of a roving commission of inquiry. It is litigation constrained by parties and subject matter. With the plaintiff instituting the litigation, with prospective obligations in relation to the costs of the proceedings, it falls ordinarily to a plaintiff to prescribe at least its primary bounds. If the plaintiff fails then to establish the case so described, the ordinary consequences are known and accepted. Allowing a defendant to circumvent liability on a plaintiff’s particularised case, otherwise sustainable, by introducing a level of abstraction which could subsume the plaintiff’s claim and justify the defendant’s position, could often render the process unpredictable to an intolerable extent.

57. It follows in my view that those parts of the amended defence setting up a Polly Peck defence should be struck out.  It has not been necessary for me to deal with the appellant’s additional contention, as to the absence of a requisite “common sting” – the only aspect of this defence with which the learned judge was asked to deal.

Prolixity

58. The form of the amended defence involved setting out separately, with respect to each passage extracted by the appellant, the alternative meanings for which the respondents contended. In a number of instances, from the respondent’s point of view, the alternative meanings so listed were the same. In other instances, the basic “core” of alternative meanings was supplemented with one or two others. The pleading runs through this process a number of times - first, in response to the appellant’s pleaded meanings; second, in relation to the Polly Peck defence; and third, in relation to the “contextual truth” defence concerning the publication in New South Wales.

59. In the result, following the normal procedure where pleadings are read to the jury at the commencement of a trial of this character, before any evidence were given, the jury would hear the respondents’ meanings repeated orally many times (in fact, we were told, 25), including: “that the plaintiff was a rapist who had raped on more than one occasion” –and it was this to which counsel for the appellant took particular exception.

60. It would have been possible to draft the pleading so that the respondents’ “core” alternative meanings were stated once, with the others referred to in a supplementary way in relation to the additional paragraphs to which they related. Counsel for the respondents disavowed any tactical approach with a view to forensic advantage for the respondents, and that may at once be accepted. But a pleading of this character, especially where it would ordinarily be read in that way to a jury, should obviously be as concise as the circumstances of the case may allow.

61. The learned judge no doubt accepted these points, but he was in the end apparently persuaded not to strike out the pleading because of this feature, noting that “repetition is … often an aid to comprehension, particularly where something is to be conveyed orally”.

62. It is useful to set out what His Honour said on this subject:

“In support of the argument that the amended defence is excessively repetitious and prolix the plaintiff relied inter alia on rule 149(1)(a) of the Uniform Civil Procedure Rules which provides that a pleading must be as brief as the nature of the case permits.  There is a good deal of repetition of the alleged alternative meanings in the amended defence, as I have related, but on behalf of the defendants it was argued that the amended defence necessarily repeats the alternative imputations.  The pleading of the alternative imputations is relevant first to explain the defendants’ reasons for denying the imputations alleged on behalf of the plaintiff, as is necessary if rule 166(4) of the Uniform Civil Procedure Rules is to be complied with; and see Chakravarti v. Advertiser Newspapers Ltd (1998) 193 C.L.R. 519, at p. 528 per Brennan C.J. and McHugh J.  The alleged alternative imputations are then repeated when the Polly Peck defence and the defence of contextual truth are pleaded.  It would have been possible for the defendants to abbreviate their pleading by referring, subsequently to paragraph 16 when necessary, to the alleged alternative imputations set out in that paragraph.  But the result would have been a complicated, and possibly confusing, series of references.  That may have made the amended defence shorter, but more difficult for the jury to comprehend when read out at the beginning of the trial.   At all events if the trial judge is convinced that the amended defence is too wordy he or she can take steps to ensure that any untoward effects of such wordiness can be eliminated.   Repetition is, however, often an aid to comprehension, particularly when something is to be conveyed orally.  In those circumstances I am not persuaded that the amended defence should be struck out on the grounds of excessive repetition and prolixity.”

63. On my approach, most of the matters said to have been objectionably expressed, because repetitiously, should, for other reasons already canvassed, be struck out anyway, and they would not reappear in any further amended defence. It is therefore not necessary to deal further with this matter except in relation to para 31 of the amended defence, which sets up the contextual truth defence relevant to the publication in New South Wales.

64. There was no challenge to that particular defence save in relation to this issue of prolixity. As to that paragraph of the pleading, I would, however, in relation to this issue, respectfully differ from the approach taken by the learned judge. In doing so I acknowledge that his conclusion was based on an evaluative type assessment, and that one should be circumspect about taking a different approach on appeal.

65. I am however especially conscious of the requirement under rule 149(1)(a) of the Uniform Civil Procedure Rules that a pleading be “as brief as the nature of the case permits”, and the circumstance that this degree of repetition could have been avoided by simple drafting techniques.

66. Even though, on my approach, this issue remains alive only in relation to the plea of contextual truth in para 31, the degree of repetition in that plea alone calls out for correction, warranting its being struck out in its form as presently cast.

67. I am not persuaded that an appropriate answer to the problem is that the trial judge, departing from the usual approach, could have directed that certain parts of the pleading not be read to the jury at the commencement of the trial. There should be no need to resort to such an expedient in proceedings properly “bedded down”. A pleading of this character should be in appropriate form well before the commencement of the trial.

68. It follows on my judgment that the whole of the pleading should have been struck out. There was no issue but that, in that event, there should be leave to the respondents to replead.

Criminal Law (Rehabilitation of Offenders) Act 1986  

69. The appellant objected before the learned judge, and on appeal, that the respondents disclosed, in the amended defence, details of convictions in respect of which the “rehabilitation period” under the Criminal Law (Rehabilitation of Offenders) Act had expired.  The judge ruled that the disclosure had been permissible, because the appellant himself had “wished” to disclose the convictions.

70. The primarily relevant provision of the Act, s 6, is in these terms:

“Non-disclosure of convictions upon expiration of rehabilitation period

6.Where the rehabilitation period has expired in relation to a conviction recorded against any person and the conviction has not been revived in respect of that person, neither that person nor any other person, if the person knows that the rehabilitation period had expired, shall disclose the conviction unless –

1. being the person against whom the conviction is recorded – the person wishes to disclose the conviction; or

2. the person makes the disclosure under the authority of a permit granted under section 10 in accordance with the conditions (if any) of the permit; or

3. the person makes the disclosure in circumstances that constitute an exception to the operation of section 9(1) or that are expressed by section 9(2) to be a case to which the provisions of section 9(1) do not apply.”

71. None of the provisions referred to in s 6(b) and (c) applies in this case.

72. The relevant disclosure by the respondents occurred in para 5 of the amended defence.

73. For the conclusion that the appellant “wished” such convictions to be disclosed, the respondents relied on paragraphs of the amended statement of claim in which the appellant referred to his prior convictions – para 3 in respect of the conviction for the summary offence on 27 March 1979; para 5 in which the appellant alleged that apart from that, and the 1963 rape conviction, he had “never been convicted of any serious offence” (implicitly raising the query, it was suggested on the hearing of the appeal, whether he had been convicted of any non-serious offence); and para 6, in which the plaintiff asserted that as at the time of the broadcasts, “the only item on (his) criminal history was the 1963 conviction”. The respondents relied also on the circumstance that prior to delivery of the current amended defence, and during the process of disclosure of documents, the appellant provided a copy of his full criminal history to the respondents.

74. In my respectful view, the issue cannot be resolved by reliance on s 6. I construe para (a) of s 6 as relating to disclosure by the convicted person himself – here, the appellant. That is to be gathered from the opening words, “being the person against whom the position is recorded”. Where the earlier words of the section refer to disclosure by “any other person”, it is inviting attention to (b) and (c), neither of which, as I have said, applies.

75. It is however inconceivable that in a case where the extent of the party’s criminal history is directly relevant, because for example of the issue of truth raised here in relation to the first respondent’s assertions, the full extent of that criminal history could not be considered by the Court.

76. Other matters aside, the mere circumstance that in the course of these proceedings, and before the delivery of the impugned amended defence, the appellant disclosed his criminal history to the respondents, involved a concession by the appellant of the potential relevance of that history for the purposes of the proceedings. That implicitly authorised the respondents to utilise the criminal history as necessary, in this instance for the purpose of preparing a properly responsive pleading.

Conclusion

77. For these reasons, I would order that the appeal be allowed, the orders made at first instance set aside, and that in lieu thereof, it be ordered that the respondents’ current amended defence be struck out, with the respondents having leave to deliver a further amended pleading within 28 days, consistently of course with the constraints set out in these reasons for judgment. I would order the respondents to pay the appellant’s costs of the appeal, and of the proceedings below, such costs to be assessed on the standard basis.

78. WILLIAMS JA:  All relevant facts are fully set out in the reasons for judgment of both the Chief Justice and Mackenzie J which I have had the advantage of reading.  In consequence it is not necessary for me to set out herein the relevant pleadings.  I agree with the orders proposed by the Chief Justice, and with the reasons of the other members of the Court, subject to what I say herein.

79. The imputations alleged by the appellant to constitute the "defamatory matter" are fully particularised in the Statement of Claim. Eight imputations are detailed, each said to be derived from the "natural and ordinary meaning conveyed" by the broadcasts in question. It is also important to note here that though seven broadcasts were involved there is no repetition in the Statement of Claim of each imputation with respect to each broadcast. The procedure is adopted of cross‑referencing the imputations to the broadcasts;  that ensures the jury would be clearly aware of what publication was involved with respect to each imputation.

80. With the exception of the first broadcast (the contents of which are not admitted), the respondents admit that the words relied on as the foundation of the imputations were spoken by the first respondent. The defence goes on to deny that the words in question, in their natural and ordinary meaning, gave rise to the imputations pleaded in the Statement of Claim. It is specifically pleaded that the words in question "in the context of the broadcast pleaded . . . did not bear or were not understood to bear or were not capable of bearing the said meanings". In support of these denials the defence sets out the "natural and ordinary meaning" attributed to the words by the respondents.

81. The defence then alleges that if the imputations particularised by the appellant were published by the respondents "such defamatory matter was true and it was for the public benefit that the publication complained of should be made". That is the defence of "truth" recognised by s 15 of the Defamation Act 1889 ("the Act").  Later it is pleaded that "if any of the broadcasts complained of are found to be defamatory of the plaintiff" such defamatory matter was published in circumstances giving rise to the defence of qualified protection pursuant to s 16(1)(h) of the Act.  It should be noted that in pleading s 16(1)(h) the defence does not refer to the imputations, but rather to the broadcasts.  In consequence it is not clear whether the respondents are referring to the imputations alleged in the Statement of Claim or those asserted in the defence as being the true meaning of the words used.

82. Subject to any issue arising from the matter referred to in the last sentence, the pleading to the extent summarised above is unobjectionable and complies with the Uniform Civil Procedure Rules. Issue was clearly joined as to whether or not the words used by the first respondent supported the imputations alleged by the appellant. For the appellant to succeed the jury would have to accept the imputations alleged in the Statement of Claim. If the respondents succeeded on their contention as to the correct meaning, then it would follow that the appellant had not made out his case with respect to the imputation; in other words, he would fail. Each imputation would, of course, have to be considered separately. If the respondents succeeded in establishing a defence under either s 15 or s 16(1)(h) with respect to the imputations alleged by the appellant they would also succeed.

83. However, the defence does not stop there; it goes on to allege in the alternative that if the "words complained of" were defamatory, those words "in their natural and ordinary meaning" conveyed some or all of the following imputations:

"That the plaintiff was a rapist who had raped on more than one occasion."

"That the plaintiff had a significant criminal record."

"That the plaintiff had convictions for the offences of stealing, rape, and unlawful assault."

"That the plaintiff was unfit to hold a senior position in ATSIC".

Those meanings were significantly different from the imputations alleged by the appellant. The defence then alleged that the imputations asserted by the respondents were true and that it was for the public benefit that the publication complained of was made (the s 15 defence).

84. That latter defence is, as conceded by counsel for the respondents, based on the decision of the Court of Appeal in Polly Peck Holdings PLC v Trelford [1986] QB 1000.  That decision dramatically altered the common law in England.  The previous position was established by Bremridge v Latimer (1864) 12 WR 878, Watkin v Hall (1868) LR 3 QB 396, and see Gatley on Libel and Slander (6^th ed) paras 1047-8.  The position prior to Polly Peck could be summarised by saying that a defendant could not place on the words a meaning of his own and plead that, given such meaning, their publication was justified.  The question which arises on this appeal is whether or not a Polly Peck defence can be pleaded in Queensland.

85. The critical passage in Polly Peck is in the judgment of O'Connor LJ at 1032;  it is quoted in the reasons of the Chief Justice.  All I need add is that one finds in those reasons reference to Slim v Daily Telegraph Ltd [1968] 2 QB 157 and Speidel v Plato Films Ltd [1961] AC 1090, as being decisions which called for the law as laid down in Bremridge v Latimer and Watkin v Hall to be reviewed.

86. As pointed out by the Chief Justice, Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519 at 526 ff considered Polly Peck and concluded that the principle established therein was contrary to the basic rules of common law pleading and ought not be approved and applied in Australia.  They considered the law as stated in Bremridge v Latimer and Watkin v Hall should still be applied here.  They found support for their position in the judgment of the Court of Appeal of New Zealand in Templeton v Jones [1984] 1 NZLR 448.  The most critical passages, in my view, in the judgment of Brennan CJ and McHugh J are those quoted by the Chief Justice here.

87. Gaudron and Gummow JJ in their joint judgment in Chakravarti did not consider Polly Peck in any detail, but their reasoning at p 545-6 impliedly recognises that a defendant may ascribe his own meaning to the words published and direct a plea of justification to that meaning.  The other member of the court, Kirby J, did not advert to the point at all in his reasoning.

88. In the circumstances it cannot be said that the High Court has held that Polly Peck does not apply in Australia, though the powerful reasoning of Brennan CJ and McHugh J must be given due weight.  The question has been considered at single judge level in Australia since Chakravarti, but as yet there is no clear pattern emerging.  In some cases the Polly Peck defence has been approved, in others it has been rejected.  There is a useful article dealing with the topic in (2000) 74 ALJ 760.

89. Defamation law in Queensland has been codified in the Act, and there are some significant differences between that legislation and the common law. Section 4 of that Act defines "defamatory matter" as:

"Any imputation concerning any person . . . by which the reputation of that person is likely to be injured, or by which the person is likely to be injured in the person's profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise the person, is called 'defamatory', and the matter of the imputation is called 'defamatory matter' ".

Section 6 provides that it is "unlawful to publish defamatory matter unless such publication is protected, or justified, or excused by law" and s 7 provides that the unlawful publication of defamatory matter is an "actionable wrong".

90. It appears to follow from that that for Queensland the emphasis must be on the "imputation" and not the "publication"; each imputation founds a separate and distinct defamation. So much appears to have been recognised by McHugh J in Pervan v North Queensland Newspaper Company Ltd (1993) 178 CLR 309 at 333, by Dawson, McHugh and Gummow JJ in Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 230, and by Gaudron J in Bellino at 237.  In Pervan and Bellino the court was concerned with the equivalent of s 16(1)(h) of the Act and the observations therein made it clear that it was the imputation which had to be made in good faith or be fair comment before the excuse was established.  Here the justification alleged by the respondents is truth and public benefit (s 15 of the Act), but again it would follow that it is the imputation which must be true and for the public benefit.

91. To my mind it follows that in Queensland the focus at trial must be on the imputations alleged by the plaintiff, here the appellant. If the plaintiff fails to establish at trial that the words in question convey the imputations alleged in the Statement of Claim then the plaintiff fails. If those imputations are established, the defendant may nevertheless succeed by establishing with respect to those imputations a defence of truth and public benefit. Once the position is analysed in that way it becomes obvious that it is not to the point for a defendant to say that the words in question established some other imputation which could be justified as being true and for the public benefit. It is obvious that if such a false issue was raised on the pleadings much unnecessary time could be spent at trial disposing of it.

92. The decision of the Full Court in Mann v Mackay Television Ltd [1992] 2 Qd R 136 is interesting.  The case was argued on 10-11 April 1991 and judgment was delivered on 24 June of that year.  Notwithstanding that those dates were substantially later than the report of the decision in Polly Peck it was not referred to either in argument or in the judgments.  Significantly however there was reference to Speidel v Plato Films Ltd and Slim v Daily Telegraph Ltd, cases referred to in Polly Peck as supporting the change in the law made by that decision.  The head note to Mann states:

"In an action for damages for defamation a plea of truth and public benefit will be struck out if, as particularised, it alleges facts which are significantly different both in scope and in kind from allegations in the publication".

In his reasons Macrossan CJ said at 139:

"The fragmented paragraphs of the particulars of justification do not sufficiently meet the necessary proof of the accusations and do not sufficiently correspond to the detailed imputations which the plaintiff has specified.  They are both insufficient overall and embarrassing in their insufficient correspondence to the imputations which they purport to meet".

At 141, McPherson SPJ said:

"On the particulars pleaded, para 5 of the defence can scarcely claim to be a plea in substance of truth and public benefit that meets the defamatory matter alleged".

Whilst the decision cannot be regarded as an authority for the proposition that a Polly Peck defence is not permissible in Queensland, I regard the general approach adopted by the members of the Court as supporting the conclusion that a plea of justification must be directed towards the imputations relied on by the plaintiff and that a plea of justification to some imputation not relied on by the plaintiff would be otiose.

93. This case is not concerned with different nuances of meaning, or a less serious defamation, considerations discussed in Chakravarti.  In consequence I would prefer to leave further consideration of the problems that arise in those circumstances to another day.  The alternatives proposed here by the respondents are materially different from the imputations pleaded by the appellant.

94. Given the provisions of the Act, the requirements of the UCPR, and the criticism of Polly Peck by Brennan CJ and McHugh J in Chakravarti I have come to the conclusion that the Polly Peck defence is not available in Queensland and the appropriate law is that established by decisions such as Bremridge v Latimer, Watkin v Hall, and Templeton v Jones.

95. It follows that to the extent that the defence in question is based on Polly Peck it should be struck out.

96. I now turn to the issue of prolixity. The respondents have asked for trial by jury and in consequence the pleadings will be read to the jury. Given the defence as it stands, the jury would hear recited 25 times the meanings which the respondents say should be ascribed to the words used; that would mean on 25 times the jury would hear it alleged that the "plaintiff was a rapist who had raped on more than one occasion". In my view the only justification for drafting the pleading in its present form is a desire on the part of the respondents to impress the meanings they assert on the minds of the jury.

97. As the drafting of the statement of claim demonstrates, it is possible by cross‑referencing to raise all relevant issues in a clear and straightforward way.  At first instance the learned judge observed that "repetition is . . . often an aid to comprehension, particularly when something is to be conveyed orally".  There is truth in that statement, but it is not universally true.  The matter must be considered in the light of all the circumstances.  Here, the repetition of the passages I have referred to would prejudice the fair trial of the proceeding.  The pleading is prolix and vexatious.  For these reasons the paragraphs which offend on the ground of prolixity should be struck out. 

98. On the other issues, I agree with what has been written by the Chief Justice and Mackenzie J and do not wish to add anything.

99. It follows that so much of the defence needs to be struck out as objectionable that the preferable course is to strike out the whole of the pleading with leave to re‑plead. 

100. I would therefore order as follows:

1. appeal allowed;

2. orders made at first instance set aside;

3. order that the respondents' amended defence be struck out with leave to deliver a further amended pleading;

4. order that the respondents pay the appellant's costs of the appeal, and of the application, to be assessed on the standard basis.

101. MACKENZIE J:  The appellant applied under r 171 UCPR to a judge of the Trial Division to have the respondents' amended defence in proceedings for defamation struck out with leave to re-plead.  The application was unsuccessful except in a minor respect related to the "Polly Peck" defence.  He appeals on the following grounds:

"2.The primary Judge erred in law in holding that a so-called "Polly Peck defence" is available to the Respondents under Queensland law.

3. Further or alternatively, the primary Judge:

1. Erred in law, in failing to hold that the Respondents' Defence has a tendency to prejudice or delay the fair trial of the proceeding, and is frivolous or vexatious, or otherwise constitutes an abuse of the Court's process, insofar as it:

1. Denies the meaning attributed in the Statement of Claim to words complained of by the Appellant, where such meanings are the only intelligible meanings which can reasonably be attributed to the published words as ordinary words of the English language; and

2. Seeks to ascribe to such words, meaning which they are incapable of bearing as ordinary words of the English language;

2. Erred in law in holding that the meaning which the Respondents so pleaded:

1. Are meanings which it would be open for the jury to accept; and

2. Comprise a 'common sting' such as to entitle the Respondents to plead a so-called 'Polly Peck defence' (on the assumption that such a defence is available under Queensland law); and

3. Manifestly erred in the exercise of his discretion is failing to strike out such aspects of the Respondents' Defence.

4. The primary Judge erred in law in holding that the Respondents' Defence did not breach the Criminal Law (Rehabilitation of Offenders) Act 1986, by disclosing convictions in respect of which the rehabilitation period had expired, on the ground that the Appellant wished to disclose such convictions.

5. The primary Judge:

1. Erred in law, in failing to hold that the Respondents' Defence contravenes Rule 149(a) of the Uniform Civil Procedure Rules, because it is not 'as brief as the nature of the case permits’; and

2. Manifestly erred in the exercise of his discretion, in failing to strike out the Defence on the ground that it is unnecessarily repetitive and prolix."

102. The first respondent is the presenter of a current affairs radio program broadcast by the second respondent and other radio stations including ones in Queensland. The alleged defamatory statements were made in seven programs broadcast in 1995 and 1996. Some occurred in interviews with public figures, some in talkback segments and some in commentary by the first defendant.

103. Broadcasting of the words allegedly used is admitted with respect to all but the first program. In relation to it, the broadcast is not admitted because the respondents are unable to say, despite reasonable inquiries, whether it occurred. In that program there were references to rape charges and the criminal record of an ATSIC Commissioner which are alleged to relate to the applicant although he is not mentioned by name.

104. The full text of each broadcast is annexed to the amended statement of claim. The appellant isolates particular passages and pleads a defamatory meaning in each instance. In the amended defence the respondents deny those meanings and rely on other meanings which are set out with respect to each passage complained of. The effect of the defence is that, if what was said is defamatory, defences of truth and public benefit (with and without reliance on the principle attributed to Polly Peck (Holdings) Plc v Trelford (1986) QB 1000), qualified protection and, in relation to publication in New South Wales, contextual truth, are relied on. 

105. The way in which the defence is expressed in part raises the Polly Peck defence.  The learned judge who heard the original application was not asked to rule on the availability of the defence in Australia or Queensland.  However, it was submitted by counsel for the appellant, in reliance on the judgment of Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, that the Polly Peck defence was not part of the common law of Australia. 

106. In the alternative it was argued that even if such a defence is available in Australian jurisdictions where the law of defamation remains (wholly or partly) the common law, it is not available in Queensland. It was submitted that the Defamation Act 1889 precluded the application of the principle. 

107. It may conveniently be mentioned at this point that the respondents, but not the plaintiff, have sought trial by jury and that one of the complaints made about the manner of pleading of the defence was excessive repetition of meanings relied on by the respondents. The repeated phrases were:

"A.that the plaintiff was a rapist who had raped on more than one occasion;

B.that the plaintiff had a significant criminal record;

C.that the plaintiff had convictions for the offences of stealing and rape;

D.that the plaintiff was unfit to hold a senior position in ATSIC;"

Most were repeated on 25 occasions.  It was submitted that the amended defence was therefore "excessively repetitious and prolix" and in contravention of the requirements of r 149(1)(a) UCPR which requires that a pleading must be as brief as the nature of the case permits.

108. With respect to an argument that repetition would aid the jury's comprehension of the issues, it was submitted that it was nevertheless, not a permissible form of pleading and that furthermore, it would give "great forensic advantage" to the respondents. It would not be difficult for the degree of repetition in the amended defence to be avoided by drafting it in a more economical way, but it is a separate question whether it is objectionable in its present form.

109. On this aspect of the matter the learned judge of the trial division's conclusion is expressed in the following paragraph.

"26.In support of the argument that the amended defence is excessively repetitious and prolix the plaintiff relied inter alia on rule 149(1)(a) of the Uniform Civil Procedure Rules which provides that a pleading must be as brief as the nature of the case permits.  There is a good deal of repetition of the alleged alternative meanings in the amended defence, as I have related, but on behalf of the defendants it was argued that the amended defence necessarily repeats the alternative imputations.  The pleading of the alternative imputations is relevant first to explain the defendants' reasons for denying the imputations alleged on behalf of the plaintiff, as is necessary if rule 166(4) of the Uniform Civil Procedure Rules is to be complied with; and see Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, at p. 528 per Brennan C.J. and McHugh J.  The alleged alternative imputations are then repeated when the Polly Peck defence and the defence of contextual truth are pleaded.  It would have been possible for the defendants to abbreviate their pleading by referring, subsequently to paragraph 16 when necessary, to the alleged alternative imputations set out in that paragraph.  But the result would have been a complicated, and possibly confusing, series of references.  That may have made the amended defence shorter, but more difficult for the jury to comprehend when read out at the beginning of the trial.  At all events if the trial judge is convinced that the amended defence is too wordy he or she can take steps to ensure that any untoward effects of such wordiness can be eliminated.  Repetition is, however, often an aid to comprehension, particularly when something is to be conveyed orally.  In those circumstances I am not persuaded that the amended defence should be struck out on the grounds of excessive repetition and prolixity."

110. I am inclined to the conclusion that there was no sufficient justification for departing from the requirements of the rule to the degree that was done, while giving due regard to the arguments to which reference has been made above. In my view, it is appropriate for any possible difficulties to be remedied before trial rather than at trial. If the respondents can successfully replead, it may be that ultimately the jury would have to turn their minds to what would effectively be a cross-referencing of the matters relied on by way of defence. However, the basis of the defence case can easily be explained succinctly in opening the defence case at the latest, with the result that the kind of impact complained of by the appellant is likely to be less than it would be by excessive repetition of the imputations that would occur on the pleadings as they stand if the ordinary practice of reading the pleadings to the jury at the commencement of the trial were followed.

111. Since the outcome of this appeal will be that repleading will be necessary for other reasons, it was desirable to state my conclusion on the issue to assist the process of repleading and avoid, if possible, repetition of this particular argument, even though what will ultimately be pleaded will probably not be the same in content as presently pleaded.

112. With respect to the issues raised by ground 3, the applicant submitted firstly that the pleading did not comply with r 166(4) UCPR because it did not contain genuine grounds for denial. Secondly, he submitted that the denials and alternative meanings advanced were plainly tendentious, so that the defence had a tendency to prejudice or delay a fair trial, was frivolous or vexatious, and constituted an abuse of the court's process. Thirdly, he argued that the meanings asserted as alternatives were so vague as to make the pleading objectionable.

113. The relevant passages from the text of the broadcasts, the imputations alleged by the appellant and the respondent's imputations are set out sufficiently in the Chief Justice's judgment. There is therefore no need for me to repeat them further.

114. Several of the appellant's imputations are concerned with what was said by the first respondent about his criminal record. Reference to the criminal history shows that he was convicted of a number of offences. The first appearance was in the Children's Court. The next was in the Supreme Court. The rest were in the Magistrates Court. The sequence of convictions is as follows:

115. Only the rape was dealt with on indictment. The stealing and the unlawful assault appear to have been dealt with summarily by Magistrates and the rest are summary offences.

116. Then there were further entries which, from the tenor of the broadcasts, appear to have been misunderstood at first. The entries relate respectively to the Supreme Court, the Court of Criminal Appeal and the High Court. They are as follows:

Although the outcome of the new trial does not appear on the criminal history it is pleaded that he was not convicted on the retrial. 

117. It is in the context of that criminal history that the alternative meanings relied on by the respondents must be considered. I have had the opportunity of reading the Chief Justice's analysis of the passages complained of and the respective meanings attributed to them by the parties. I substantially agree with his analysis and his conclusion that the pleadings in the form in which they stand do not meet the requirements of the Uniform Civil Procedure Rules and should have been struck out.

118. I turn now to the grounds relating to the "Polly Peck" defence.  The alternative meanings relied on by the respondents are set out in paragraph [107] above.  They are relied on as the foundation of the aspect of the defence which is admittedly based on Polly Peck (Holdings) PLC v Trelford (1986) QB 1000. 

119. The appellant relies particularly on a passage from the judgment of Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, 527 and an argument that the Defamation Act is incompatible with the application of the Polly Peck defence in Queensland.  Passages from the judgment of Brennan CJ and McHugh J and of Gaudron and Gummow JJ in Chakravarti, Polly Peck and Templeton v Jones (1984) 1 NZLR 448 relevant to discussion of the issue are sufficiently set out in the judgment of the Chief Justice and need not be repeated.  It is sufficient to say that no clear majority view can be derived from Chakravarti.

120. Reference must also be made to Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309, 317 where the majority (consisting of Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) expressly left open the question whether or not there was a separate cause of action under the Defamation Act 1889 in respect of each defamatory imputation.  McHugh J at 333 said that the reference to "defamatory matter" in s 377(8), by reason of the definition in s 366 (now ss 16(1)(h) and 4 of the Defamation Act) was referable to the imputations arising from the publication. 

121. In Bellino v Australian Broadcasting Corporation (1995-6) 185 CLR 183, 230 the joint judgment of Dawson, McHugh and Gummow JJ adopts McHugh J's opinion in Pervan.  Footnote [137] to the statement "defamatory matter is defined to mean a defamatory imputation concerning the plaintiff" makes it plain that that is what was done.  The previous reservation of the question by the majority in Pervan is not commented upon.  Further, Gaudron J (at 237) also expressly adopts McHugh J's opinion in Pervan without further elaboration. 

122. On the basis of the views of those four judges, if there are unlawful publications of separate imputations of the kind defined in s 4 of the Defamation Act each constitutes a separate cause of action.  Whatever the full implications are, on the basis of the dicta in Bellino, the essential focus of the cause of action for defamation is, in the first instance, on the imputation pleaded by the plaintiff.  If the plaintiff fails to establish that the words published bear the imputation relied on, the action fails.

123. The degree of latitude allowed to a plaintiff to succeed, without amendment, where there is open, on the evidence, a meaning which is a departure from the precise pleading under the UCPR is problematical. One solution proposed, in a post Chakravarti analysis of the problem in a common law setting by Ormiston JA and Charles JA in David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24 (9 March 2000), focuses on the extent of the variation.  The notion is developed that the plaintiff would only be allowed to have a meaning which was not precisely that pleaded considered by the tribunal of fact if it was comprehended by or simply a variant of or a nuance of expression or meaning of the pleaded imputation.  Whether such latitude is open under the Defamation Act and UCPR need not be finally answered in the present case since what is pleaded by the defendant in support of the Polly Peck defence is significantly different from what is pleaded by the plaintiff and cannot even be brought within such categories. 

124. In my view the matter may be approached on the basis that, as a general proposition, UCPR require a plaintiff to plead with sufficient precision what his case is. It follows from this that where the cause of action arises from identification of an imputation which is "defamatory matter" the plaintiff's pleading will ordinarily be taken as delimiting the ambit of the case. If the imputation is not made out, because the defence establishes that the words used, in their natural meaning or by innuendo, do not mean what the plaintiff alleges the defendant will succeed. That will be a consequence of the defendant denying that the words naturally bear the meaning or support the innuendo alleged.

125. Where, however, the purpose of the defence is to plead protection, of which truth and public benefit under s 15 of the Defamation Act is an example, the delimitation of the ambit of the case by the plaintiff's allegations limits the defence to responding to those allegations.

126. Where the defence seeks to allege a substantially different meaning from that relied on and to claim protection for it on the basis of a common sting under the Polly Peck principle, in my view it falls beyond what is open to a defendant under the Defamation Act and UCPR.  In my view a defence of the Polly Peck kind relied on in this case is not available.

127. The final matter concerns ground 4. The tables of offences in paragraphs [114] and [116] above show that the only conviction in respect of which the rehabilitation period had not expired was the 1963 rape conviction (ss 3(2) and 5(1) and (2) Criminal Law (Rehabilitation of Offenders) Act, 1986).  Section 5 is concerned with defining when a convicted person is not obliged to disclose expired convictions and not with what anyone else may do. 

128. Section 6 provides, in respect of convictions where the rehabilitation period is expired and unrevived, that a person other than the convicted person shall not disclose such a conviction if he knows that the rehabilitation period has expired. Section 12(1) makes it an offence to contravene a provision of the Act. Such a prosecution can only be commenced by a person authorised by the Minister. Section 22(1) of the Criminal Code provides as follows:

"22.(1)Ignorance of the law does not afford any excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence."

129. While it may render the Criminal Law (Rehabilitation of Offenders) Act relatively ineffective, the only purpose of the qualification "if the person knows that the rehabilitation period has expired" seems to be to require that the person alleged to have contravened s 6 has adverted to the fact that there is such a thing as a rehabilitation period and knows that it has expired.  That implies knowledge of the existence of the Act and its effect, at least in that regard.  If that cannot be proved there is no contravention of s 6.  In that light it is questionable whether para 4(b) of the amended statement of claim does more than beg the question. 

130. Leaving aside the inaccuracies in what was said about the appellant's criminal record, by inference the 1963 rape is referred to in the first broadcast. It is also referred to in the fifth and sixth broadcasts and perhaps in the second, third, fourth and seventh. The third, sixth and seventh broadcasts refer to stealing and unlawful assault. The fourth and fifth refer to stealing.

131. There are other general statements suggesting other offences. In the first broadcast there is a reference to a criminal record as long as your arm; in the second, to other crimes; in the third, to a criminal record that runs for two pages; in the fifth "and so it goes on" after reference to specific offences. In the sixth, "a couple of pages long"; and in the seventh, to several other crimes. These passages are all specifically pleaded in the amended statement of claim. In passing it may be observed that para 45 of the statement of claim is capable of relating to the "1989 rape" irrespective of the intricacies of the Criminal Law (Rehabilitation of Offenders) Act although the specific reference to the "1989 rape" in para 46 may indicate that the preceding paragraph is intended to be wider.  With regard to s 48 there is a question whether it can be made out, even if the reason developed above does render the protection of the Act somewhat illusory.

132. In the Trial Division the learned judge expressed his conclusion on this argument in the following paragraphs:

"... disclosure of the convictions referred to in paragraph 5 of the amended defence was prohibited unless one of the three instances of permitted disclosure provided for in s. 6 applies to the case.  The construction of s. 6 is made difficult by the use of the word 'person' to refer variously to the convicted offender and to someone other than the offender, so that when the word appears for the fifth time n the section it is not immediately apparent to which of those people it refers.  The first instance of permitted disclosure, to which paragraph (a) applies, is it appears disclosure by the convicted offender, so that s. 6 provides in that instance that a convicted offender may disclose a conviction recorded against him or her provided he or she wishes to do so; otherwise he or she is prohibited from doing so.  The second instance of permitted disclosure, to which paragraph (b) applies, is disclosure by someone other than the convicted offender.  The third instance of permitted disclosure, to which paragraph (c) applies, may be disclosure by the convicted offender or by someone else.  It was not argued that this could be a case of either the second or the third instances.

This is a case of the first instance of a permitted disclosure provided for in s. 6.  The plaintiff, pleading as he did in paragraph 3 of the amended statement of claim, disclosed the 1979 conviction and showed he wished to disclose it.  By alleging in paragraph 5 of the amended statement of claim that, apart from the 1963 conviction and the 1979 conviction, he had never been convicted of any serious offence, he disclosed that he had other convictions.  While a possible construction of paragraph 5 is that he was alleging he had not been convicted of any offence other than those specified, in its context – which includes of course paragraphs 45 to 49 of the amended statement of claim and his prior discovery of his criminal history – the only reasonable construction that can be put upon it is that he was alleging that, even though he had been convicted of other offences, those other offences were not serious.  Had it been intended otherwise, paragraph 5 would have been a pleading that the plaintiff had not 'suffered' any other convictions.  Section 8(1) of the Criminal Law (Rehabilitation of Offenders) Act provides that it is lawful to claim, upon oath or otherwise, that a person against whom a conviction has been recorded has not suffered the conviction where the rehabilitation period has expired and the conviction has not been revived, except on an occasion which is not relevant to these proceedings.  In addition to disclosing his other convictions, the plaintiff evinced a willingness to have his criminal history scrutinized to establish the fact alleged in paragraph 5.  That scrutiny would not be possible without an examination of the record of his convictions.  It follows that the plaintiff wished to disclose the convictions recorded against him to enable him to prove the fact alleged."    

133. As the learned judge of the Trial Division points out, the context of the amended statement of claim does not suggest that, in the pleading, the appellant was taking advantage of s 8 of the Act. Rather, he was, it seems to me, taking issue with the degree of seriousness of his criminal record which might be inferred from some of the descriptions of it by the first respondent.

134. As the learned judge below and the Chief Justice point out, the criminal history was disclosed as potentially relevant before the defence was delivered. The nature of the record having been put in issue, it was open to the defendant to plead it to the extent considered necessary by way of response to what was alleged by the plaintiff. So far as the action is concerned, the criminal record was revealed in circumstances allowed by s 6(a) which is designed to remove any obstacle to the convicted person revealing expired convictions if he wishes. Whether an offence had been committed at an earlier stage is a separate question. It follows that the complaint in ground 4 is not made out.

135. I agree with the orders proposed by the Chief Justice.