Ange v Fairfax Media Publications Pty Ltd
[2011] NSWSC 204
•28 March 2011
Supreme Court
New South Wales
Medium Neutral Citation: Con Ange v Fairfax Media Publications Pty Ltd & Ors [2011] NSWSC 204 Hearing dates: 07.03.11, 08.03.11, 09.03.11 Decision date: 28 March 2011 Jurisdiction: Equity Division Before: Nicholas J Decision: Par 68
Catchwords: DEFAMATION - defences - contextual truth - application to strike out contextual imputations under UCPR Pt 14, r 14.28(1) - whether contextual imputations are "other imputations" carried "in addition to" plaintiff's pleaded imputations - principles considered - s 16 Defamation Act 1974 - s 26 Defamation Act 2005 DEFAMATION - defences - substantial truth - particulars - strike out application under UCPR Pt 14, r 14.28(1) - whether particulars fall so far short of being capable of supporting truth of imputations - materiality of words of imputations - wide difference between facts asserted in particulars and imputations of specific conduct - principles considered - s 25 Defamation Act 2005 Legislation Cited: Defamation Act 2005
Defamation Act 1974, repealed
Uniform Civil Procedure Rules 2005Cases Cited: Allen v John Fairfax & Sons [NSWCA, 2 December 1988, unreported]
Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645
Chakravati v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484
John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205
Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749
Rofe v Smith's Newspapers Ltd (1924) 25 SR(NSW) 4Category: Interlocutory applications Parties: Con Ange - plaintiff
Fairfax Media Publications Pty Ltd - first defendant
Fairfax Digital Australia & New Zealand Pty Ltd - second defendant
Les Kennedy - third defendantRepresentation: Counsel:
K P Smark SC - plaintiff
A T S Dawson - defendants
Solicitors:
Kalantzis Lawyers - plaintiff
Johnson Winter & Slattery - defendants
File Number(s): 10/275568
Judgment
The plaintiff claims damages against the defendants for the publication of defamatory matter in the newspaper "The Sydney Morning Herald", and on a number of websites. The claims are defended on grounds including truth under s 25 Defamation Act 2005 (the Act) and common law [sic], and contextual truth under s 26 of the Act.
The plaintiff sought orders striking out from the defence certain particulars pleaded in support of the defence of truth, and the contextual imputations as pleaded.
The proceedings arise out of the separate publication on 6 June 2010 of articles in the newspaper and on the websites under the heading "Raid closes porn shop". The contents of these publications are substantially the same. It is convenient to refer to the newspaper article.
This article appears on a page headed "LAW & ORDER". Below the headline are the words "DVDs and drugs seized", a photograph of the plaintiff, and a photograph of the faade and signage of the shop known as the "Adult Shop" with the caption "Frisky business ... Con Ange's Adult Shop was raided by Kings Cross police. Mr Ange is also still trying to recover money from art dealer Ron Coles".
The article proceeds as follows:
"The woes of Sydney porn shop king Con Ange, the largest distributor of adult pornography on the east coast, continue after Kings Cross police raided the area's last two adult shops.
Police targeted Mr Ange's Pleasure Chest in Darlinghurst Road, and its sister operation, the Adult Shop, directly opposite.
During the raids 10 days ago more than 1000 DVDs and porn material were seized, including 700 bottles of amyl nitrate. The Pleasure Chest is now boarded up. The Adult Shop continues to trade, with reduced stock.
In March Mr Ange and his estranged wife, Mimi, who are locked in a battle over his assets, were ordered by the Victorian Supreme Court to pay an auction company an estimated $1 million in compensation, for loss of commission, after withdrawing 22 paintings on the day they were due to be auctioned in May 2008.
Bonhams and Goodman were to sell works by Norman Lindsay, Arthur Streeton and others valued at more than $2.4 million, on behalf of Mrs Ange, but her husband said they were not hers to sell and secured an injunction to have the paintings withdrawn.
The court heard how Mr Ange invested cash from his porn shop empire into paintings, including many works that had come from the rogue Sydney fine art investment dealer Ron Coles."
The article continued with an account of attempts by the plaintiff and others to recover monies invested with Mr Coles in paintings.
In his amended statement of claim (par 5) the plaintiff alleges that, in its natural and ordinary meaning, the article carried the following imputations:
"(a) The plaintiff owns adult shops that were raided by police and closed down 10 days ago;
(b) The plaintiff owns adult shops in which 700 bottles of Amyl Nitrate were found by police;
(c) The plaintiff, the owner of the adult shops Pleasure Chest and Adult Shop, is suspected by police of having engaged in illegal conduct in connection with those shops;
(d) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop in which police found drugs that they seized;
(e) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop from which police seized more than 1000 DVDs and pornographic material;
(f) The plaintiff is a pornographer, in that he owns the adult shops Pleasure Chest and Adult Shop which sell pornographic material;
(g) The plaintiff is a criminal, in that he supplied illegal DVDs through his adult shops Pleasure Chest and Adult Shop;
(h) The plaintiff is a drug dealer."
In par 8 of the amended statement of claim the plaintiff alleges the same imputations were carried by the website publications.
In pars 6 and 9 of the amended statement of claim the plaintiff alleges that the publications carried the following imputations based on specified extrinsic facts:
"(a) The plaintiff deals drugs through his adult shops Pleasure Chest and Adult Shop;
(b) The plaintiff is a drug dealer;
(c) The plaintiff is a criminal, in that he supplied the pharmacy only drug Amyl Nitrate through his adult shops, Pleasure Chest and Adult Shop."
In pars 12 and 13 of the defence filed 7 March 2011, the defendants pleaded that the imputations in pars 5(d), 5(e), 5(f) and 5(g) were substantially true. The same defence was pleaded in respect of the corresponding imputations in par 8 of the amended statement of claim. The defence included particulars of facts and matters relied upon in support of these defences, referred to later in these reasons.
Paragraph 14 of the defence was as follows:
"14 In further and alternative answer to paragraphs 4 and 5 of the statement of claim the first and third defendants say as follows:
(a) the matter complained of in paragraph 4 thereof carried, in addition to the plaintiff's first imputations, the following imputations:
(i) (as amended) the plaintiff as a pornographer has engaged in criminal conduct;
(ii) the plaintiff is a pornographer;
(iii) the plaintiff owns porn shops at which illegal goods were offered for sale;
(iv) the plaintiff owns porn shops at which illegal goods and pornographic material were seized by police during police raids on those shops;
(v) the plaintiff deserved to have his porn shops shut down because those shops offered illegal goods for sale;
(the first contextual imputations)
(b) each of the first contextual imputations was substantially true.
(c) by reason of the substantial truth of the first contextual imputations and so many of the plaintiff's imputations as are found to be substantially true, publication of so many of the plaintiff's imputations as are not found to be substantially true did not further harm the reputation of the plaintiff."
Paragraphs 15, 16 and 17 of the defence, so far as is relevant are in the same terms.
The contextual imputations
The plaintiff's application to strike out the contextual imputations was taken to be under UCPR Pt 14, r 14.28(1). The ground for the challenge was that each contextual imputation was incapable of meeting the requirements of s 26(a) of the Act in that it did not differ in substance from the plaintiff's imputations and, hence, could not be another imputation "in addition to" those of which the plaintiff complains. (It was accepted that a ruling in respect of the contextual imputations pleaded in par 14(a) of the defence would apply to those pleaded in pars 15(a), 16(a), and 17(a).)
Section 26 provides:
"26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ( contextual imputations ) that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations."
The issues of law which will arise in relation to a defence of contextual truth under s 26 are similar to those which arose under s 16 Defamation Act 1974 (the 1974 Act). Relevantly, s 16(1) provided:
"16 Truth: contextual imputations
(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of."
The defence under s 16 was explained in Allen v John Fairfax & Sons [NSWCA, 2 December 1988, unreported] by Hunt J (p 6-p 8) as follows:
" The defence of contextual truth afforded by s16 accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence is available to the cause of action based upon that imputation. It asserts that the imputations pleaded by the defendant (the contextual imputations) are also conveyed by the matter complained of and that, even though the plaintiff's imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant's contextual imputations upon the plaintiff's reputation that the publication of the imputation of which he complains did not further injure his reputation (in the sense that it did not cause additional injury to that reputation.)
The nature of this defence was considered in Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 36 at 38-40 and in Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 395-401, 405. As pointed out in those cases, it is basic to the scheme of s16 that the defendant's contextual imputations must be conveyed by the matter complained of at the same time as an in addition to the imputation of which the plaintiff complains and that the defendant's contextual imputations must differ in substance from the plaintiff's imputations to which they are pleaded. There is, however, no need for the defendant's contextual imputations themselves to differ in substance one from the other, as long as their combined effect differs in substance from the plaintiff's imputation to which they are pleaded. Unless both parties' imputations are conveyed at the same time to the same ordinary reasonable reader, the jury will be unable to weigh or to measure the relative worth or value of the imputation or imputations for which each party contends, as the section requires. I do not need to repeat the discussion of those particular propositions in the cases cited.
The following issues arise for the judge in relation to a defence of contextual truth:
(1) Whether the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) differs in substance from the plaintiff's imputations to which it is or they are pleaded as a defence.
(2) Whether the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) is or are capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which it is or they are pleaded as a defence.
(3) Whether the nature of the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) is or are such that its or their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's reputation that the plaintiff's imputation to which it is or they are pleaded did not further injure that reputation.
(4) Whether there is evidence upon which the jury could find that the contextual imputation or imputations is or are substantially true.
(5) Whether the contextual imputation or imputations relates or relate to a matter of public interest or whether it was or they were published under qualified privilege."
His Honour went on to point out that a preliminary question may arise (as in this case) as to whether the contextual imputations are capable of being conveyed by the matter complained of at the same time as, and in addition to, the plaintiff's imputation. Put another way, the question is whether it is reasonably open to the tribunal of fact to find that the ordinary reasonable reader would have understood the matter complained of to convey at the same time both the plaintiff's imputation and the defendant's contextual imputation(s).
The observations of Hunt J in Allen were cited with approval in John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 by Spigelman CJ (pars 11-13), and Hodgson JA (par 61), Ipp JA agreeing.
The issue in Jones was whether the claimant's contextual imputation namely "The plaintiff was a dishonest broadcaster" was "another imputation" within s 16(1) where the jury had found that the publication had conveyed the plaintiff's imputation that "The plaintiff was a dishonest broadcaster in that ..." (the particular conduct was pleaded). In considering the proper construction of the words "another imputation" the Chief Justice said:
"16 In my opinion, the words "another imputation" are not satisfied where a defendant relies on a contextual imputation which is, in substance, nothing more than an alternative way of formulating the same imputation relied on by the plaintiff, based on exactly the same words in the matter complained of and applying those words in exactly the same way. Such is not a case where, to use Hunt J's formulation, the contextual imputation is "capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation". ( Allen v John Fairfax supra and Hepburn v TCN Channel Nine supra.)
...
19 It may well be that the imputation found by the jury differs in substance from the contextual imputation. Plainly, the Claimant is correct to submit that a single publication may convey two or more imputations of different degrees of seriousness. It is also correct to say that what may be proved by way of justification of the imputation found by the jury differs from what may be proved by way of justification of the contextual imputation. None of this determines the proper meaning of the words in s16. Whether or not an imputation is a permissible alternative if pleaded by a plaintiff does not mean it is "another" imputation for purposes of the s16 defence. The test for plaintiff's imputations - differ in substance - is a necessary but not sufficient test for 'another' imputation, which requires a difference in kind.
20 In my opinion, the purpose of s16 was directed to a situation in which the same publication conveyed imputations which differ in their character, not merely a different way of formulating the same imputation at a higher level of generality. The examples outlined in Plato Films supra are the former. The contextual imputations in issue here are the latter."
His Honour found that the contextual imputation, although formulated at a higher level of generality, was merely an alternative to, and did not differ in substance from, the plaintiff's imputation. Accordingly, he found that it was incapable of being conveyed as "another imputation" within s 16(1).
Hodgson JA disagreed, but not as to the requirements of the defence. He found (par 63) that the contextual imputation differed in substance from the plaintiff's imputation and hence was capable of being "another imputation" within s 16(1). He found (par 99) that the contextual imputation was not a formulation of the same imputation at a higher level of generality.
Ipp JA (pars 111, 112) found that the meaning of the plaintiff's imputation and of the contextual imputation was, in effect, the same in that each carried a broad meaning. Also, he said (par 110):
"110 Generally speaking, the same words may be capable of bearing a broad defamatory meaning and a narrow defamatory meaning. I accept that if a plaintiff sues for defamation, relying only on the narrow meaning of the words, the broad meaning will ordinarily be "another meaning" within the meaning of the phrase in s 16(1) of the Defamation Act 1974 ."
He agreed with the Chief Justice that the contextual imputation be struck out. It is apparent that he found that the imputations did not differ in substance, and thus the contextual imputation was incapable of meeting the statutory requirement.
Much time was taken up at the hearing in the course of the defendants' submissions in agitating whether the approach taken by the Chief Justice was at odds with that taken by his brethren. However, in my opinion, analysis of the judgments reveals no inconsistency between their Honours with regard to the principles which govern the application of s 16(1) as explained by the Chief Justice. In short, the Chief Justice and Ipp JA held that, in the circumstances, the contextual imputation did not meet the test, and Hodgson JA held that it did.
In any event, Jones must now be accepted as authority for the proposition that a defendant will only be able to plead a contextual imputation if it differs in substance from the imputation pleaded by the plaintiff ( John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484, par 16). Furthermore, after reviewing the authorities, including Jones , McColl JA reformulated the issues as stated by Hunt J in Allen and she said (par 212):
"212 These authorities can be summarised as follows:
(a) the defence of contextual truth under s 16 was created to fill a lacunae in the common law by enabling a defendant to justify a meaning of the matter complained of upon which the plaintiff had not relied;
(b) a contextual imputation must be another imputation from the plaintiff's imputation; the test of whether it differs in substance from the plaintiff's imputation is a necessary but not sufficient test for 'another' imputation, which requires a difference in kind ( Jones ); it must be a "truly alternative" imputation ( Hepburn );
(c) a contextual imputation may plead a different "sting" entirely from that relied upon by the plaintiff; and
(d) a plea of contextual truth admits that the matter complained of conveyed the imputations relied upon by the plaintiff, does not seek to justify those imputations (save where a contextual imputation singly, or in combination, pleads back one of the plaintiff's imputations), but seeks to establish that by reason of the substantial truth of the contextual imputation(s), the imputation complained of does not further injure the reputation of the plaintiff."
As Simpson J pointed out in Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645 (par 50-52) although the sense of s 16 of the 1974 Act is not different from that of s 26 of the Act, there is some difference in the language. Under s 16(1) a contextual imputation is "another imputation" made by the same publication. Under s 26(a) contextual imputations are "other imputations" carried "in addition to" the plaintiff's imputations.
In my opinion, by the incorporation of the phrase "in addition to" the effect of s 26(a) encapsulates issues (1) and (2) as stated by Hunt J in Allen (p 7) (par 15 above). The phrase removes any erstwhile confusion about what is required to establish a contextual imputation as a defence.
In my assessment, the cases show that, for the purposes of s 26(a), to prove that the matter carried in addition to the plaintiff's imputations one or more other imputations, a defendant must show that such imputations differ in substance from the plaintiff's imputations. Accordingly, an imputation which is pleaded as an alternative formulation of the very imputation relied upon by the plaintiff could not be one carried in addition to that imputation. Put another way, it is not enough for a defendant to show that it is another imputation merely by reference to its formulation. The statute requires that it be carried "in addition to" the plaintiff's imputation, which involves showing that it is different in substance from that imputation. For example, as in Jones, if the defamatory sting of the defendant's broad imputation was substantially similar to the defamatory sting of the plaintiff's narrow imputation, it would not meet the requirements of s 26(a) of the Act.
The test is straightforward enough, and it would be unhelpful to embroider it with some idiosyncratic gloss. The difficulty sometimes lies in its application in a particular case. Ultimately, the result of the evaluation process is one of impression taking into account the defamatory quality of each party's imputations with regard to the contents of the matter complained of which conveys them. In order to consider whether the defendants' contextual imputations are capable of being conveyed by the matter complained of at the same time as and in addition to the imputations pleaded by the plaintiff it is necessary to establish "... just what is the precise act or condition which is asserted of or attributed to the plaintiff both by the plaintiff's own imputations and by the defendants' contextual imputations" ( Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, p 41E). The scope of an imputation must be taken to include all imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations of meaning of substantially similar imputations. ( Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, p 771, Chakravati v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 pp 24, 60, 139.) Where the plaintiff's imputations are more than one it will be necessary to consider all of them, separately and in combination, to determine whether a contextual imputation is carried in addition to them. The exercise requires a commonsense approach to an understanding of the publication which is expected of the ordinary reasonable reader.
I turn now to the challenges to the contextual imputations in par 14(a) of the defence on the ground that each did not differ in substance from the plaintiff's imputations and, hence, could not be another imputation in addition to those of which the plaintiff complains.
Imputation (i) is:
"The plaintiff as a pornographer has engaged in criminal conduct."
Relevantly, the plaintiff's imputations in par 5 amended statement of claim are:
"(d) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop in which police found drugs that they seized;
(e) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop from which police seized more than 1000 DVDs and pornographic material;
(f) The plaintiff is a pornographer, in that he owns the adult shops Pleasure Chest and Adult Shop which sell pornographic material;
(g) The plaintiff is a criminal, in that he supplied illegal DVDs through his adult shops Pleasure Chest and Adult Shop;
(h) The plaintiff is a drug dealer."
The defendants submitted that, in the context of the article, the assertion of criminal conduct as a pornographer refers to criminal conduct of a general kind which could reasonably be understood as saying something different from the plaintiff's imputations which, in each case, link the charge to specific incidents described in the article.
In my opinion, the defendants' submissions should not be accepted. Plaintiffs imputations (d) and (h), with reference to drugs, and imputations (e) and (g), with reference to DVDs, are clearly capable of being understood as allegations of criminal or illegal conduct as a pornographer. These imputations are taken to include imputations not substantially different, as well as shades and gradations of similar imputations ( Morosi ). I am unpersuaded that the ordinary reasonable reader could discern from the article a distinction in substance between imputation (i) and the plaintiff's imputations, or that imputation (i) would be understood to be conveyed at the same time and in addition to the plaintiff's imputations.
Accordingly, I propose to order imputation (i) be struck out.
Imputation (ii) is:
"The plaintiff is a pornographer."
Relevantly, the plaintiff's imputation is:
(f) The plaintiff is a pornographer, in that he owns the adult shops Pleasure Chest and Adult Shop which sell pornographic material;"
A pornographer is "one who writes or sells pornography". Pornography includes "obscene literature, art, or photography, designed to excite sexual desire" ( Macquarie Dictionary , 4 th Ed, 2005).
The defendants submitted that the broad meaning of imputation (ii) is of a different quality or kind to the plaintiff's narrow meaning. It was that, with regard to the description in the article of the plaintiff as a "porn shop king ... the largest distributor of adult pornography on the east coast" and as the owner of a "porn shop empire" the reader would gain the impression that he is a pornographer in a more general sense than that encapsulated in imputation (f). It followed, so it was put, that the reader would be left with the impression that the plaintiff is a pornographer by reason of his ownership of two adult shops, and at the same time would derive the additional impression that he is a pornographer.
I do not accept the defendants' submission. The essential meaning of both imputations is the same, namely that the plaintiff is a pornographer. I find imputation (ii) is a formulation at a higher level of generality of imputation (f). Accordingly, I propose to order imputation (ii) be struck out.
It is convenient to deal with imputations (iii) and (iv) together. They are:
"(iii) The plaintiff owns porn shops at which illegal goods were offered for sale;
(iv) The plaintiff owns porn shops at which illegal goods and pornographic material were seized by police during police raids on those shops."
Relevantly, the plaintiff's imputations are:
"(a) The plaintiff owns adult shops that were raided by police and closed down 10 days ago;
(b) The plaintiff owns adult shops in which 700 bottles of Amyl Nitrate were found by police;
...
(d) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop in which police found drugs that they seized;
(e) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop from which police seized more than 1000 DVDs and pornographic material;
...
(g) The plaintiff is a criminal, in that he supplied illegal DVDs through his adult shops Pleasure Chest and Adult Shop;"
In essence, the defendants submitted that imputation (iii) differed in substance from imputations (b), (d), and (g), and was additional to them in that imputation (iii) referred to illegal goods generally, whereas the plaintiff's imputations specified the goods offered for sale. In my opinion imputation (iii) has a similar meaning to imputations (b), (d) and (g) considered separately, or in combination. I find that it is incapable of being carried by the article at the same time and in addition to these plaintiff's imputations. Accordingly, I propose to order imputation (iii) be struck out.
With regard to imputation (iv) the defendants submitted that it differed in substance from imputations (a), (b), (d), and (e), and was additional to them in that imputation (iv) refers generally to the goods and material whereas the plaintiff's imputations referred specifically to goods and material found and seized. I reject the submission for the reasons given in respect of imputation (iii). I propose to order imputation (iv) be struck out.
Imputation (v) is:
"(v) The plaintiff deserved to have his porn shops shut down because those shops offered illegal goods for sale."
Relevantly, the plaintiff's imputations are:
"(a) The plaintiff owns adult shops that were raided by police and closed down 10 days ago;
(b) The plaintiff owns adult shops in which 700 bottles of Amyl Nitrate were found by police;
...
(d) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop in which police found drugs that they seized;
(e) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop from which police seized more than 1000 DVDs and pornographic material;
...
(g) The plaintiff is a criminal, in that he supplied illegal DVDs through his adult shops Pleasure Chest and Adult Shop;"
It was accepted that imputation (v) was capable of being conveyed.
I accept the defendants' submission that imputation (v) differs in substance from the plaintiff's imputation. It attributes a condition to the plaintiff of a different kind to the acts and conditions alleged in the plaintiff's imputations. This is not a case where the contextual imputation is an alternative to the plaintiff's imputation(s). In my opinion the article is capable of conveying to the ordinary reasonable reader imputation (v) at the same time and in addition to the plaintiff's imputations. Accordingly, the plaintiff's application in respect of imputation (v) fails.
The particulars
The defendants plead the defence of justification to the imputations pleaded in pars 5(d), 5(e), 5(f), and 5(g), and to the corresponding imputations in par 8, of the amended statement of claim. The plaintiff seeks an order under r 14.28(1) striking out the particulars pleaded in support of the defence to imputations 5(d), (e), and (g) on the ground that they are incapable of establishing the substantial truth of these imputations.
Imputation 5(d) is:
"(d) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop in which police found drugs that they seized;"
The particulars of truth are:
"(a) In or about July 2005 the plaintiff was a proprietor of the porn shop Everything Adult Penrith in the State of New South Wales;
(b) On or about 20 July 2005, Everything Adult Penrith was subject to a police raid pursuant to which 27 bottles of the drug known as Amyl Nitrate were seized."
Imputation 5(e) is:
"(e) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop from which police seized more than 1000 DVDs and pornographic material;"
The particulars of truth are:
"(a) In or about July 2005 the plaintiff was a proprietor of the porn shop Everything Adult Penrith in the State of New South Wales;
(b) On or about 20 July 2005, Everything Adult Penrith was subject to a police raid in which thousands of pornographic DVDs and VHS films were seized, the offering for sale of which may have been contrary to ...".
(c) (The pornographic films seized are listed)
(d) On or about 21 May 2009 the plaintiff was convicted in the Penrith Local court in connection with the sale of illegal pornographic films at a Penrith porn shop operated by him, such films having been previously seized by the police."
(e) (The films seized are listed)."
Imputation 5(g) is:
"(g) The plaintiff is a criminal, in that he supplied illegal DVDs through his adult shops Pleasure Chest and Adult Shop;"
The particulars of truth are:
"(a) In or about 2008 the plaintiff was a proprietor of the porn shop Everything Adult Brisbane in the State of Queensland;
(b) In or about 2008 the plaintiff was prosecuted by Queensland Office of Fair Trading for selling illegal films and magazines at Everything Adult Brisbane;"
(c) (The illegal material offered for sale is listed).
(d), (e), (f) contain particulars relating to the shop Everything Adult Penrith and (e) to the police raid on 20 July 2005 similar to those given with respect to imputation 5(e).
(g), (h), (i) are particulars relating to the prosecution and conviction of the plaintiff subsequent to the police raid.
"(j) On or about 21 May 2009 the plaintiff was convicted in the Penrith Local Court in connection with the sale of illegal pornographic films at a Penrith porn shop operated by him, such films having been previously seized by the police;"
(k) (The films in relation to which the plaintiff was convicted are listed)
The principles were recently stated in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 by McColl JA as follows:
"138 In order to establish imputation 12 was substantially true, the appellant had to establish that every material part of it was true: Howden v Truth & Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416 (at 419) per Starke J; (at 420) per Dixon J; (at 424 - 425) per Evatt J. However this does not mean the appellant had to prove the truth of every detail of the words established as defamatory ( Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109 (at [85]) per Gillard J), rather the defence of substantial truth is concerned with meeting the sting of the defamation: Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 (at [274]) per Gillard AJA (Winneke ACJ generally agreeing and Warren AJA agreeing). As Lord Shaw of Dunfermline explained in Sutherland v Stopes [1925] AC 47 (at 79):
'It remains to be considered what are the conditions and breadth of a plea of justification on the ground of truth. The plea must not be considered in a meticulous sense. It is that the words employed were true in substance and in fact. I view with great satisfaction the charge of the Lord Chief Justice when he made this point perfectly clear to the jury, that all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out . To which I may add that there may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel or in the justification pleaded for it .' (emphasis added).
...
141 In order to understand the materiality of the words used in imputation 12, it is open to the Court to have regard to the matter complained of which explains their significance : ABC v McBride (at [47]) per Ipp AJA."
Inaccuracy in some detail is immaterial provided it does not alter or aggravate the character of the imputations and so long as the real "sting" of the imputation is shown to be true ( Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440, p 449; Rofe v Smith's Newspapers Ltd (1924) 25 SR(NSW) 4, p 22). In Jones , Hodgson JA said (par 61) that the defendant may not use other acts of dishonesty as a broadcaster to justify the plaintiff's (specific) imputation.
It is well established that a court should proceed with caution on an application such as this. In this case the application is directed to the pleaded particulars and not to the defence itself. For the plaintiff to succeed it is necessary to establish that the particulars fall so far short of being capable of supporting the truth of the imputations that they should be struck out ( Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376, per Hodgson JA, par 20.)
Section 25 of the Act provides:
"25 Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true."
Under this defence, the defendant undertakes to prove the substantial truth of the plaintiff's imputations, or imputations not substantially different therefrom. It was common ground that the defendant's task is to prove the truth of the defamatory sting of the imputations.
On behalf of the defendants it was submitted that (T p 41, l 36 - l 47):
"DAWSON: ... lets not beat around the bush, what we are proposing to do in relation to imputations (d), (e) and (g) and if your Honour looks at page 6 and following in the defence, we are seeking to justify the substantial truth of the plaintiff's imputations by reference to material that the defendants have available to them, which doesn't relate to the two particular shops referred to in the imputations and referred to in the matter complained of, but by reference to other premises owned by the plaintiff where precisely the same thing happened.
HIS HONOUR: Why are you entitled to do that?
DAWSON: The short point is that justifies the substantial truth, that is, the sting of the imputation."
It was put that the tense and identity of the shops were arguably not material to the sting of imputations 5(d) and (e), and that the identity of the shops was arguably not material to the sting of imputation 5(g). It was put that the materiality of these elements of the plaintiff's imputations to their defamatory sting was an issue for the jury, as was the question whether the evidence foreshadowed in the particulars would establish in each case the substantial truth of the imputations.
In summary, the defendants put (T p 54, l 10 - l 19):
"DAWSON: These are particulars of precisely the conduct alleged with the sole difference being it wasn't at Pleasure Chest and Adult Shop, it was elsewhere. What does it matter if it was in Queensland? What does it matter if it was in Penrith? What does it change about the substance of the sting, the materiality of the sting, of the imputation? Which is, look, you are a criminal because you are selling illegal DVDs through your porn outlets and that is what the particulars show. Again, that is something we ought to be able to put to a jury. It justifies the substance of the sting and, in my respectful submission, that is the beginning and the end of it."
In my opinion, having regard to the contents of the matter complained of, the defendants' submissions as to the materiality of the words used in the plaintiff's imputations must be rejected. The imputations are cast in the present tense, referable to the plaintiff's acts or condition as the owner of identified shops. The matter complained of, published on 6 June 2010, concerns the plaintiff's commercial activity in the conduct of these shops at, and shortly before, that time. The police raids were said to have taken place "10 days ago". The focus is on the plaintiff's conduct of specific shops at the relevant time.
In my opinion the elements of tense and identity of the shops are not details irrelevant to the meaning of each imputation, but affect the substance of the defamation to be defended. For example, imputation 5(e) attributes present criminality to the plaintiff, by reason of the conduct specified. A defence of justification must meet this allegation.
It is unnecessary to refer seriatim to the challenged particulars which, in terms, indicate they relate to events and occasions neither referred to in the article nor embraced in the imputations. It is sufficient to note the obvious, namely that the particulars demonstrate that these events and occasions are entirely different to those described in the article, and irrelevant to the issue of substantial truth in this case.
In my opinion there is such a wide difference between the facts asserted in the particulars and the imputations as to justify removing from the issues for trial the issues raised in the particulars. To do otherwise would be to give each imputation a meaning much wider than it bears. Furthermore, in my opinion, it should not be open to the defendants to defend these specific imputations by reference to any other alleged occasions merely on the ground that they are allegedly true examples in the past conduct of the plaintiff of the kind of wrongdoing of which a specific charge has been made. In the circumstances, it would be wrong to permit the defendants to prolong the hearing and to adduce much evidence not relevant to the real issues for the jury's determination.
Accordingly, I hold that the challenged particulars fall so far short of being capable of supporting the truth of imputations 5(d), (e) and (g) that they should be struck out.
Conclusion
I make the following orders:
(1) The contextual imputations in pars 14(a)(i), (ii), (iii) and (iv), and the corresponding contextual imputations in pars 15(a), 16(a), and 17(a) of the defence be struck out.
(2) The particulars pleaded in the defence under the defence of truth to imputations 5(d) and 8(d), 5(e) and 8(e), and 5(g) and 8(g) be struck out.
(3) The defendants pay the plaintiff's costs.
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Decision last updated: 05 April 2011
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