Channel Seven Adelaide Pty Ltd v Manock

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ.,Gummow,Hayne,Heydon JJ,Kirby J
• Judgment Date: 13 December 2007
• Neutral Citation: [2007] HCA 60,2007-1213 HCA A
• Docket Number: A21/2007
• Date: 13 December 2007

Channel Seven Adelaide Pty Ltd

Appellant

and

Dr Colin Manock

Respondent

[2007] HCA 60

Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ

A21/2007

HIGH COURT OF AUSTRALIA

Channel Seven Adelaide Pty Ltd v Manock

Defamation — Defences — Fair comment — Promotion of a future edition of a television programme alleged to be defamatory — Defendant pleaded fair comment on a matter of public interest — Whether the allegedly defamatory statements constituted fact or comment — Distinction between fact and comment — Whether the facts on which the comments were alleged to be based were sufficiently identified — Construction of the rule from Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 — Relevance of imputations conveyed by the promotion — Whether the alleged comments were fair — Whether reasonableness is a requirement of fairness.

Defamation — Pleading and practice — Whether defence of fair comment should have been struck out — Whether defendant should be given an opportunity to re-plead defence of fair comment.

Words and phrases — ‘comment’, ‘fact’, ‘fair’, ‘imputation’, ‘substratum of fact’, ‘sufficiently indicated’.

Representation:

R J Whitington QC with S J Doyle for the appellant (instructed by Kelly & Co Lawyers)

G O'L Reynolds SC with N J T Swan), R W Potter and A Williamson for the respondent (instructed by Lawson Smith Lawyers)

ORDER

1. Appeal dismissed.

2. Special leave to cross-appeal be granted and the cross-appeal be treated as instituted, heard instanter and allowed.

3. Set aside orders 2–5 of the Full Court of the Supreme Court of South Australia made on 18 October 2006 and, in their place, order that paragraphs 3.1–3.39, 8.1 and 8.2 of the further amended defence be struck out.

4. The appellant pay the respondent's costs of the appeal and the cross-appeal.

1 Gleeson CJ. The facts and issues in the appeal are set out in the reasons of Gummow, Hayne and Heydon JJ (‘the joint reasons’). I agree with the orders proposed in those reasons.

2 What the joint reasons describe as issues (c), (d), and (e) come down to a question similar to that which Eady J formulated for decision in Lowe v Associated Newspapers Ltd1. There a newspaper had described a ‘manoeuvre’ of the claimant as ‘a repellent piece of financial chicanery.’ The defamatory meaning alleged was that the claimant had obtained ownership of a football club ‘by underhand and dishonest means’. Eady J said that the plea of fair comment was ‘to be scrutinised in order to see whether the particulars are such that a person could indeed honestly come to the conclusion, in the light of them, that the claimant had been dishonest.’ 2 In the present case, the meaning alleged was based on an assertion in the published matter, which related to a murder trial, that there was evidence ‘they kept to themselves’, with a background picture identifying the respondent with ‘them’. The respondent had been an expert witness at the trial. The meaning alleged in the pleadings, and assumed for the purposes of the present argument to have been conveyed, was that the respondent had deliberately concealed evidence. It was in substance the same as what had been said in the publication. To this, the appellant raised a defence of fair comment. The particulars, unlike the published matter, set out the facts on which the ‘comment’ was said to have been based. Those facts included allegations of inadequacy of the respondent's investigation into the death of the victim, inaccuracy and inconsistency in his evidence, failure to act promptly in certain respects, absence of sound scientific grounds for some of his reasoning, and errors of various kinds. Neither individually nor collectively did they raise matters such that a person could honestly have come to the conclusion, in the light of them, that the respondent had deliberately concealed evidence. I agree with what is said in the joint reasons about issues (c), (d), and (e).

3 The issues described in the joint reasons as (a) and (b) are related, although distinct. The protection from actionability which the common law gives to fair and honest comment on matters of public interest is an important aspect of freedom of speech. In this context, ‘fair’ does not mean objectively reasonable. The defence protects obstinate, or foolish, or offensive statements of opinion, or inference, or judgment, provided certain conditions are satisfied. The word ‘fair’ refers to limits to what any honest person, however opinionated or prejudiced, would express upon the basis of the relevant facts.

4 In Pervan v North Queensland Newspaper Co Ltd3, McHugh J described as ‘the conventional case of fair comment’ one where the basis of the comment appears in the publication and the reader (or viewer, or listener) is able to judge whether the facts justify the comments. He said that was very different from what he called ‘the Kemsley situation’. It will be necessary to return to consider exactly what such a situation is, but, in one respect, this description of the conventional case may be unduly narrow. The defence is concerned with comment based on facts. The truth of those facts will affect the viability of the defence. The distinction between a comment (such as an expression of an opinion, or inference, or evaluation, or judgment) and the factual basis of the comment, blurred though it may be in many communications, affects the application of the defence in a number of ways. So long as a reader (or viewer, or listener) is able to identify a communication as a comment rather than a statement of fact, and is able sufficiently to identify the facts upon which the comment is based, then such a person is aware that all that he or she has read, viewed or heard is someone else's opinion (or inference, or evaluation, or judgment). The relationship between the two conditions mentioned in the previous sentence is that a statement is more likely to be recognisable as a statement of opinion if the facts on which it is based are identified or identifiable.

5 However, to satisfy the requirements for the defence, it is not necessary that the facts upon which the comment is based be stated in the terms of the communication itself. The rationale is also satisfied if, to use the language of the majority in Pervan, the facts are ‘sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded’ 4. It is more accurate, therefore, to describe as conventional a case where the facts upon which the comment is based are stated in the terms of the communication, or are sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to identify it as comment on those facts and to assess for themselves whether the facts support the comment. If the purported facts upon which the comment is based are not true, the defence does not lie. Hence, Bingham LJ's summation that ‘comment may only be defended as fair if it is comment on facts (meaning true facts) stated or sufficiently indicated.’ 5 (We are not concerned, in this appeal, with questions that arise where there is a privilege that covers the statement of facts.)

6 There was argument in this case as to whether the majority in Pervan went too far in saying that the persons to whom the defamatory matter is published must be able to judge for themselves how far the opinion expressed in the comment is well founded. In Pryke v Advertiser Newspapers Ltd6, King CJ said:

‘A statement can be regarded as comment as distinct from allegation of fact only if the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts.’

That statement of principle was not in dispute. If the condition stated is satisfied, then in the ordinary case the person to whom the comment is published will be able to assess its foundation.

7 What is ‘the Kemsley situation’? The author of the headnote to the report of the case 7 summarised Lord Porter's opinion thus: ‘Newspapers, being submitted to the public, are a proper subject-matter of comment in the same way as literary works and the comment on them, in order to be fair, need not be confined to their literary content.’ That reflects what Lord Porter said at pages 355 and 356 of the report. What Lord Porter said, about matters submitted to the public, was substantially to the same effect as what had appeared in a leading text on the law of tort for some years before Kemsley v Foot and that, in turn, reflected the authorities referred to by the author of that text. The eighth edition of Salmond on the Law of Torts (for example), published in 1934, described the defence of fair comment in a way that went further than the customary descriptions. The author said 8: ‘A fair comment on a matter which is of public interest or is submitted to public criticism is not actionable.’ The reason for the defence was said to be this 9:

‘Comment or criticism is essentially a statement of opinion as to the estimate to be formed of a man's writings or actions. Being therefore a mere matter of opinion, and so incapable of definite proof, he who expresses it is not called upon by the law to justify it as being true, but is allowed to express it, even though others disagree with it, provided that it is fair and honest.’

As to matters submitted to public criticism, which he treated separately from matters of public interest (although obviously the two could overlap), the author said 10:

‘He who voluntarily gives up his right of privacy by submitting himself or his deeds to public scrutiny and judgment must submit to the exercise of a right of public comment. This right, therefore, extends to books and every form of published literature, works of art publicly exhibited, and public...