Cornish v Australian Broadcasting Corporation

HER HONOUR: These are proceedings for defamation before the Court today for the second listing hearing in accordance with the Practice Note (SC CL 4). Two matters were brought forward for the Court's determination.

The first was the plaintiffs’ application to file their fourth proposed reply in the form of a draft pleading, annexed as "A" to the affidavit of Mr Manwaring, sworn 1 May 2015. That draft pleading attempts the difficult task of pleading the matter of defeasance identified in s 31(4)(c) of the Defamation Act 2005 (NSW) as follows:

So far as the parties’ researches have ascertained, there is yet no authority as to particulars required to be proved in order to make good that matter of defeasance.

In Ahmed v Harbour Radio Pty Limited [2010] NSWSC 676, Simpson J remarked that, at that point, the Defamation Act 2005 (NSW) was still in relative infancy. Her Honour observed at [18] a potential complication in the proper construction of the statute but the issue there raised is not relevant to the point raised today.

What has caused difficulty for the plaintiffs is the requirement to plead adequate particulars to sustain the contention that the defendants had reasonable grounds to believe that the opinion was not honestly held by each of the relevant commentators at the time the matter complained of was published.

The proposed reply attempts to address that matter with what will be (as I now understand from Mr Weaver's submissions) an argument that any opinion expressed by any of the relevant commentators was not an opinion relating to the plaintiffs but, rather, an opinion relating to other police officers referred to in the matter complained of.

The particulars pleaded in support of the matter of defeasance at present are as follows:

I accept, as submitted by Mr Sibtain on behalf of the defendant, that those particulars are not capable of sustaining the matter of defeasance identified in the statute.

I accept that it would be at least arguable that, if the communications made by each of the relevant commentators to the defendant were such as to make plain that their opinions related, not to the plaintiffs, but to other police officers, there may be occasion for pleading the matter of defeasance identified in the section. However, I do not think the current particulars achieve that end or are capable of achieving that end.

Accordingly, leave to file the fourth proposed reply, as currently pleaded, should be refused since, in my view, as currently pleaded, it is not reasonably arguable as a matter of defeasance in accordance with the statute. It was observed during argument that in order to plead that matter, the plaintiffs would need to know what were the communications made by the third party commentators to the defendant. As it happens, that information will come into the plaintiffs' possession properly in a different context by reason of the interrogatories it is agreed should be answered. Nothing in the present judgment should be understood to foreclose the plaintiffs from bringing forward a differently pleaded reply in due course, depending on what information is revealed by the answers to those interrogatories.

The second issue brought forward was the question of discovery and interrogatories which, happily, the parties have agreed upon during a short adjournment this morning.

The orders are:

I order the plaintiffs to pay the defendant’s costs of and incidental to the hearing today.