Channel Seven Adelaide Pty Ltd v Manock

Citation: (2007) 232 CLR 245

A Summary.

Facts

The plaintiff, Dr Colin Manock, was a forensic pathologist. In March 1994, he conducted a forensic examination into the death of a young woman, Anna-Jane Cheney. In late August 1995, Cheney’s fiancé, Henry Keogh, was convicted of her murder. Manock appeared as an expert witness for the prosecution.

In early March 2004, the defendant, Channel Seven Adelaide Pty Ltd, broadcast a promotion for a forthcoming story on its current affairs programme, Today Tonight. In late March 2004, Manock commenced defamation proceedings in the District Court of South Australia against Channel Seven Adelaide arising out of this promotion. He claimed the promotion conveyed the imputation that he deliberately concealed evidence in relation to Keogh’s trials.

In mid-July 2005, Channel Seven Adelaide filed its further amended defence, in which it raised the defence of fair comment on a matter of public interest. The defence was supported by 10 pages of particulars.

In late September 2005, Master Rice struck out certain particulars of justification. Manock appealed to a single judge of the District Court against the failure of the master to strike out further particulars and Channel Seven Adelaide cross-appealed against further aspects of the master’s ruling. Judge Muecke struck out different particulars of justification. Manock then appealed to a single judge of the Supreme Court of South Australia against the failure of Judge Muecke to strike out all the particulars of justification. Bleby J referred the matter to the Full Court of the Supreme Court of South Australia. The Full Court allowed the appeal and ordered that the particulars of justification be struck out on the basis that the defence of fair comment must address the plaintiff’s pleaded imputation and that the particulars of justification pleaded by Channel Seven Adelaide would provide the factual basis for a comment which was different in substance from the plaintiff’s pleaded imputation.

Channel Seven Adelaide appealed against the Full Court’s decision to the High Court of Australia. It sought to have all of its particulars of justification reinstated. Manock filed a notice of contention, resisting the orders sought by Channel Seven Adelaide. He also filed a notice of cross-appeal, seeking to have the particulars which alleged that the promotion constituted fair comment on matters of public interest struck out.

Held, dismissing the appeal and allowing the cross-appeal:

Per Gleeson CJ:
(i) For the purposes of the defence of fair comment, the concept of fairness sets the limits of the comment an honest person, however opinionated or prejudiced, could form from the relevant facts. Fairness is not to be equated with objective reasonableness: at [3].

(ii) The allegations made by Channel Seven Adelaide in its promotions were statements of fact, not statements of opinion. Therefore, the defence of fair comment was not engaged: at [9]–[12].

Per Gummow, Hayne and Heydon JJ:
(iii) The four matters particularised as fair comment on matters of public interest by Channel Seven Adelaide were not statements of opinion. They were either statements of fact or, in the case of one particular, a statement impermissibly intermingling fact and opinion: at [38]–[40], [42]–[44].

(iv) For the purposes of the defence of fair comment, it is insufficient that the subject-matter of the comment or the “substratum of fact” is sufficiently indicated or notorious. So to allow it would be to transform the defence of fair comment on facts indicated and accurately stated into a defence of fair comment on indicated topics of public interest. Rather, the facts upon which the comment is allegedly based must be expressly stated, sufficiently referred to or notorious: at [49], [51], [63], [66]–[69], [72].

(v) To the extent that the four matters particularised as fair comment on matters of public interest by Channel Seven Adelaide were statements of opinion, they did not expressly state or sufficiently identify the facts supporting them, nor were they supported by notorious facts. On this basis, the particulars should be struck out: at [73]–[75], [96].

Per Gummow, Hayne and Heydon JJ (Gleeson CJ and Kirby J agreeing):

(vi) Even if Channel Seven Adelaide’s submission that its defence of fair comment needed to be directed towards the words complained of, rather than the meaning identified and relied upon by Manock, its defence of fair comment failed to be so directed. The words complained of alleged deliberate concealment of evidence on the part of Manock but the particulars individually did not disclose any deliberate failure to disclose: at [2], [78], [109], [169].

(vii) Channel Seven Adelaide’s submission that its defence of fair comment needs to be directed towards the words complained of, rather than the meaning identified and relied upon by Manock, proceeds upon a false dichotomy between the words used and their meaning. Words only gain significance through their meaning. Therefore, there is no relevant difference between the words used and their meaning: at [2], [84], [109], [169].

(viii) Channel Seven Adelaide’s submission that its defence of fair comment needs to be directed towards the words complained of, rather than the meaning identified and relied upon by Manock, also proceeds on an anomalous treatment of the meaning of the comment. Channel Seven Adelaide accepts that the meaning of the comment is relevant to other aspects of this case but not to this crucial aspect of the case: at [2], [85], [109], [169].

(ix) Channel Seven Adelaide’s submission that its defence of fair comment needs to be directed towards the words complained of, rather than the meaning identified and relied upon by Manock, would also lead to an injustice, in that, if it were allowed to proceed, it would be able to defend itself on the basis that Manock was incompetent, which is a less serious meaning than the meaning of deliberate concealment of evidence relied upon by Manock. On this basis, the particulars should also be struck out: at [2], [86], [87], [96], [109], [169], [172].

Per Gummow, Hayne and Heydon JJ:
(x) It is not sufficient that an honest person, however prejudiced, exaggerated or obstinate in his or her views, could hold the opinion that there had been some deliberate concealment of evidence on the part of Manock. Such an opinion has to be one that was reasonably open on the facts. Channel Seven Adelaide’s submission that reasonableness forms no part of the defence of fair comment should be rejected: at [88]–[90].

Per Gummow, Hayne and Heydon JJ (Gleeson CJ and Kirby J agreeing):
(xi) Channel Seven Adelaide’s particulars could not lead an honest person reasonably, or a fair-minded person acting honestly, to the opinion that Manock had deliberately concealed evidence. On this basis, the particulars should also be struck out: at [2], [91], [92], [96], [109], [169].

(xii) The Full Court of the Supreme Court of South Australia did not commit the error of asking whether the facts pleaded by Channel Seven Adelaide were capable of proving the truth of the meaning pleaded by Manock: at [2], [94], [109], [169].

Per Gummow, Hayne and Heydon JJ (Gleeson CJ agreeing):
(xiii) Channel Seven Adelaide should not be granted leave to replead: at [1], [97]–[101].

Per Kirby J:
(xiv) The promised disclosure of “new Keogh facts” is a statement of fact. However, the remaining particulars, which alleged the promotion constituted fair comment on matters of public interest, could be statements of opinion in the form of remarks, observations, conclusions or criticisms based on foreshadowed facts. In reaching this conclusion, it is important to consider the need not to deprive Channel Seven Adelaide of its defence at an interlocutory stage, in advance of the trial, the need to understand the promotion in its proper context, being broadcast by a commercial television network to a mass audience, and the need not to reduce the scope of the defence of fair comment: at [120]–[132].

(xv) In determining whether the facts supporting the comment were sufficiently identified in the promotion, it is necessary to take into account technological changes. It would be open to the tribunal of fact to conclude that the promotion sufficiently identified the facts upon which the comment was based by adequately specifying to viewers where they could find the facts relied upon by the commentator. A failure to adapt the defence of fair comment to new technologies and formats would be to reduce effectively its scope: at [158]–[168].

(xvi) The particulars should be struck out on the basis that Channel Seven Adelaide’s defence of fair comment does not meet the meaning pleaded by Manock, not on the basis of the ambit and requirements of the defence of fair comment: at [173].

(xvii) Given that there were novel issues raised on appeal and that the case was decided on a basis which was raised only for the first time on appeal to the High Court of Australia, it would be unfair to Channel Seven Adelaide not to give it an opportunity to replead its defence: at [177]–[182].