|
Since the High Court’s decision in Chakravarti [1]
there is considerable doubt whether - and to what extent - the
defence commonly identified with the decision of the English
Court of Appeal in Polly Peck [2]
is available in Australian defamation actions. In this
article, it is contended that, except in very narrowly confined
circumstances, the defence should no longer be recognised.
In the history of the common law, certain case-names have
become synonymous with the principle of law for which the case
stands as the first or leading authority [3].
Few have had names as apposite as "Polly Peck" [4],
which has become the byword for the practice of permitting defendants,
in defamation cases, to plead that the publication of defamatory
words is defenceable - usually, although not invariably
[5], on the grounds
that the words are true and (where this is an element of the
relevant defence) were published for the public good [6]
- on the basis that the words convey a different meaning from
that alleged by the plaintiff.
The validity of this principle has been called in question
by remarks of Brennan CJ and McHugh J in Chakravarti v. Adelaide
Newspapers Limited [7],
an appeal from the Full Court of the Supreme Court of South
Australia [8]
in which the central issue concerned the respondent newspaper’s
defence that the reports on which it was sued constituted fair
and accurate reports of proceedings at a Royal Commission. In
relation to this issue [9],
and also in relation to issues concerning the assessment of
damages [10],
the unanimous conclusion of the High Court was largely in favour
of the appellant (who had been the plaintiff at first instance).
Although questions regarding the validity of a Polly Peck
defence had been argued in the course of the appeal [11],
and although the remarks of Brennan CJ and McHugh J on this
subject were plainly reasoned and deliberate [12],
it may be strictly correct to characterize such remarks as "obiter".
Nonetheless, such a powerful and authoritative refutation of
a principle which has gained wide acceptance in both England
[13]and
Australia [14]warrants
a reconsideration of the principle’s continuing validity.
The Polly Peck Defence
Generally, a Polly Peck defence arises where the plaintiff
pleads a "false innuendo" - that is to say, where the plaintiff's
pleading attributes to the defamatory words a particular meaning,
which is said to be their natural and ordinary meaning [15]-
and the defendant ascribes a different meaning to the words
themselves, either alone or in the context in which they appear.
Different considerations arise where the plaintiff pleads
a "true innuendo" - that is to say, where the plaintiff contends
that a defamatory meaning is conveyed by the words complained
of, having regard to some extraneous knowledge held by persons
(or some of them) to whom the defamatory words were published
[16].
A Polly Peck defence is usually a defence of justification
- that the words published, by themselves or in their context,
are true in substance and fact. A similar defence may
be raised by way of fair comment, or (perhaps [17])
qualified privilege. What distinguishes a Polly Peck
defence from an "ordinary" defence of justification, fair comment
or qualified privilege is that the defence is premised on an
allegation that the publication sued upon conveys a meaning
different from that for which the plaintiff contends.
How this happens may best be illustrated by an example. Take
the case [18]of
an entertainer, who happens to be a married man. In a
newspaper review of the entertainer’s performance, the description
"camp" is used. He alleges that, in its natural and ordinary
meaning, this expression implies that he is homosexual, which
(he being a married man [19])
is defamatory. The publisher denies that the word complained
of conveys this meaning, and asserts that it implies merely
that the entertainer’s style of performance is highly exaggerated,
extravagant and ostentatious. In support of this interpretation,
the defendant may rely on other passages forming part of the
same review, focussing on the entertainer’s style of performance
rather than the entertainer’s sexual orientation. Based
on the meaning for which it contends, the publisher may seek
to argue either that the use of the word "camp" is an accurate
description of the plaintiff’s performance (i.e., a defence
of truth), or - more pertinently - that it constitutes fair
comment in respect of the plaintiff’s performance.
If the defendant is permitted to advance such a plea, it
will significantly affect the course of the trial, and may also
affect the outcome. If there is no Polly Peck defence,
and assuming that any imputation of homosexuality is indefenceable,
the only question for the tribunal of fact will be to consider
whether the word "camp" conveys this meaning and, if so, to
assess damages. If a defence of truth or fair comment
may be introduced, on the basis that the word "camp" is taken
to refer to the plaintiff’s style of performance, the evidence
on these issues may be wide-ranging, contributing substantially
to the length and cost of the trial.
If the tribunal of fact is a jury, there may be genuine grounds
for concern that an improper use may be made of evidence introduced
in support of the Polly Peck defence. Evidence suggesting that
the plaintiff’s performance is in execrable taste may (for instance)
influence the jury’s assessment of damages; and this may happen
despite any judicial direction that, if the jury accepts the
meaning which the plaintiff places on the defamatory word, the
jury should disregard all evidence adduced with reference to
any alternative meaning for which the defendant contends.
What makes this branch of the law particularly complex is
that ordinary words of the English language, and especially
informal and slang words, are "imprecise instruments for communicating
the thoughts of one man to another" [20]. Moreover, "[t]here are
no words so plain that they may not be published with reference
to such circumstances and to persons knowing the circumstances,
as to convey a meaning very different from that which would
be understood from the same words used under different circumstances" [21].
The plaintiff will naturally contend for the most harmful meaning
attributable to the words complained of. The defendant
will seek to attribute to the same words a more innocent meaning
- one which is capable of being justified, or regarded as fair
comment. The jury may, however, think that the natural
and ordinary meaning lies somewhere between these extremes.
Suppose that the jury is satisfied that the word "camp" implies
a lack of manliness, but not necessarily homosexuality.
On the one hand, the plaintiff has not based his claim
on such an imputation; and on the other hand, the defendant
has not sought to defend that imputation. Is the court
entitled to find in the plaintiff’s favour on the basis that
the word complained of conveys a defamatory meaning, albeit
a different and (arguably) less serious meaning than that asserted
by the plaintiff ? And if so, should the jury consider
whether a charge of effeminacy is defenceable - either because
it is true, or because it amounts to fair comment - where the
case advanced by the defendant seeks only to support an imputation
that the plaintiff’s performance was exaggerated, extravagant
and ostentatious ?
The Law Before Chakravarti
In Watkin v. Hall [22], Blackburn J. - commenting on the earlier
case of Brambridge v. Latimer [23] - said:
"I think
the decision [is] correct, because in that case a portion of
a newspaper article being set forth in the declaration, with
an innuendo, the defendant endeavoured to shew that if the whole
article was taken, the plaintiff would have had a different
cause of action, and he sought, by his plea, to set out the
whole article, and, so, to justify it as true in fact. This
was a matter utterly irrelevant to the question at issue, whether
he had published the libel charged in the declaration."
This view held sway, both in England and in Australia, for
over a century. In New Zealand it was affirmed as recently as
1984, when the Court of Appeal concluded it was "... elementary
that a defendant may not justify - that is to say, prove the
truth of - that of which the plaintiff does not complain" [24].
In Kennett v. Farmer [25], Nathan J. described as the "conventional
view" that expressed in the 8th edition of Gatley on Libel and
Slander [26]; viz. -
"Where however
the plaintiff relies on more than one false ‘innuendos’ he is
stating how he is going to present his case, and the defendant
cannot allege that the words have some other natural and ordinary
meaning and then justify that."
As with so many other attempts to "modernise" the law, the
beginnings of a groundswell of agitation to overrule this traditional
approach can be traced to Lord Denning, and specifically to
his speech (as a member of the House of Lords) in Plato Films
Ltd v. Spiedel [27], and his judgments (as Master of the Rolls) in
Slim v. Daily Telegraph Ltd [28] and SK Holdings Ltd v. Throgmorton
Publications Ltd [29]. But the question did not arise squarely
for consideration until two cases came before the English Court
of Appeal in 1985. Lucas-Box v. News Group Newspapers
Ltd [30] was argued some months after the Polly Peck case, but the
decision was handed down a few weeks earlier, and was approved
and followed by the Court in Polly Peck. In the result,
there was unanimous support from five members of the Court of
Appeal - Lord Justices Ackner, O’Connor, Robert Goff, Mustill
and Nourse - supporting the proposition that [31]:
"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
... ."
In the ensuing decade, this proposition was readily embraced
in Australia, by the Full Court of the Supreme Court of Western
Australia [32]; by three judges sitting at first instance in the
Supreme Court of Victoria [33]; by two judges sitting at first instance
in the Supreme Court of the Australian Capital Territory [34]; by
one member of the Queensland Court of Appeal [35]; and by a judge
sitting at first instance in the Supreme Court of the Northern
Territory [36].
In the writer’s experience, Polly Peck defences have been
commonly pleaded, both prior to and since the decision in Chakravarti [37],
although not to the same extent in New South Wales as in other
jurisdictions. This may be explained by the fact that,
in cases where a Polly Peck defence of justification might be
available, the statutory defence of "contextual truth" may be
a more attractive option to New South Wales pleaders [38]. In
Woodger [39], Miles C.J. was "unable to see where the difference
lies ultimately between the defence of contextual imputation
in New South Wales and the principles that lie behind the Polly
Peck judgment" [40]. Meanwhile, in the United Kingdom, the Polly
Peck principle has become firmly entrenched [41].
It should be noted, in passing, that the Polly Peck defence
is quite different in principle from, although in some ways
related to, other particular forms of the defence of justification.
One is the so-called defence of "partial justification"
- where the defendant, although unable to contend that the defamatory
words are wholly true, may be permitted to prove the truth of
a part of them [42]. So, if the defamatory imputation is that
the plaintiff, a solicitor, has been the subject of professional
disciplinary proceedings on three occasions, the defendant may
plead and prove a partial justification that this is true as
to one occasion [43]. This is not a Polly Peck defence, as
the defendant is seeking to justify a part of the defamatory
imputation sued upon by the plaintiff, rather than an entirely
different defamatory imputation.
Also distinguishable from the Polly Peck defence is that
form of defence which seeks to justify the "common sting" of
the pleaded imputations, although unable to prove the literal
truth of the entire publication. Although discussed in
the Polly Peck case, authority for this species of justification
has a far more venerable history [44]. Such a justification
properly addresses the "common sting" of the imputations pleaded
by the plaintiff, rather than the "common sting" of imputations
pleaded by the defendant which are different from those pleaded
by the plaintiff.
A Matter of Pleading
Before turning to Chakravarti [45] itself, it is pertinent to
consider the rules of pleadings and practice which form the
backdrop against which the validity of a Polly Peck defence
falls to be considered.
It is axiomatic that a plaintiff must plead the "material
facts" relied on as giving rise to a cause of action. The
defendant may admit or traverse the plaintiff’s allegations
and, depending on the rules of the court in which proceedings
are brought and the nature of the claim, may be required to
set out grounds for any non-admissions or denials, or even to
verify these matters by oath or affirmation. But if the
allegations in the plaintiff’s pleading have been properly placed
in issue, the success or failure of the plaintiff’s case depends
- at least in the first instance - on the plaintiff’s satisfying
the tribunal of fact, to the requisite standard, that the facts
alleged in the pleading are true.
No doubt there are situations in which a judgment may be
given for the plaintiff, even though the plaintiff’s proof falls
short of establishing all of the "material facts" pleaded. In
a debt action, the plaintiff may recover judgment for a smaller
amount than the amount sued for, if the evidence does not support
a judgment for the total claim. In a negligence action,
the plaintiff may succeed although the evidence falls short
of proving all of the particulars of negligence averred in the
statement of claim, or on the basis of evidence substantiating
negligence less egregious than that which has been pleaded,
at least if the negligence found to have occurred is of the
same general character as that sued upon. Depending on
the degree of variance between the pleaded allegations and the
evidence at trial, the plaintiff may be required to amend; but
it is unlikely that any discretionary basis will exist to refuse
an amendment, unless some demonstrable and irreparable prejudice
has been occasioned to the defendant.
The plaintiff cannot, however, succeed on the footing that
the evidence adduced at trial establishes a basis upon which
the plaintiff might have, but has not, sued the defendant. Thus,
subject always to the court’s power to permit amendment where
appropriate, a plaintiff whose pleading alleges a negligent
mis-statement to a certain effect is not entitled to judgment
where the evidence establishes that a different representation
was negligently made, and that the plaintiff was injured by
relying on it.
Apart from traversing the plaintiff’s allegations, a defendant
may raise positive grounds of defence, by way of what is traditionally
called "confession and avoidance", such as a plea of licence
or consent in the case of a property tort. But any such
positive defence must answer the plaintiff’s case. A pleading
which takes the form of denying that the defendant committed
the conduct alleged by the plaintiff, alleging that the defendant
committed quite different conduct, and asserting a lawful defence
in respect of the conduct which the defendant claims to have
committed, is obviously objectionable.
Yet this is, in substance, the nature of a Polly Peck defence.
The plaintiff claims to have been wronged by the defendant’s
publication of matter containing certain imputations which reflect
adversely on the plaintiff. The defendant denies having
done so, but claims to have injured the plaintiff’s reputation
in a different way, and asserts a lawful excuse for having so
injured the plaintiff. In order to appreciate how this
singular approach to pleading came to be regarded as permissible
- let alone received endorsement from judges of the greatest
eminence - it is necessary to consider some features of the
historical development of the law of defamation.
The modern causes of action for libel and slander, or (in
those jurisdictions where the distinction between written or
permanent defamations and spoken or evanescent defamations has
been abolished) for defamation, is traceable to the criminal
jurisdiction of the infamous Court of Star Chamber. Thus
defamation was at first regarded as an odious and oppressive
branch of the law, and an impediment to free speech and other
civil liberties. The stigma historically attaching to
the law of defamation drew added emphasis from the practice,
until the late 18th Century, of removing from the jury all questions
other than the fact of publication. Public sentiment against
the then prevailing practice was heightened by the case of The
King v. Shipley (The Dean of St. Asaph’s Case) [46], which was a
prosecution for a seditious libel, in the form of a parodied
dialogue calling for an enlarged electoral franchise and other
democratic reforms. The great Lord Erskine appeared for
the defendant, and some of the heat generated at trial may be
gleaned from the report of the trial judge (Buller J.) [47]:
"As to the
verdict, there was much interruption on the part of the counsel
for the defendant, in my opinion improper. I will state
what I did. They brought in a verdict of guilty of publishing
only, which I refused to take; in which, I conceive, I did right.
The jury were asked if they found it a libel: they said,
no. An improper use was made of that: the counsel for
the defendant said, they find it no libel. The jury said
they found no such thing: they did not mean to find whether
it was a libel or not, one way or the other. As to the
observations made by the counsel upon the course pursued by
me on this occasion, if thrown out ad captandum, they might
as well have been spared. If it was meant to insinuate
that I had any wish against the defendant, it is as false as
it is scandalous."
On appeal, the majority - Lord Mansfield CJ and Ashurst J
- approved the course taken by the trial judge, of withdrawing
from the jury all issues other than that of publication. But
in a courageous and powerful dissent, Willes J. urged that juries
in defamation cases "have a constitutional right, if they think
fit, to examine the innocence or criminality of the paper, notwithstanding
there is sufficient proof given of the publication" [48], adopting
Blackstone’s characterisation of this right as a protection
against "the violence and partiality of Judges appointed by
the Crown" [49]. Though neither Erskine’s advocacy nor the
reasoning of Willes J. held sway in court, they carried the
day in another forum, and resulted in the passing of Fox’s Libel
Act in 1792 [50].
Thenceforth, the function of judges in defamation trials
was limited to deciding whether or not, as a matter of law,
the alleged publication is capable of bearing a defamatory meaning.
It became the sole province of the jury "to say whether
a libellous construction should be put upon it" [51].
For these historical reasons, the doctrine developed that
"neither the judge nor the jury were ... confined to the meanings
asserted by the parties" [52]. Thus has arisen the vexed question
whether a plaintiff, who does not rely on a "true innuendo",
is obliged to plead or particularise the precise meanings said
to be conveyed by the defamatory matter and, if so, whether
the tribunal of fact is bound merely to accept or reject the
plaintiff’s pleaded case. Traditionally, where the plaintiff
relied on a "natural and ordinary meaning" it was held that
the plaintiff need not identify the specific meaning relied
on, and may succeed if the tribunal of fact finds that any defamatory
imputation arises from the words complained of [53].
In more modern times, however, courts have increasingly come
to insist upon the plaintiff’s pleading, or furnishing particulars
of, the specific meanings which will be contended for at trial.
In New South Wales, because the statutory cause of action
arises from the publication of defamatory imputations rather
than defamatory matter [54], this practice is now regarded as mandatory.
Elsewhere, whilst there is no absolute requirement in
this regard, it has become the accepted practice to plead "false
innuendos", and a failure to do so is likely to attract judicial
disapproval [55]. Where this has not happened, the plaintiff
may be ordered to furnish particulars, in keeping with the well-settled
principle that the function of particulars is to apprise the
opposing party of the case which it will have to meet at trial [56].
Where a plaintiff has pleaded false innuendos - either voluntarily
or under compulsion - what are the consequences ? On this
issue, at least, the members of the High Court in Chakravarti
spoke with a single voice. Brennan C.J. and McHugh J.
said that [57]:
"If the meaning
pleaded goes to the jury and is not found by the jury, the plaintiff
fails. If there be no unfair disadvantage to the defendant
by allowing another defamatory meaning to be relied on and to
go to and be considered by the jury - as where the plaintiff
seeks to rely on a different nuance of meaning or, oftentimes,
merely a less serious defamation - the different defamatory
meaning may be found by the jury."
Gaudron and Gummow JJ. held that [58]:
"As a general
rule, there will be no disadvantage in allowing a plaintiff
to rely on meanings which are comprehended in, or are less injurious
than the meaning pleaded in his or her statement of claim. So,
too, there will generally be no disadvantage in permitting reliance
on a meaning which is simply a variant of the meaning pleaded.
On the other hand, there may be disadvantage if a plaintiff
is allowed to rely on a substantially different meaning or,
even, a meaning which focuses on some different factual basis.
Particularly is that so if the defendant has pleaded justification
or, as in this case, justification of an alternative meaning.
However, the question whether disadvantage will or may
result is one to be answered having regard to all the circumstances
of the case, including the material which is said to be defamatory
and the issues in the trial, and not simply by reference to
the pleadings."
The fifth member of the Court, Kirby J., concluded that [59]:
"In an attempt
to reconcile the desirable encouragement of particularisation
of claims, the avoidance of ‘trial by ambush’ and the consideration
of the entirety of the publication in question, courts will
uphold the discretion of the trial judge, including a discretion
to confine parties to the imputations pleaded where that is
required by considerations of fairness. However, a more
serious allegation will generally be taken to include a less
serious one unless the latter is of a substantially different
kind."
In a system of jurisprudence where a plaintiff is not required,
before trial, to identify the precise case which it intends
to advance at trial - and where the tribunal of fact is at liberty
to find in the plaintiff’s favour on any defamatory meaning
discernable from the words complained of, regardless of the
way that the case has been pleaded and particularised - there
is some logical attraction to the proposition that a defendant
should be permitted to advance positive grounds of defence in
respect of meanings which might otherwise support a judgment
for the plaintiff, even though the plaintiff has not expressly
relied on such meanings. If the defendant faces a risk
that the court may adopt a meaning different from that advanced
by the plaintiff, and find in the plaintiff’s favour in respect
of such a meaning, the defendant should have the opportunity
to justify, or to advance a defence of fair comment or (perhaps)
qualified privilege, in respect of any meaning which the words
complained of are reasonably capable of bearing.
But in a system of jurisprudence which requires the plaintiff
to state the case which will be advanced at trial, and which
confines the plaintiff to that case unless a departure from
it will occasion no prejudice to the defendant, there is no
obvious attraction to the notion that the defendant should be
permitted to raise positive defences in respect of a case which
the plaintiff has not sought to advance, and is precluded from
adopting at trial. As McHugh J remarked in the course of argument
in Chakravati [60], "[I]f the defendant’s plea of justification does
not meet the plaintiff’s case, what is it doing ? It is just
clouding up the record." If at trial the plaintiff seeks to
embrace a different meaning from that advanced in its statement
of claim, and the meaning is one which (had it been pleaded)
might have attracted a defence of justification, fair comment
or qualified protection, it is difficult to imagine a clearer
case for the exercise of the judicial discretion to confine
the plaintiff to the pleaded case.
This is not to deny that it is entirely proper for a defendant
to plead that the words complained of bear a different meaning
from that alleged by the plaintiff, as particulars of the defendant’s
denial of the false innuendos advanced by the plaintiff. In
jurisdictions where a bare traverse is permissible, this practice
is acceptable, though it may not be mandatory [61]; in Queensland,
at least, a denial or non-admission of an allegation of fact
is required to be "accompanied by a direct explanation for the
party’s belief that the allegation is untrue or can not be admitted" [62].
But this is no warrant for the defendant to go further,
and to plead justification of, or some other positive defence
in relation to, the alternative meaning for which the defendant
contends.
Chakravarti and its Aftermath
Of the five Justices constituting the High Court in Chakravarti [63],
only one - Kirby J. - made no observations relevant to the question
whether a Polly Peck defence is available under Australian common
law. Gaudron and Gummow JJ. discussed such defences, in
terms indicating an assumption - rather than a considered conclusion
- that such defences are available in Australia. Most
pertinently, their Honours observed [64]:
"... it has
been said that, if a defendant seeks to justify a meaning which
is different from that asserted by the plaintiff, it should
plead that alternative meaning because '[l]ibel law ought not
to be an exception to the modern rules of pleading which are
directed to precisely defining the issues between the parties,
providing the benchmarks against which the relevance of evidence
is to be assessed and deciding those issues on their merits'."
However, Brennan C.J. and McHugh J., with reference to the
judgment of O’Connor L.J. in Polly Peck, made the following
unequivocal pronouncement [66]:
"With great
respect to his Lordship, such an approach is contrary to the
basic rules of common law pleadings and in many contexts will
raise issues which can only embarrass the fair trial of the
action. 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 would 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. 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."
It is perhaps worth noting that these remarks were amongst
the very last judicial pronouncements made by Sir Gerard Brennan,
on the eve of His Honour’s retirement [67]. But the reaction to these
remarks has been remarkably subdued. The issue has since received
consideration by judges at first instance in two Australian
jurisdictions, with differing results.
In the Supreme Court of Victoria, Hedigan J has adopted the
position that [68]:
"There is
no doubt that the Polly Peck plea has become firmly entrenched
in virtually all jurisdictions in Australia and has been recognised
and acted on as part of the common law. ... For a judge sitting
at first instance, the judgments of the members of the High
Court in Chakravarti generate uncertainty, not guidance nor
binding authority on this aspect. The Victorian cases
... all proceed on the basis that the Polly Peck defence may
be pleaded and raised. Until the Court of Appeal, or the
majority of the High Court, declare that it is not the law,
I regard myself bound to treat it as the law of Victoria."
On a subsequent occasion, his Honour said [69]:
"If the views
of Brennan C.J. and McHugh J. were applied to this case, the
position would be that the defendant would not be permitted
to plead a meaning different from that contended for by the
plaintiff. The defendant would be in the position of either
simply denying the plaintiff’s meanings or alternatively justifying
them if they were established. The views as expressed
by Brennan C.J. and McHugh J. did not command any articulated
support by the other members of the Court who sat in Chakravarti.
No views have been expressed in other cases by the balance
of the members of the High Court of Australia. Although
the Full Court in National Mutual [70], having regard to the circumstances
in which the appeal came to it, stopped short of approving the
application of the Polly Peck principles in Victoria, they did
not disapprove them. It can hardly be denied that in Victoria
and all States in Australia the Polly Peck form of pleading
has been permitted over the last decade."
In the Supreme Court of the Australian Capital Territory,
however, Gallop J - whilst accepting that there is "some force
in the defendant's contention that Polly Peck has not been fully
argued and considered in the Chakravarti case" [71] - considered
that "it would be courageous for any trial judge to ignore the
dicta" [72] of Brennan CJ and McHugh J. In the same Court, Crispin
J has had occasion to observe [73]:
"[W]hilst
I acknowledge that the remarks of Brennan C.J. and McHugh J.
in Chakravarti ... were obiter I must say, with great respect,
that I share the misgivings which their Honours expressed. Fortunately,
having regard to the view which I take of the evidence in this
case, it is unnecessary to finally determine whether Polly Peck
... should now be followed."
Elsewhere, the Queensland Court of Appeal has declined an
opportunity to consider the relevant impact of the decision
in Chakravarti [74]. In Western Australia - the only Australian jurisdiction
where Polly Peck has received the express endorsement of an
intermediate appellate court [75] - Steytler J has been content to
accept the invitation of counsel "to assume that the position
in this State remains as enunciated by the Full Court in Gumina [76]
notwithstanding the recent criticism of the approach adopted
in that case (and others applying the so-called ‘Polly Peck’
principle) by Brennan CJ and McHugh J in Chakravarti ..." [77]. And
in South Australia, Lann DCJ has found it "not necessary ...
to go into the question of whether a ‘Polly Peck’ type of defence
has survived the decision of the High Court in Chakravarti" [78]. Finally,
Drummond J, sitting as a member of the Full Federal Court, has
provided these observations [79]:
"The appellant
could also, if it wished, have pleaded that the text conveyed
only the narrow imputation it relied on at trial and then sought
to justify it [80]. In Chakravarti, Brennan CJ and McHugh J ... held
that such a course is not open to a defendant. But Gaudron and
Gummow JJ ... accepted it as a permissible one. The other member
of the Court, Kirby J, did not consider the point. In this state
of authority, the appellant could, if it wished, have raised
by way of defence and persuaded the trial judge to entertain
a plea of ‘Polly Peck’ justification ... . It did not attempt
to do that."
The Future
It is submitted that four fundamental principles should guide
future consideration of whether or not a Polly Peck defence
should be permitted as part of the common law of Australia:
- It is for the plaintiff
in a defamation action, as in any other action, to set the parameters
of the plaintiff’s claim. If the plaintiff complains of
injury caused by the publication of matter conveying a particular
imputation, the plaintiff cannot be compelled to litigate a
different imputation arguably arising from the same matter.
That the words complained of are capable of bearing a
different imputation is relevant only to the question whether
those words convey the imputation alleged by the plaintiff.
If the plaintiff fails to sustain the case pleaded, because
the tribunal of fact is not satisfied that the imputation alleged
by the plaintiff is made out, the plaintiff’s case fails. There
is, then, no scope for a defendant to justify, or advance any
other positive defence in relation to, any different imputation.
- Nonetheless, a defendant
has a clear right to justify, or advance other positive grounds
of defence in relation to, any imputation upon which the plaintiff
can succeed at trial - whether or not it be an imputation in
the precise terms pleaded by the plaintiff. If a plaintiff
may succeed at trial by reference to an imputation somewhat
different from that pleaded, whether it be a less serious imputation
or a different shade of meaning, the defendant is entitled to
plead justification, fair comment or qualified privilege in
respect of such an imputation.
- There can be no prejudice to
a defendant who is precluded from advancing a Polly Peck defence,
if the plaintiff is compelled to plead the imputations which
will be relied upon at trial, and is confined at trial to the
case pleaded, subject only to the possibility that a less serious
imputation of the same character, or a different shade of meaning,
may be permitted to be advanced at trial. If, at trial,
an entirely different imputation is advanced, to which the defendant
might have had an arguable defence of justification, fair comment
or qualified privilege, the risk of prejudice to the defendant
by being denied the opportunity to meet such an imputation ought
generally to inform the court’s discretion against allowing
such an imputation to be advanced.
- Just as the plaintiff should
plead the imputations relied on to prevent the defendant’s being
surprised at trial, so to the defendant may be required to plead
any alternative imputations upon which it relies. But
this may only be done for permissible purposes. One permissible
purpose is to identify the grounds for the defendant’s denial
that the imputations advanced by the plaintiff are conveyed
by the words complained of: this is not to advance a positive
ground of defence, but merely to furnish particulars of the
grounds for denying a component of the plaintiff’s case. The
only circumstance in which it ought be permissible for a defendant
to advance positive grounds of defence in respect of alternative
imputations is if those alternative imputations are ones upon
which the plaintiff can succeed in trial, having regard to the
way that the plaintiff’s case is pleaded. Thus, a defendant
may contend for a less serious imputation of the same character,
or a different shade of meaning, as the basis for a positive
defence of justification, fair comment or (perhaps) qualified
privilege; but may not advance a positive defence in respect
of an entirely different imputation.
A rigorous application of these principles will, it is submitted,
bring logical coherence to this branch of the law. They
are consistent with the "basic rules of common law pleadings"
mentioned by Brennan CJ and McHugh J in Chakravarti [81]. They
are consistent, too, with the object of enhancing fairness and
efficiency in the conduct of litigation, as each party is required
to formulate its case with a degree of precision, and neither
party may depart from its pleaded case if this may occasion
prejudice to the opposing party. Both parties are spared
the expense, and the community is spared the drain on judicial
resources, which may arise where a defendant seeks to justify
an imputation which the plaintiff does not rely on. The
defendant is not prejudiced, since the defendant remains entitled
to advance positive defences in respect of all imputations asserted
by the plaintiff, and any other imputations in respect of which
the plaintiff might otherwise succeed at trial, and the plaintiff
is not permitted to advance alternative imputations to which
the defendant may have been able to advance a positive ground
of defence. Above all, the adoption of these principles
will avoid the rational incongruity which arises where a defendant
is permitted to defend a case which the plaintiff has not advanced.
The adoption of these principles will impose restrictions
on both parties. The plaintiff will be compelled to plead
false innuendos with great care, knowing that, at most, only
minor departures from the pleaded case are likely to be permitted.
Yet this requirement is no more onerous than that which
falls on litigants in any other branch of the law. For
its part, the defendant will be prevented from advancing positive
grounds of defence in respect of imputations other than those
pleaded by the plaintiff, or minor variances thereto. But
there can be no legitimate objection to this, if the defendant
faces no risk of an adverse result at trial based on imputations
- materially different from those pleaded by the plaintiff -
to which the defendant may have had valid grounds of defence
if they had been pleaded.
The real concern is that the Polly Peck defence, as it has
evolved in England and Australia, can be an instrument of oppression.
As Miles C.J. observed in Woodger [82], such defences are "open
to abuse because they are capable of converting a modest and
narrow claim by a plaintiff into a wide-ranging expansive and
expensive inquiry, the limits of which are set by the defendant’s
capacity to pay for it". For over a century, it has been
settled that a defendant in defamation proceedings may not adduce
evidence of the plaintiff’s bad character, or specific acts
of misconduct (other than those which are admissible in support
of a defence of justification) to mitigate damages [83]. For
defendants with deep pockets, the Polly Peck defence encourages
attempts to adduce evidence harmful to the plaintiff’s reputation,
under colour of justifying a supposed defamatory meaning which
the plaintiff has not sued upon [84]. In Kennett v. Farmer [85],
Nathan J. spoke of the propensity of a Polly Peck defence to
allow the "highjacking [of] the plaintiff’s claim" by the defendant.
This possibility, which carries with it the risk of a
substantially longer and more expensive trial, and the possibility
of juries becoming confused and delivering perverse verdicts,
operates as a substantial discouragement to potential plaintiffs
with meritorious claims, and as a substantial disincentive to
reasonable negotiated settlements.
There can be no legitimate basis for defendants to complain
if Polly Peck defences are restricted to those cases where the
alternative imputations asserted by the defendant are within
the range of imputations on which the plaintiff might otherwise
succeed at trial. A defendant can have no legitimate reason
for wishing to litigate the truth of an imputation in respect
of which the defendant has not been sued, and upon which judgment
cannot be given for the plaintiff. If there is any objection
from defendants to the recognition of such a limitation, it
can only be because defendants are deprived of the opportunity
to adopt a tactical manoeuvre which has no bearing on the real
issues to be litigated, and is intended only as an obstacle
to the inexpensive, expeditious and just determination of plaintiffs’
claims.
Yet, if there were any scope for defendants to be prejudiced
by the recognition of such a limitation, there is a simple prophylactic
which defendants may adopt in cases where a Polly Peck defence
has hitherto been available. Where the plaintiff sues
in respect of a specific imputation or imputations, and the
defendant’s advisers are of the opinion that the words complained
of convey an entirely different meaning, there is nothing to
prevent the defendant’s advisers writing to those who represent
the plaintiff, seeking confirmation that the plaintiff will
not attempt to rely on any such alternative meaning at trial.
If the plaintiff explicitly abandons reliance on such
an alternative meaning, the defendant’s position is fully protected
- the defendant need not attempt to justify, or raise any other
positive ground of defence in relation to, possible imputations
which the plaintiff has unequivocally renounced. If, on
the other hand, the plaintiff is unwilling to abjure reliance
on a possible alternative meaning, the defendant may well plead
a Polly Peck defence, in the confident knowledge that it is
unlikely to be struck out whilst the plaintiff reserves the
option of advancing that alternative imputation at trial. And
by the same token, where a defendant has pleaded a Polly Peck
defence, there is no reason why a plaintiff may not give written
notice explicitly disclaiming reliance on the alternative meanings
advanced by the defendant, inviting the defendant to accordingly
withdraw that aspect of the defence, and foreshadowing the appropriate
application if the defendant persists with a plea for which
there can be no legal foundation.
It is perhaps excessively optimistic to expect that the so-called
"Polly Peck defence" will disappear from Australian jurisprudence,
so as to close off at least one of the dead-end paths presented
to litigants in their attempts to negotiate the labyrinth of
defamation law. Yet the observations of Brennan CJ and McHugh
J in Chakravarti, if acted upon, can certainly function as a
sign-post, directing plaintiffs and defendants alike to a more
direct route out of this byzantine maze.
|
|
Footnotes
- Chakravarti v. Adelaide Newspapers Limited [1998]
HCA 37
- Polly Peck PLC v. Trelford [1986] QB 1000
- For example, Rylands v. Fletcher (1868) LR 3
HL 330, Browne v. Dunn (1893) 6 TR (HL) 67, Mareva
[Mareva Compania Naviera SA v. International Bulk
Carriers Ltd] [1975] 2 Lloyd’s Rep 509, and Anton
Piller [Anton Piller KG v. Manufacturing Processes
Ltd] [1976] Ch 55
- Polly Peck PLC v. Trelford [1986] QB 1000
- As discussed below, a "Polly Peck defence"
may also be advanced alleging fair comment or, perhaps,
qualified privilege.
- The law varies amongst Australian jurisdictions as to
whether publication in the public interest, or for the public
benefit, is an element of the defence commonly known as
"justification". In Victoria, Western Australia,
South Australia and the Northern Territory, truth of itself
is a complete defence. In Queensland, Tasmania and
the Australian Capital Territory, truth alone is not a defence
unless the publication was also made for the public benefit.
In New South Wales, the common law defence of justification
has been replaced with a defence of "substantial truth"
under s.15 of the Defamation Act 1974, provided that the
imputation either relates to a matter of public interest
or is published under qualified privilege. S.16 creates
a cognate defence of "contextual truth".
- [1998] HCA 37, paras [7] to [13]
- Chakravarti v. Adelaide Newspapers Limited (1996) 65
SASR 527
- [1998] HCA 37, para [1] (Brennan CJ and McHugh J); paras
[46] and [70] (Gaudron and Gummow JJ); para [158] (Kirby
J)
- ibid., para [1] (Brennan CJ and McHugh J); para [101]
(Gaudron and Gummow JJ); para [185] (Kirby J)
- High Court of Australia transcript A41/1996, 1 September,
2 September and 3 September 1997
- [1998] HCA 37, paras [7] to [13]
- fnn 32 to 36, below
- fnn 30, 31 and 41, below
- In defamation law, a "natural and ordinary"
meaning is not necessarily a literal meaning; it may be
conveyed either literally by the words of the publication,
or by "any implication or inference which a reasonable
reader guided not by any special but only by general knowledge
... would draw from the words": Jones v. Skelton
[1963] 1 WLR 1362, 1371.
- A common example of a "true innuendo" is the
publication of a photograph, showing a man and a woman,
with a caption describing them as affianced. Neither
the photograph nor the caption can be regarded as defamatory
in its natural and ordinary meaning. But if either
of the persons depicted in the photograph is already lawfully
married, the publication may convey to people who are aware
of this fact the implication that one or both of them is
an intending bigamist. Moreover, to a reader who is
acquainted with the lawful spouse of one of the persons
depicted in the photograph, the publication may convey a
meaning which is defamatory of that spouse - even though
the spouse is not depicted or mentioned in the publication
- that he or she has falsely claimed to be wedded to a person
depicted in the photograph. See Cassidy v. Daily
Mirror Newspapers Ltd [1929] 2 KB 331.
- In those jurisdictions where the cause of action is
the publication of defamatory matter rather than the publication
of a defamatory imputation, a defence of qualified privilege
(or its statutory equivalent) may be available regardless
of the imputations pleaded by the plaintiff - or, for that
matter, by the defendant - as the relevant privilege attaches
to the publication of the matter rather than the publication
of particular meanings conveyed by the matter: Gration
v. Queensland Newspapers Pty Ltd [1989] 1 Qd R 381.
Thus, in such jurisdictions, there may be no need to advance
a Polly Peck type defence. It is beyond the scope of this
paper to consider whether a Polly Peck defence of
qualified privilege may be available in jurisdictions like
New South Wales where the cause of action is constituted
by the publication of defamatory imputations rather than
defamatory matter (Defamation Act 1974, s.9(2)).
Nor is it necessary, for present purposes, to consider whether
in Queensland (and possibly other Australian jurisdictions,
apart from New South Wales) it is the publication of defamatory
imputations, rather than the publication of defamatory matter,
which gives rise to a cause of action: see Pervan v.
North Queensland Newspaper Co Ltd (1993) 178 CLR 309,
333 (per McHugh J); Bellino v. Australian Broadcasting
Corporation (1996) 184 CLR 183, 230 (per Dawson, McHugh
and Gummow JJ), 237 (per Gaudron J).
- The facts of this (entirely hypothetical) illustration
are based loosely on those of Liberace v. Daily Mirror
Newspapers, The Times, June 17, 18, 1959, where the
plaintiff - an American pianist and entertainer - was described
(inter alia) as "this deadly, winking, sniggering,
snuggling, chromium-plated, scent-impregnated, luminous,
quivering, giggling, fruit-flavoured, mincing, ice-covered
heap of mother-love". The plaintiff alleged that
these words conveyed (amongst other things) an imputation
of homosexuality. The jury agreed, and awarded substantial
damages. The defendant did not seek to justify the
truth of this imputation, and argued (unsuccessfully) that
the words complained of constituted fair comment on the
plaintiff’s performance as an entertainer. A detailed
(and highly entertaining) account of the case may be found
in H. Montgomery Hyde, Their Good Names - A Collection
of Libel and Slander Cases (London: Hamish Hamilton,
1970) Chapter 12.
- For the purposes of this hypothetical example, the facts
of Liberace v. Daily Mirror Newspapers have been
altered to make the plaintiff a married man, as in modern
times it may be doubted whether an imputation of homosexuality
is defamatory, unless the plaintiff is married (so as to
imply that his marriage is a sham), or the plaintiff professes
to be heterosexual (so as to imply that he is a liar).
- Slim v. Daily Telegraph Ltd [1968] 2 QB 157,
171, per Diplock LJ; see also Charleston v. News Group
Newspapers Ltd [1995] 2 AC 65, 71-2, per Lord Bridge
of Harwich.
- Capital and Counties Bank v. Henty (1882) 7 App
Cas 741, 771, per Lord Blackburn.
- (1868) LR 3 QB 396, 402
- (1864) 12 WR 878; 10 LT 816; 4 NR 285
- Templeton v. Jones [1984] 1 NZLR 448, 451
- [1988] VR 991, 996
- published in 1981; para.1108
- [1961] AC 1090, 1142
- [1968] 2 QB 157, 168
- [1972] 1 WLR 1036, 1040
- [1986] 1 WLR 147
- [1986] QB at 1032, per O’Connor LJ
- Gumina v. Williams (No.2) [1990] 3 WAR 351
- Nathan J. in Kennett v. Farmer [1988] VR 991;
Murphy J. in Kelly v. Special Broadcasting Service
[1990] VR 69; and Gobbo J. in Curran v. The Herald and
Weekly Times Butterworths Unreported Judgments BC 9300747
- Higgins J. in TWT Ltd v. Moore (1991) A Def Rep
51,030; and Miles C.J. in Woodger v. Federal Capital
Press of Australia Pty Ltd (1992) 107 ACTR 1
- Dowsett J. in Grundmann v. Georgeson (1996) Aust
Torts Rep ¶81-396 at 63,513. It may be more accurate to
say that his Honour assumed, without deciding, that such
a defence is available under Queensland law; the Polly
Peck defence had failed at first instance, and was only
relevant on appeal in respect of the costs of maintaining
that unsuccessful defence.
- Mildren J. in Hart v. Wrenn (1995) 5 NTLR 17
- Chakravarti v. Adelaide Newspapers Limited [1998]
HCA 37
- Another explanation sometimes advanced for the fact
that Polly Peck defences are not often pleaded in
New South Wales is the argument that, in a jurisdiction
where the cause of action is the publication of a defamatory
imputation rather than the publication of defamatory matter
(Defamation Act 1974, s.9(2)) - and where, consequently,
a plaintiff must plead the imputation or imputations sued
on, and is held to that pleading - no occasion arises to
advance a Polly Peck defence: Gillooly, The Law
of Defamation in Australia and New Zealand (Sydney:
Federation Press, 1998) pp114, 115. If this argument is
correct - and it has much to commend it - the same conclusion
arguably applies in Queensland, to the extent that under
Queensland law it is the publication of a defamatory imputation,
rather than the publication of defamatory matter, which
gives rise to a cause of action: see Pervan v. North
Queensland Newspaper Co Ltd (1993) 178 CLR 309, 333
(per McHugh J); Bellino v. Australian Broadcasting Corporation
(1996) 184 CLR 183, 230 (per Dawson, McHugh and Gummow JJ),
237 (per Gaudron J).
- (1992) 107 ACTR 1, 23
- A different view has, however, been taken by Mildren
J. in Hart v. Wrenn (1995) 5 NTLR 17, 25; also per
Crispin J., Steiner Wilson & Webster Pty Ltd trading
as Abbey Bridal v. Amalgamated Television Services Pty Limited
[1999] ACTSC 123, para.197
- See, for example, Viscount de L’Isle v. Times Newspapers
Ltd [1988] 1 WLR 49; Prager v. Times Newspapers Ltd
[1988] 1 WLR 77; Morell v. International Thomson Publishing
Ltd [1989] 3 All ER 733; Control Risks Ltd v. New
Library Ltd [1990] 1 WLR 183
- I have described this as a "so-called defence"
because, if successfully invoked, it does not relieve the
defendant of liability. Like the so-called defence of contributory
negligence in negligence actions, it goes only to the assessment
or quantification of damages.
- Clarkson v. Lawson (1829) 6 Bing 266 [130 ER
1283]; and see Plato Films Ltd v. Speidel [1961]
AC 1090, 1141-2, per Lord Denning. It is beyond the scope
of the present paper to consider whether the criticism of
Polly Peck in Chakravarti also calls into
question the so-called defence of "partial justification":
see Kelson v David Syme & Co Limited [1998] ACTSC
87, para 17, per Crispin J
- See, for example, Morrison v. Harmer (1837) 3
Bing (NC) 759 [132 ER 603]; Alexander v. North Eastern
Railway Co. (1865) 6 B&S 340 [122 ER 1221]; Southerland
v. Stopes [1925] AC 47, 78-79; Potts v. Moran
(1976) 16 SASR 284, 305-6. Again, it is beyond the scope
of the present paper to consider whether a "common
sting" defence of justification can survive the decision
in Chakravarti; but see, in particular, per Brennan
CJ and McHugh J, [1998] HCA 37 at [11].
- Chakravarti v. Adelaide Newspapers Limited [1998]
HCA 37
- (1784) 4 Dougl 74 [1998 ER 774]
- 4 Dougl, at 82 [99 ER at 779]
- 4 Dougl at 170 [99 ER 824]
- 4 Dougl at 172 [99 ER 825], citing 4 Bl Comm 349
- 23 G III c60, entitled "An Act to Remove Doubts
Respecting the Functions of Juries in Cases of Libel"
- Capital & Counties Bank v. Henty (1882) 7
App Cas 741, 762, per Lord Penzance
- National Mutual Life Association of Australasia Ltd.
v. GTV Corporation Pty Ltd, [1989] VR 747, 768
- Cassidy v. Daily Mirror Newspapers Ltd [1929]
2 KB 331; National Mutual Life Association of Australasia
Ltd. v. GTV Corporation Pty Ltd, [1989] VR 747; Charleston
v. News Group Newspapers Ltd [1995] 2 AC 65
- Defamation Act 1974, s.9(2); and see NRMA
Insurance Ltd v Amalgamated Television Services Pty
Ltd [1989] A Def R 40,741. The same result should follow
in Queensland, if it is the case that the publication of
a defamatory imputation, rather than the publication of
defamatory matter, gives rise to a cause of action: see
Pervan v. North Queensland Newspaper Co Ltd (1993)
178 CLR 309, 333 (per McHugh J); Bellino v. Australian
Broadcasting Corporation (1996) 184 CLR 183, 230 (per
Dawson, McHugh and Gummow JJ), 237 (per Gaudron J).
- See Lewis v. Daily Telegraph Ltd [1964] AC 234,
265, 279-80; Hadzel v. De Waldorf (1970) 16 FLR 174,
179; Australian Consolidated Press Ltd v. Rogers
[1971] 1 NSWLR 682, 684; DDSA Pharmaceuticals Ltd v.
Times Newspapers Ltd [1973] 1 QB 21, 26; National
Mutual Life Association of Australasia Ltd. v. GTV Corporation
Pty Ltd, [1989] VR 747, 768; Chakravarti v. Adelaide
Newspapers Ltd [1998] HCA 37, [15] (Brennan C.J.
and McHugh J.), [52] (Gaudron and Gummow JJ.), [139] (Kirby
J.)
- Australian Consolidated Press Ltd v. Rogers [1971]
1 NSWLR 682, 684
- Chakravarti v. Adelaide Newspapers Limited [1988]
HCA 37, [24]
- ibid., [60]
- ibid., [139]
- High Court of Australia transcript A41/1996, 2 September
1997
- In Chakravarti v. Adelaide Newspapers Limited
[1998] HCA 37, Gaudron and Gummow JJ. said at para.[56],
"the alternative meaning pleaded by the defendant may
make plain the ground upon which the defendant denies the
imputation pleaded by the plaintiff."
- Uniform Civil Procedure Rules 1999 (Queensland),
r.166(4)
- Brennan C.J., Gaudron, McHugh, Gummow and Kirby JJ
- Chakravarti v. Adelaide Newspapers Limited [1998]
HCA 37 [56]
- [1986] QB 1000, 1032
- Chakravarti v. Adelaide Newspapers Limited [1998]
HCA 37 [8]
- See High Court of Australia transcript C00/1998, 20
May 1998
- Carrey v. ACP Publishing Pty Ltd [1998] VSC 78,
para.28
- Hore-Lacy v. David Syme & Co. Ltd [1998]
VSC 96, para.18
- National Mutual Life Association of Australasia v.
General Television Corporation Pty Ltd [1989] VR 747
- Kelly v. Nationwide News Pty Ltd [1998] SCACT
117, para 21. In fact, it appears from reference to the
transcripts in Chakravarti that the issue was thoroughly
ventilated in argument: High Court of Australia transcript
A41/1996, 1 September, 2 September and 3 September
1997.
- Kelly v. Nationwide News Pty Ltd [1998] SCACT
117, para 33
- Steiner Wilson & Webster Pty Limited trading
as Abbey Bridal v. Amalgamated Television Services Pty Limited
[1999] ACTSC 123, para.199
- Dorfler v. Dwyer [1998] QCA 221
- Gumina v Williams (No 2) (1990) 3 WAR 351
- ibid.
- Brown v. Marron [1998] WASC 364
- Clarke v. The Adelaide Review, [1998] SADC 3938,
para 15
- Random House Australia Pty Ltd v Abbott [1999]
FCA 1538, para 178
- Woodger v Federal Capital Press of Australia Pty
Ltd (1992) 107 ACTR 1
- Chakravarti v. Adelaide Newspapers Limited [1998]
HCA 37 [8]
- (1992) 107 ACTR 1, 21
- Scott v. Sampson (1882) 8 QBD 491, 504; Plato
Films Ltd v. Spiedel [1961] AC 1090; Chappell
v. Mirror Newspapers Ltd (1984) Aust Torts Rep ¶80-691
- Even if a Polly Peck defence is unsuccessful,
"... the evidence led by the defendant ... (which may
relate to specific allegations of which the plaintiff did
not complain) may have ... [a] significant effect in depressing
the level of damages": Gillooly, The Law of Defamation
in Australia and New Zealand (Sydney: Federation Press,
1998) p 115.
- [1988] VR 991, 996
|
