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It is plain from these remarks (which I adopt as a correct statement of the law) that where the pleadings, as in the present case, disclose that the plaintiff does not acknowledge the words complained of are comments or opinions, but the defendants, in their pleadings, raise the issue of comment and of fairness of the comment, the onus is on the defendants to prove fair comment. The normal principle that he who asserts, must prove, applies. In such event (assuming the words complained of are capable of being a comment and further assuming that condition (b) mentioned above is not applicable as is the situation here), it is for the Judge to determine, as a matter of law, (1) whether there is any evidence of condition (a), that is, any evidence entitling the jury to find that the statements upon which the comments are based are true; and (2) whether there is any evidence of condition (c), viz., the requirement of honesty. If he finds there is some evidence to support the finding that those conditions are met, he must place the defence of fair comment before the jury for their consideration (assuming that he has previously ruled that the element of public interest was proved). If, on the other hand, the trial Judge finds as a matter of law, that there is no evidence to support the presence of either of these two conditions, he should not put the defence of fair comment to the jury.
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