Case: Polly Peck (Holdings) Plc v Trelford (1986) 1 QB 1000
Outcome: referred to
turn now to the defences raised in paragraphs 27 29 of the Defence to Third Further Amended Statement of Claim which rely upon the decision of the Court of Appeal in England in Polly Peck (Holdings) Plc v Trelford (1986) 1 QB 1000 ('Polly Peck'). Polly Peck defences are not available in New South Wales, Queensland and Tasmania. They are available in respect of publications in Victoria, South Australia, Western Australia and the Australian Capital Territory. In his leading judgment in Polly Peck O'Connor LJ stated a series of relevant principles at 1020 et seq as follows: 'The first principle is that where a plaintiff chooses to complain of part of a whole publication, the jury is entitled to see and read the whole publication ... ... The second principle is that where a publication contains two distinct libels, the plaintiff can complain of one and the defendant cannot justify that libel by proving the truth of the other. The difficulty with this apparently self-evident proposition is in deciding whether the two libels are indeed distinct in the sense that the imputation defamatory of the plaintiff's character in the one is different from the other. The third principle is that it is for the jury to decide what the natural and ordinary meaning of the words complained of is. ... The fourth principle is that the trial of the action should concern itself with the essential issues and the evidence relevant thereto and that public policy and the interest of the parties require that the trial should be kept strictly to the issues necessary for a fair determination of the dispute between the parties. In this case both the newspaper articles in which the passages of which complaint is made appear consist of a mixture of fact and comment, which is only to be expected. There are two different articles, so that strictly there are two separate causes of action, but when I look at the statement of claim it is quite obvious that the imputation of which Mr Nadir complains is the same, for in paragraphs 8 and 10 of the statement of claim, ... it will be seen that the sting of the libel is that he deceived or negligently mislead shareholders, investors and members of the general public as to the operation of his business enterprises. If the action succeeds, the jury will be asked to assess a single sum by way of damages. It is the "sting" of the libel to which the defences of justification and fair comment are directed. ... ... ... In cases where the plaintiff relies on the natural and ordinary meaning of words and pleads a false innuendo, the defendant is entitled to justify the words in any meaning that it is open to the jury to find that the words bear, and I do not see why the defendant should not plead that in their context the words are true. ... I do not think that a plaintiff is permitted to use a blue pencil upon words published of him so as to change their meaning and then prevent the defendant from justifying the words in their unexpurgated form. ... ... I am now in a position to state my conclusions. 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 ... 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. ...' In the present case the respondents have not endeavoured to look at the whole of the 13 September facsimile, the whole of the ATO letter and/or the whole of the 15 September email and aver that in their context the words used bear meanings different from those alleged by the applicants as constituting defamatory imputations. It seems to me that on the facts of this case there is no scope for the operation of the Polly Peck defence in those jurisdictions where it is available. I should add that I am by no means satisfied that paragraphs 27 29 inclusive of the Defence to Third Further Amended Statement of Claim in fact raise Polly Peck defences. Certainly the facts do not fall within the Polly Peck principles. It is convenient to summarise the findings which I have made thus far: (a) The first applicant's claims for relief under the Trade Practices Act and/or the Fair Trading Act should be dismissed with costs (see [191] above). In the applicants' outline of their final submissions of 19 April 2007 it was submitted that an injunction should go restraining the respondents, their servants and agents from publishing any matter of and concerning any of the applicants that contained any of the representations pleaded by the first applicant in support of its case for relief under the Trade Practices Act and/or the Fair Trading Act . Were it appropriate to grant relief under one or other of those Acts, and in my opinion it would not be appropriate, I would not consider that the circumstances warrant injunctive relief such as has been proposed. (b) The first applicant is not entitled to damages for defamation (see [199] above). (c) By publishing the 13 September facsimile the first and third respondents conveyed a defamatory imputation of and concerning the second applicant that she used the first applicant to launder money to China for her own personal gain (see [206]-[207] above). (d) By publishing the 13 September facsimile the first and third respondents conveyed a defamatory imputation of and concerning the second applicant that she was a person convicted of two offences of providing false customs invoices who defrauded the Australian Taxation Office (see [212]-[213] above). (e) By publishing the 13 September facsimile the first and third respondents conveyed a defamatory imputation of and concerning the third applicant that he was a person convicted of two offences of providing false customs invoices who defrauded the Australian Taxation Office (see [243]-[244] above). (f) The second and third applicants are entitled to damages in respect of the publication of the 13 September facsimile in New South Wales, Queensland, Victoria, South Australia, Western Australia, Tasmania and the Australian Capital Territory (see [19]-[22] above). (g) By publishing the ATO letter, at the request of the third respondent, the second respondent conveyed a defamatory imputation of and concerning the second applicant in the same terms as the imputation conveyed by the 13 September facsimile and referred to at [206]-[207] above (see [217]-[218] above). By publishing the ATO letter, at the request of the third respondent, the second respondent conveyed defamatory imputations of and concerning the second and third applicants in the same terms as the imputations conveyed by the 13 September facsimile and referred to at [212]-[213] and [243]-[244] above (see [223]-[224] and [249]-[250] above). However, the publication of the ATO letter was protected by qualified privilege. In the circumstances neither the second applicant nor the third applicant has any entitlement to damages against the second respondent or the third respondent in respect of that publication (see [270] above). (h) By publishing the 15 September email the third respondent conveyed defamatory imputations of and concerning the second applicant that: (i) she had so conducted the affairs of the first applicant as to warrant official investigation by the Australian Taxation Office into whether she had engaged in criminal conduct including taxation fraud, money laundering and predatory pricing (see [226]-[227] above); (ii) she was reasonably suspected of being implicated in a major taxation fraud (see [231]-[232] above); and (iii) she defrauded everybody that had ever worked for her (see [236]-[237] above). In making these findings referable to the 15 September email I have assumed that the defamation law in the Special Administrative Region of Hong Kong and in the remainder of the People's Republic of China is the same as it is New South Wales. However, as I said at [41]: '... the general presumption that, in the absence of evidence to the contrary, foreign law is the same as Australian law is not inflexible. Where the law of the forum is governed by a statute and the law within Australia is itself lacking in uniformity, I doubt whether it could be presumed that the defamation law in China, including the Special Administrative Region of Hong Kong, is the same as it is in New South Wales.' In the absence of evidence as to the relevant defamation law in the Special Administrative Region of Hong Kong and in the remainder of the People's Republic of China or at least that part where Mr Zhou Jie was located at the time when he received the 15 September email, I do not consider that any award of damages should be made referable to the transmission of the 15 September email to Curie Chen and Zhou Jie. The relevant defamation law (if any) has not been proven. I would also note the findings made by me at [188]-[190] above in relation to the circumstances in which the 15 September email was transmitted to Mr Curie Chen and Mr Zhou Jie. As indicated above the second and third applicants claim damages including aggravated and exemplary damages. Particulars in respect of the claims for aggravated and exemplary damages are set out in paragraphs (a)-(l) on the second and third pages of the Third Further Amended Application filed 27 October 2006.