Ange v Fairfax Media Publications Pty Ltd

[2010] NSWSC 645

CITATION:	Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 645
HEARING DATE(S):	5 May 2010
JUDGMENT DATE :	21 June 2010
JURISDICTION:	Common Law
JUDGMENT OF:	Simpson J
DECISION:	Contextual imputation (iv) is struck out.
CATCHWORDS:	DEFAMATION – pleadings – defence – whether parts of truth and contextual truth defences should be struck out under UCPR 14.28(1) – adequacy of particulars to support truth defence – test to be applied – capacity of matter complained of to convey contextual imputation pleaded – whether contextual imputation pleaded is an “other imputation” – context of publication relevant – permissible breadth of contextual imputation – adequacy of particulars of the truth of contextual imputations to support contextual truth defence – effect of admission by plaintiff of some particulars of truth – whether fact is in issue after admission – whether contextual imputations differ in substance – availability of particulars of bad reputation to support plea of bad reputation
LEGISLATION CITED:	Civil Procedure Act 2005 Defamation Act 2005 Evidence Act 1995 Uniform Civil Procedure Rules
CATEGORY:	Procedural and other rulings
CASES CITED:	Allen v John Fairfax & Sons Ltd (NSWSC, 2 December 1988, unreported) General Steel Industries Inc v Commissioners for Railways (NSW) [1964] HCA 69; 112 CLR 125 Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 Maisel v Financial Times Ltd [1915] 112 LT 953
PARTIES:	Con Ange (Plaintiff) Fairfax Media Publications Pty Ltd (First Defendant) Fairfax Digital Australia & New Zealand Pty Ltd (Second Defendant) Jacqueline Magnay (Third Defendant)
FILE NUMBER(S):	SC 2009/297676
COUNSEL:	S T Chrysanthou (Plaintiff) T D Blackburn SC/A T S Dawson (Defendants)
SOLICITORS:	Kalantzis Lawyers (Plaintiff) Johnson, Winter & Slattery (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

SIMPSON J

21 June 2010

2009/297676 Con Ange v Fairfax Media Publications Pty Ltd & Ors

JUDGMENT

1 HER HONOUR: By amended statement of claim filed on 24 September 2009, the plaintiff, Con Ange, claims damages for defamatory imputations that he asserts were conveyed by the defendants on 21 May 2009 in an article published in the Sydney Morning Herald, a newspaper circulating in NSW and other States and Territories, and on the Internet.

2 The defendants have filed a defence, and have foreshadowed an application to seek leave to file an amended defence.

3 In the present proceedings, the plaintiff seeks:

• orders that certain parts of the filed defence be struck out;
• that leave be refused to the defendants to file the proposed amended defence (by reason of certain portions thereof said to be objectionable).

4 The proceedings are governed by Defamation Act 2005 (“the Act”).

Background

5 In what follows I shall, where referring to the pleadings, assume, for the purposes of this judgment only, the truth of facts and matters pleaded. Such statements do not, of course, represent any findings of fact.

6 There were two publications of the article, in identical terms: the first was published in the hard copy of the newspaper; the second on the Internet version.

7 The article appeared under a headline:

“The punch that cost the Sharks $20,000”

8 Under the headline was a large photograph of the face of a woman, who was badly bruised about one eye (possibly both eyes). The photograph was captioned: “Trauma and bruising”, and named the woman, who was said to have been accidentally hit by “the Sharks’ chief executive”. (“The Sharks” was identified as the Cronulla Rugby League Club, to which I will refer as “the Club”.) Two other photographs, of the faces of men, accompanied the article.

9 The article opened by stating that the Club had paid $20,000 to the woman, who had been “accidentally” hit in the face by the Club’s chief executive (not the plaintiff). There was some other presently irrelevant reportage. The passages relevant to the present proceedings then followed. They need to be reproduced in full. For the purpose of the proceedings, the paragraphs have been numbered, although the numbering did not appear in the original, and it is convenient to adopt that numbering. The relevant passages are:

6 “The Herald has learnt that a club culture that became public with revelations of a group sex incident in Christchurch in 2002 has continued in recent years.

7 Sex toys have been distributed to players and sex workers have entered the dressing room with a club supporter after a game.

8 Sources have confirmed that early last year players were offered sex toys to take home to their wives and girlfriends. The items were stored in and distributed from the club’s offices. Some players’ partners were horrified that players and officials might judge their sex lives on the choice of ‘toy’.

9 Also last year an unofficial supporter of the club, a sex shop owner, Con Ange, entered the dressing room after a game at Shark Park with two scantily dressed female friends, who were introduced as ‘Bitch One and Bitch Two’. That phrase is understood to have been used in reference to other women around the club in other introductions.

10 ‘It was pretty clear what was on offer and it wasn’t Con,’ a club source said of the two women in the dressing room.

11 Mr Ange owns more than 20 adult shops known as ‘Everything Adult’. He was an associate of the Kings Cross identities Ashtray Frank and Fatty and Skinny Steve who worked at Porkys and the Love Machine. He was the focus of the Pandora police taskforce in 1996 and charged in relation to $1.7 million worth of stolen property. The charges were dropped.

12 Last year the Queensland Department of Fair Trading fined him $5000 for selling hardcore items that had been refused classification in any state.”

10 In paragraph 5 of the amended statement claim the plaintiff pleads that five imputations defamatory of him were conveyed by this publication. They are:

“5(a) That he contributed to an offensive sexual culture at the Cronulla Sharks rugby league club;

(b) That he horrified Sharks’ players’ partners by distributing sex toys to the players;

(c) That he procured two prostitutes to enter the Sharks’ dressing room after a game, offering their services to players;

(d) That he used deeply offensive words when he introduced two prostitutes he had procured for Sharks’ players as ‘Bitch One’ and ‘Bitch Two’;

(e) That he had so conducted himself as to warrant police investigation for stealing property worth $1.7 million.

In the alternative to (e),

(f) That he had so conducted himself as to be reasonably suspected by police of stealing property worth $1.7 million.”

I shall refer to these collectively as “the plaintiff’s imputations”.

11 The defendants plead only two defences: truth, pursuant to s 25 of the Act, and contextual truth, pursuant to s 26 thereof. They have given extensive particulars of the defence of truth to the plaintiff’s imputations, and of the truth of the contextual imputations it has pleaded. The amendments they seek are as to the particulars of the truth of the contextual imputations. By way of mitigation of damages, the defendants plead that the plaintiff is of bad reputation. That plea is also particularised.

12 The defence of contextual truth is provided by s 26 of the Act, in the following terms:

“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.”

13 The contextual imputations are pleaded by the defendants in paragraph 8 of the defence. They are:

“(i) that the Plaintiff is a pornographer;

(ii) that the Plaintiff is a distributor of illegal hard core pornography;

(iii) that the Plaintiff has been fined for distributing illegal, hard-core pornography;

(iv) that the Plaintiff has engaged in conduct involving deeply offensive language;

(v) that the Plaintiff has engaged in deeply offensive conduct.”

14 In accordance with UCPR 14.33(2), the defence pleads that each contextual imputation was substantially true and that, by reason thereof, the imputations pleaded by the plaintiff did not further harm the plaintiff’s reputation.

15 The defamation list is conducted with a degree of informality, with a view to keeping costs in check, and resolving, as expeditiously as possible, the real issues that arise between the parties. One consequence is that parties making challenges to pleadings are not required to formulate, in notices of motion, the orders sought.

16 By letter dated 28 April 2010 to the defendants’ solicitors, the plaintiff’s solicitors stated their position. They:

“1. oppose leave being granted for the filing of the proposed Amended Defence …

2. seek an order that contextual imputations (i), (ii), (iv) and (v) in the Defence … be struck out;

3. seek an order that the truth defence to imputation 5(a) be struck out;

4. seek an order that the defendants not be granted leave to rely on the particulars of Contextual imputation 8(a)(ii) and 8(a)(iii) … of the proposed Amended Defence;

5. seek an order that the defendants not be granted leave to rely on the particulars of Contextual imputation 8(a)(iv) … of the proposed Amended Defence;

6. seek an order that the defendants not be granted leave to rely on the particulars of bad reputation in the proposed Amended Defence.”

The source of power to make the orders numbered 2 and 3 on which the plaintiff relies is UCPR 14.28(1).

17 An order under UCPR 14.28(1) may be made only on the principles stated in General Steel Industries Inc v Commissioners for Railways (NSW) [1964] HCA 69; 112 CLR 125.

18 The issues for present determination concern:

• the adequacy of the pleaded particulars of truth to support the s 25 defence (truth),
• the capacity of the matter complained of to convey some of the contextual imputations pleaded,
• the adequacy of the particulars of the truth of the contextual imputations to support the s 26 defence (contextual truth), and
• the availability of one of the pleaded particulars of bad reputation to support that plea.

19 It is convenient to deal with the orders sought in a sequence different from that set out in the correspondence. I will, however, for ease of reference, retain that numbering system.

3: that the truth defence to imputation 5(a) be struck out

(Imputation 5(a) is that the plaintiff contributed to an offensive sexual culture at the Club)

20 The basis upon which this order is sought is that, even if the facts asserted in the particulars subscribed thereto are wholly proved, the evidence would be insufficient to demonstrate the truth of the imputation. In other words, I am invited (I take it) to proceed upon the basis that the particulars in their entirety are the subject of evidence that is accepted. Even so, the plaintiff argues, the evidence would be insufficient to establish the truth of the imputations.

21 To succeed in this endeavour the plaintiff must show that, taken at their highest, the matters particularised would not be capable of establishing that the plaintiff contributed to an offensive sexual culture at the Club.

22 It is necessary, therefore, to review, in some detail, the particulars provided. They are lengthy and detailed. The particulars are (to some extent, for the sake of brevity, I paraphrase):

(a)	that the plaintiff is a producer, distributor and retailer of pornographic material;
(b), (c)	that the plaintiff is a director, shareholder and owner of (named) companies that conduct business at a chain of about 23 sex shops and an online Internet business throughout NSW, Queensland and Victoria;
(d)	that the sex shops offer for sale sexual magazines, X-rated videos, DVDs and sex aids and are conducted out of restricted premises;
(e)	that the web site and advertising material for the online sex shops refer to and display a wide range of sex toys (of which examples are given);
(f), (g), (h)	respectively: in these particulars are listed the titles of X-rated movies and videos on sale in the plaintiff’s sex shops, the titles of some of 150 pornographic films said to have been released by a pornographic production company of which the plaintiff is a co-owner, and the titles of eight pornographic films which the plaintiff has directed or in which he has appeared;
(j)	(by adoption of particulars of truth of contextual imputation 8(a)(ii)) that the plaintiff has been fined $5000 by the Queensland Office of Fair Trading for selling DVDs prohibited from sale in Queensland; that a Penrith branch of the plaintiff’s business was, in July 2005, subject to a police raid in which “thousands” of DVDs and films, the sale of which was prohibited, were seized; prohibited material the plaintiff possessed with the intention of selling included bestiality films and pornographic films depicting graphic violence as well as actual intercourse; that the plaintiff was thereafter prosecuted and fined in NSW for possession with intent to sell and sale of unclassified pornographic videos and films involving bestiality, graphic sexuality and sexual violence; that the plaintiff was convicted and fined in respect of a series of charges following those events;
(k)	that the pornographic material produced, distributed and/or sold by the plaintiff, and the pornographic movies that the plaintiff has directed or in which he has appeared, are offensive and demeaning to, and do not respect the dignity of, women;
(l)	that the plaintiff, as a notoriously known pornographer, has publicly associated himself with the Club, in that he was a public supporter of the Club, he was an associate of the then general manager of the Club, together with other Club officials, that he regularly attended the Club’s games and was provided with privileged access to the players’ dressing rooms after games; that he attended social functions with Club players and officials, that he gave t-shirts and hats promoting a pornographic magazine to Club players;
(o)	that the plaintiff has publicly expressed support for members of the Club who engaged in inappropriate and offensive sexual conduct involving group sex with a 19 year old girl after a trial match against New Zealand in 2002.

23 The particulars are unusually detailed, and, in some respects, in unusual form.

24 What is clear from them is that the defendants propose, in order to prove the truth of imputation 5(a), to prove:

• that the plaintiff has a long history and heavy involvement, whether as producer or purveyor, in pornography;
• that the pornographic material with which he has been involved is offensive and demeaning to women;
• that the plaintiff has a close association with the Club;
• that the plaintiff’s activities in respect of pornography, in combination with his close association with the Club, means that he contributed to an offensive sexual culture at the Club.

(I note that, despite the extensive and comprehensive nature of the particulars, there is no allegation that there is, in reality or in fact, an offensive sexual culture at the Club. If it is necessary, that can be remedied.)

25 As I have indicated above, the basis upon which the plaintiff seeks to have this imputation struck out is that, even if all of the above is proved, it would be insufficient to establish the truth of the imputation that the plaintiff contributed to an offensive sexual culture at the Club.

26 As I understand it, the objection is to the process of reasoning upon which a jury would be invited to embark. However, in oral submissions, it was put that the particularisation of truth of this imputation ought to be seen as:

“… an attempt to put before the jury [evidence] to prejudice [the] jury against the plaintiff.”

It was also argued that the facts particularised are irrelevant to the imputation.

27 These last submissions clearly identify a difficulty in what the plaintiff now seeks. They trespass dangerously upon the role of the trial judge in determining the admissibility of evidence. To characterise particulars (which are merely the forerunners of evidence that will be tendered) as irrelevant or an attempt to create prejudice is to raise issues more properly dealt with in the context of admissibility of evidence. By saying this I do not mean to suggest that it will never be appropriate to consider the capacity of a particularised case to establish what it purports to establish. A similar issue was argued before Nicholas J in Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763. There the submission concerned contextual imputations, but the principle is, of course, no different.

28 At [44] his Honour held that the application, properly analysed, was for summary dismissal of a substantial part of the defendant’s case on contextual truth. He declined to take that course. An application for leave to appeal was dismissed: Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376. Hodgson JA, with whom Tobias JA and Santow J (as he then was) said, at [20]:

“For my part I would accept that there could be circumstances where particulars fall so far short of being capable of supporting the truth of imputations that it could be justified to strike out imputations. However, the particulars do not themselves indicate the outer limits of what may be proved. They indicate, in effect, topics on which evidence may be led. But the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate.”

29 In addition to that, I would observe, again, that what is here sought overlaps, to an impermissible extent, with the role of the trial judge.

30 In any event, I am not satisfied, certainly not to the very stringent standard set by General Steel, that the case outlined by the particulars is incapable of establishing the truth of the imputation. It will be a question of what inferences might be drawn by the tribunal of fact from the evidence admitted and accepted.

31 Counsel for the plaintiff sought to support the attempt to strike out the defence by pointing to s 56 of the Civil Procedure Act 2005, and to the extent of pre-trial work that will be necessary in order to prepare to meet the particulars. Those are not irrelevant circumstances. However, they are not sufficient to displace the other considerations.

32 I decline to make an order of the kind here sought.

2: an order that contextual imputations (i), (ii), (iv) and (v) be struck out

These are the imputations that (i) the plaintiff is a pornographer; (ii) the plaintiff is a distributor of illegal hardcore pornography; (iv) the plaintiff has engaged in conduct involving deeply offensive language; and (v) the plaintiff has engaged in deeply offensive conduct.

(i) the plaintiff is a pornographer

33 The argument in relation to this contextual imputation is that it is not capable of being conveyed by the matter complained of. In written submissions it was argued that the imputation “does not arise” from the article to the extent that an accusation that the plaintiff is a pornographer is interpreted to mean that he is a maker of pornography (as distinct from a purveyor). So much is correct. There is nothing in the article that suggests that the plaintiff is a maker of pornography. However, counsel accepted that the word “pornographer” encompasses a supplier of pornography as well as a producer. The concession is supported by recourse to the Macquarie Dictionary, which defines “pornographer” as:

“… one who writes or sells pornography”

34 The matter complained of is amply capable of supporting the imputation as framed.

35 However, the argument went further. It was submitted that the true accusation levelled against the plaintiff by the defendants is, not that he is a maker or producer of pornography, but that he is a distributor or purveyor thereof. This, it was argued, emerges from the particularisation of the truth of contextual imputation (i). Those particulars adopt and repeat certain of the particulars of the truth of imputation 5(a) (see above). If that is correct, then (it was argued) contextual imputation (i) does not differ in substance from contextual imputation (ii). There are two immediate answers to this proposition. The first is that the particulars are not limited to asserting that the plaintiff is a distributor of pornography; they include assertions that he is a co-owner of a “pornographic film production company”; and that he has participated, by appearing in or directing pornographic films, in making pornography. The second answer is that contextual imputation (ii) asserts distribution of “illegal hard-core pornography”; contextual imputation (i) is limited to “pornography”.

36 Counsel for the plaintiff called in aid the decision of the Court of Appeal in John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205.

37 In Jones, the plaintiff had pleaded an imputation:

“The plaintiff was a dishonest broadcaster, in that [and a very specific instance of dishonesty was given]”

38 That is, in the imputation pleaded by the plaintiff, the accusation of dishonesty as a broadcaster was deliberately and expressly confined to a specific instance of dishonesty. No doubt this was carefully pleaded, with cases such as Maisel v Financial Times Ltd [1915] 112 LT 953 in mind. To prove the truth of that imputation, the defendants would have to prove that the plaintiff had engaged in the specific conduct identified in the imputation. Had the plaintiff pleaded a more general imputation, for example, that he was a dishonest broadcaster, it would be open to the defendants to prove dishonesty as a broadcaster in respects other than that stated in the imputation. That is the effect of the decision in Maisel.

39 In Maisel, the defendant had published what purported to be a news report concerning the plaintiff’s activities as a managing director of an oil company. The plaintiff was said to have been involved in fraud “in connection with patents”.

40 The plaintiff pleaded that this publication imputed that he was a man of dishonest character, and that he was unfit to be a director (an imputation noticeably wider, and more general, than what was contained in the article).

41 The defendant pleaded truth, which it particularised by reference to dishonest acts on the part of the plaintiff other than those the subject of the article. The House of Lords held that the defendant was, in the circumstances, entitled to do so.

42 To return to Jones: by way of defence, the defendant pleaded contextual truth (under s 16 of the Defamation Act 1974 (“the 1974 Act”), the forerunner to the Act) and specified a series of contextual imputations.

43 Section 16 provided:

“ Truth: contextual imputations
(1) Where an imputation complained of is made by the publication of any report, article … 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.
(2) It is a defence to any imputation complained of that:
(a) the imputation relates to a matter of public interest or is published under qualified privilege,
(b) one or more imputations contextual to the imputation complained of:
(i) relate to a matter of public interest or are published under qualified privilege, and
(ii) are matters of substantial truth, and
(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.” (italics added)

44 The first of the contextual imputations pleaded was, simply:

“The plaintiff was a dishonest broadcaster”

45 Thereafter two further contextual imputations began with the words:

“The plaintiff was a dishonest broadcaster”

which were followed by specific instances of alleged dishonesty as a broadcaster; each instance was, however, an alternative way of describing or characterising the conduct that was specified in the imputation pleaded by the plaintiff. These were, in reality, no more than variants on the imputation pleaded by the plaintiff. There were further contextual imputations of the same general kind.

46 Spigelman CJ, with whom Ipp JA agreed, identified the relevant question for determination as:

“7 … where a plaintiff asserts that his character has been impugned by an allegation that he engaged in specific conduct, can a defendant establish that the plaintiff does have the relevant character defect by reason of conduct other than that referred to in the matter complained of?”

47 His Honour noted (at [9]) that a plaintiff who pleads an imputation of, relevantly, general dishonesty not restricted to the conduct identified in the matter complained of, exposes himself or herself to a defence of justification not restricted to the specific conduct. He cited Maisel. He then observed that, if the claimant’s submissions in Jones were accepted, no plaintiff could escape that fate by pleading a narrow imputation. A defendant could plead, by way of contextual truth, an imputation in broad, general, terms, and prove the truth of it by proving facts well outside what had been published.

48 Spigelman CJ quoted Hunt J in Allen v John Fairfax & Sons Ltd (NSWSC, 2 December 1988, unreported) as follows:

“If the matter complained of conveys to the same ordinary reasonable reader two imputations at the same time, one of a general nature … and another of a specific nature which, even although related to the same subject matter of the general imputation, differs in substance from it, the policy behind s16 requires that the defendant be permitted to plead the former as a contextual imputation to the plaintiff's cause of action based upon the latter.”

49 At [14] the Chief Justice observed that the difficulty in that case (Jones) was that the two imputations (the plaintiff’s imputation, and the defendant’s first contextual imputation) were the same except that the plaintiff’s imputation was restricted to particular conduct – that is, in the words of Hunt J, the publication did not convey “two imputations at the same time”. It conveyed, in essence, a single imputation, of dishonesty as a broadcaster, in the particular respect pleaded by the plaintiff.

50 As I have indicated, Jones was decided under the 1974 Act. While the sense of s 16 is not different from that of s 26 of the Act, the language is slightly different. Sub-section (1) of s 16 provided that:

“Where an imputation complained of is made … 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.” (italics added)

51 Section 26 of the Act provides that 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 … that are substantially true …” (italics added)

52 I mention this only in order to note that I see no difference between “another imputation” and “one or more other imputations”, and to explain the reference in the next paragraph of the Chief Justice’s judgment which I am about to quote. It was:

“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.”

53 His Honour then said:

“17 In the present case only one factual matter [I assume this is a reference to the matter complained of] is said to constitute the basis of an imputation that [Jones] has a dishonest character. There is no suggestion that relevant conduct occurred on any other occasion. In such circumstances, in my opinion, an imputation that the person is of a particular character without express reference to that factual matter is not capable of being conveyed ‘in addition to’ an imputation which makes such reference. It is merely an alternative way of formulating the same imputation.”

54 Three paragraphs later, his Honour said:

“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 …”

He held, therefore, that the pleaded contextual imputation that the plaintiff was a dishonest broadcaster was not different from the plaintiff’s imputation that the plaintiff was a dishonest broadcaster in a specific respect, and was therefore not “another imputation” for the purposes of s 16 of the 1974 Act.

55 At least in part, this decision depended upon the context of the matter complained of. It was not merely a matter of comparing the two imputations; recourse was had to the source of the imputations, which was the same in each case.

56 Accordingly (by majority) the Court ordered that the relevant paragraphs of the defence of contextual truth be struck out.

57 On behalf of the present plaintiff it was submitted that that case is analogous to the present. The defendants, however, highlighted a significant difference between the two cases. In Jones, the contextual imputation, at the very least, significantly overlapped with that pleaded by the plaintiff and was drawn from the same parts of the matter complained of. Here, it is to be observed that the plaintiff does not complain of any imputation associating him with pornography. In the framing of the imputations, those parts of the article that associated the plaintiff with pornography have been avoided. Adapting the words of Spigelman CJ (in para [16]) to those of s 26 of the Act, the question is whether the words (of s 26) “one or more other imputations” (that is, of course, an imputation or imputations other than that on those pleaded by the plaintiff) are satisfied when contextual imputation (i) is compared with any of the plaintiff’s imputations.

58 They are. The plaintiff has not pleaded any imputation that remotely links him with pornography. The contextual imputations of pornographic activity are quite different from the imputations pleaded by the plaintiff. They are “other imputations” for the purpose of s 26.

59 The question posed by this case is precisely the same as the question posed in Jones. It is the answer to the question that is different. Because the plaintiff has steered clear of pleading any imputations of association with pornography, all of the contextual imputations pleaded by the defendants are “other imputations”.

60 The plaintiff’s case does, however, bring to light a very interesting issue in the pleading of a contextual truth defence. That issue may be explained in this way.

61 The pitfalls for a plaintiff of pleading an imputation too widely are well known (see Maisel). The more generally the imputations are pleaded, the greater the scope for the defendant to justify, and to do so by proving matters far removed from what was published. An imputation, in general terms, of dishonesty (even where the publication is confined to a specific instance of dishonesty) may be met by proof of dishonesty of a different kind. By drawing such an imputation too widely or generally, a plaintiff may create a trap for himself or herself. A plaintiff can seek to avoid creating that trap by pleading the imputation narrowly – thus making it more difficult for the defendant to justify. On the authority of Jones, a defendant cannot expand the area of misconduct by pleading a contextual imputation related to the same class of misconduct, but framed in general terms.

62 It is one thing for a plaintiff to create a trap for himself or herself, and for a defendant to take advantage of that trap. It is another thing altogether for a defendant to create a trap for the plaintiff – a trap that the plaintiff has assiduously avoided creating.

63 What this case shows is that a defendant may seek to take advantage of the Maisel principle by pleading a contextual imputation in the very general terms that a plaintiff would, for Maisel reasons, ordinarily studiously avoid, thus creating a trap for the plaintiff that the plaintiff has avoided, and opening up the area of the plaintiff’s character or conduct that may be the subject of evidence. The question is whether the law permits a defendant to do so.

64 The following illustrates the proposition.

Suppose A published of B:

“B stole a valuable painting from the Art Gallery of NSW.”

B sues, carefully avoiding the Maisel trap, pleading the imputation:

“That B stole a valuable painting from the Art Gallery of NSW.”

Could A plead, pursuant to s 26, that the publication conveyed the contextual imputation:

“That B is a thief”,


and seek to prove the truth of that by proving that B shoplifted from David Jones?

The answer to that, on the authority of Jones , is no. But that is for a very specific reason. It is because the contextual imputation pleaded overlaps significantly with the imputation pleaded by the plaintiff. It is not, within s 26, an “other imputation”. It is, in substance, nothing more than an alternative way of formulating the very imputation relied on by the plaintiff, although in more general terms, but based on exactly the same words in the matter complained of and applying those words in exactly the same way.

65 In the example given, as in Jones, the plaintiff confined the imputation pleaded to a very specific allegation of dishonesty, drawn directly from the matter complained of. The matter complained of could not be expanded to encompass other instances of dishonesty: the only dishonesty to be found in the matter complained of was that specified in the plaintiff’s imputation. A could not expand the scope of its publication in order to draw in aspects of dishonesty in B that were not encompassed in the publication.

66 What the defendants here seek to do is to expand the scope of what it originally published. Relevantly, it originally alleged that the plaintiff owned more than 20 “adult shops”, and that he had been fined in Queensland for selling certain banned items.

67 The association with pornography mentioned is confined – to the ownership of more than 20 “adult shops”, and to having been fined in Queensland for the sale of banned items. Had the plaintiff pleaded an imputation asserting an association with pornography, he no doubt would have done so in narrow terms, confining himself to what was contained in the article, and thus restricting the area of discreditable conduct available to be explored by a defence of justification; but it is for that practical, pragmatic reason that he would so confine himself. There is nothing in law that would have prevented him from pleading an imputation that he is a pornographer.

68 Equally, there is nothing that prevents the defendants doing the same thing, by way of pleading a contextual imputation.

69 By pleading contextual imputation (i), and particularising it as it has, the defendants seeks to give the broadest possible scope to what they originally published, in order to expand, correspondingly, the scope of the inquiry into the plaintiff’s conduct. They seek to prove that the plaintiff engaged in discreditable conduct well outside the confines of what it published. By pleading imputations of the most general kind, a defendant may – to use a somewhat loaded term – manipulate the proceedings to enable it to adduce evidence of misconduct going well outside anything alleged in the matter complained of.

70 The question is whether the defendants are permitted to do so. It was not submitted that there exists any discretionary basis upon which the defendants could be prevented from doing what they seek to do. I am not aware of any such discretion. Provided that an imputation is capable of being conveyed by the matter complained of, a judge has no supervisory role in its formulation (other than as to form).

71 A claim in defamation is directed to the damage done to a plaintiff’s reputation by the publication of what is published by the defendant. A contextual truth defence is equally directed to what is published by the defendant. Subject to the manner in which the plaintiff pleads his/her case, a defamation claim does not ordinarily open up a full-scale inquiry into the plaintiff’s character or conduct.

72 If the fairness of allowing contextual imputations so framed to be pleaded (and proved) were an issue, the outcome of this application may have been different. But no power to direct the manner of pleading by reference to fairness was identified and I know of no relevant power.

73 It may be that the answer lies in the determination by the tribunal of fact of the question whether the contextual imputation as pleaded was in fact conveyed. It is possible that an imputation framed so widely that it exceeds what was published would be found not to have been conveyed. It remains for the defendants to persuade the tribunal of fact that a contextual imputation framed as generally as is contextual imputation (i) is conveyed. If it is, then, in accordance with s 26, they are entitled to seek to prove that that imputation is true, by reference to facts well outside what it originally published.

74 The consequence of this decision may be significant for the parties.

75 Under the Act, all issues except damages are committed for jury determination, at the option of either party (and subject to a contrary order by the Court): s 21.

76 In this case, those issues will include:

• whether any of the imputations pleaded by the plaintiff was conveyed;
• if so, whether any of those imputations found to have been conveyed was defamatory;
• whether any of those imputations found to have been conveyed and defamatory was true;
• whether any contextual imputation pleaded by the defendants was conveyed;
• if so, whether any of those found to have been conveyed was defamatory;
• whether any of those found to have been conveyed and defamatory was true;
• whether, because of the truth of those contextual imputations found to have been true, the defamatory imputations pleaded by the plaintiff did not further harm the reputation of the plaintiff.

77 In order to prove the truth of the contextual imputations the defendants will tender evidence in accord with their particularised case. Examination of the particulars demonstrates, beyond any doubt, that evidence of those matters will be highly prejudicial to the plaintiff, probably irretrievably.

78 The jury will hear all the evidence the defendants are able to adduce to prove that the plaintiff is a pornographer. It is impossible to imagine that its members could then bring impartial and unclouded minds to the question of whether the imputations (or contextual imputations) were conveyed, and if so, whether they were defamatory.

79 But that is the way defamation proceedings were conducted for many years prior to the introduction, in 1995, of the s 7A procedure, and it is the way defamation proceedings are to be conducted under the Act.

80 For the reasons given above, I decline to strike out contextual imputation (i).

(ii) the plaintiff is a distributor of illegal hardcore pornography

81 The only challenge made to the capacity of the matter complained of to convey this contextual imputation is that it (the imputation) alleges a current (at the time of the matter complained of) and ongoing course of conduct. The imputation derives entirely from the paragraph numbered 12 in the matter complained of, as follows:

“Last year the Queensland Department of Fair Trading fined him $5000 for selling hardcore items that had been refused classification in any state.”

82 It was argued that the allegation in the matter complained of was limited to a “one off” fine in the preceding year; that there was no suggestion in the matter complained of that the conduct persisted after that or was in any way ongoing.

83 Arguments of this kind are frequently paraded before this Court. On some occasions they have merit. To put the argument in perspective, one may ask, rhetorically, how many murders does a person have to commit before being called “a murderer”; how many rapes does a person have to commit before being called “a rapist”? On the other hand, a single instance of failing to stop at a red light may not be capable of supporting an imputation that a person is (that is, has the ongoing or continuing characteristic of being) a negligent driver.

84 These are extreme examples. But they illustrate the point. It may be that a general characterisation cannot be derived from a publication alleging a specific instance of discreditable conduct. All will depend upon the context.

85 Here, I am satisfied that the assertions that the plaintiff owned more than 20 adult shops, together with the paragraph just quoted, is sufficient to conclude that the article has the capacity to convey the imputation. I decline to strike out contextual imputation (ii).

(iv) the plaintiff has engaged in conduct involving deeply offensive language

86 This imputation is said to have been conveyed, in particular, by paragraph 9 of the article. It was argued that this imputation does fall foul of the Jones test because it is merely a different way of formulating the plaintiff’s imputation 5(d) at a higher level of generality.

87 In my opinion this submission ought to be upheld. Applying the Jones test, there is nothing in the matter complained of alleging “deeply offensive language” against the plaintiff other than that in paragraph 9, and this is precisely what is attributed to the plaintiff in the plaintiff’s imputation 5(d). Contextual imputation (iv) will be struck out.

(v) the plaintiff has engaged in deeply offensive conduct

88 In correspondence between the parties, solicitors for the defendants identified paragraph 9 as the source of contextual imputation (v). (It may be that it is also derived from paragraph 8, but I put that to one side.)

89 The argument put on behalf of the plaintiff concerning contextual imputation (v) is that it is not pleaded with sufficient precision and appears to be merely a combination of the other contextual imputations and an attempt to plead a generalised imputation in order to introduce irrelevant material into the proceedings.

90 It was also submitted that the imputation as drafted suffers from “a form defect” in that the conduct alleged is unclear. I do not accept either complaint. An imputation may be pleaded at a high level of generality where it suits the pleader’s purposes to do so – at the risks I have mentioned above.

91 For reasons I have given earlier (concerning the relative roles of a judge dealing with interlocutory applications and that of the trial judge), I discount the argument concerning irrelevant material being introduced into the proceeding. I reject the submission that the imputation is pleaded with insufficient precision; the precision required in the pleading of an imputation depends largely, if not entirely, upon the content of what is published. I will not strike out contextual imputation (v).

4 and 5: refuse leave to defendants to rely on particulars of truth of contextual imputations 8(a)(ii), (iii) and (iv)

(Contextual imputation (ii) is that the plaintiff is a distributor of illegal hardcore pornography;

Contextual imputation (iii) is that the plaintiff has been fined for distributing illegal hardcore pornography)

92 In paragraph 33 of written submissions filed on his behalf, the plaintiff makes the following admission:

“The plaintiff admits that on 27 August 2008 he was fined $5,000 by the Queensland Office of Fair Trading for selling DVDs classified as X18+ and one film classified as RC (refused classification) and magazines classified as Category 2 Restricted – said items being banned at the time from sale in Queensland.”

93 This is an admission, in precise terms, of the first particular of truth subscribed to contextual imputation (ii).

94 In paragraph 34 the plaintiff makes a further admission, that at the time of publication of the matter complained of, he owned or controlled or had an interest in the business known as Everything Adult, which comprises a series of adult shops throughout Australia.

95 The argument put on behalf of the plaintiff was that, because of the admissions, the particulars subscribed to prove the truth of contextual imputations (ii) and (iii) do not relate to a fact in issue and therefore evidence of them would be inadmissible. Reliance was placed upon ss 55 and 56 of the Evidence Act 1995. Section 56(2) provides that:

“Evidence that is not relevant in the proceeding is not admissible.”

96 Section 55(1) defines relevant evidence in the following way:

“The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

97 It was argued that, because of these admissions, the plaintiff’s pornographic activities and convictions are no longer “facts in issue”. If this is so, the argument ran, evidence of those facts is inadmissible by s 55(2). The submission must be rejected.

98 Firstly, once again, the argument trespasses upon the role of the trial judge, whose function it is to determine questions of admissibility. The mere circumstance that a fact has been admitted does not, in my view, carry the necessary consequence that evidence of the fact is inadmissible. Certainly, the proposition is not so unarguably clear as to justify striking out the pleading, and so, potentially, tying the hands of the trial judge.

99 It is possible that, as was acknowledged in Hayson, proposed evidence could be so clearly inadmissible as to warrant the striking out of a pleading to which it would be relevant; that is certainly not this case.

100 In any event, the particulars sought to be excluded go well beyond the admissions proffered.

101 I will not refuse leave to the defendants to amend the defence by the addition of the particulars here challenged.

(Contextual imputation (iv) is that the plaintiff has engaged in conduct involving deeply offensive language)

102 The particulars of truth subscribed to this imputation are that:

• the plaintiff has appeared in and/or directed pornographic movies containing deeply offensive language;
• the plaintiff, through his companies, has distributed pornographic movies, each of which contains deeply offensive language.

103 In each case a list of the titles of films or movies is given. The argument was that the particulars are irrelevant to the imputation “in its context in the matter complained of” and therefore should be struck out.

104 The introduction of the concept of relevance again immediately conjures issues of the kind to which I have already referred, concerning the respective roles of a judge determining interlocutory issues, and of the trial judge.

105 That is sufficient to cause me to decline to take the course sought on behalf of the plaintiff.

106 Of course, it will be a question for the jury (if there is a jury) whether the matter complained of in fact conveys the contextual imputation. No issue has been raised as to the capacity of the matter complained of to do so, but it remains a question whether it in fact does so. If it is found that it does convey an imputation of such generality, then I see no reason why evidence of the matters particularised ought not be given. But that, of course, is a matter for the trial judge, who will be much better informed by the time the matter comes on for trial.

107 I will not, on this basis, refuse leave to the defendants to file the proposed amended defence.

6: particulars of bad reputation

108 As indicated above, the defendants have pleaded that damages ought be mitigated by reason of a number of circumstances, one of which is the bad reputation of the plaintiff. Nine particulars of his bad reputation were given. Initially, the plaintiff sought to have all excluded. After consideration, only one was challenged. That was:

“(ix) The finding by Hargrave J in the Supreme Court of Victoria proceedings First East Auction Holdings Pty Ltd v Mimi Ange … that on the probabilities the Plaintiff gave false evidence in the said proceeding.”

109 The argument advanced with the respect to this particular is that evidence of bad reputation is required to have some relevance to that aspect of the plaintiff’s character affected by the imputations – the evidence must fall into a “relevant sector”. Unfortunately, the argument did not descend to identification of anything that was said by the named judge, or the nature of the proceedings in which it is said to have been made.

110 I have no idea what finding (if any) Hargrave J is said to have made. That makes the plaintiff’s argument on sector difficult to sustain. There simply is no material on which to make a determination.

111 Further, reliance was placed upon s 91 of the Evidence Act, which renders inadmissible evidence of a decision or of a finding of fact in an Australian or overseas proceeding in order to prove the existence of a fact that was in issue in that proceeding.

112 In other words, a finding of fact by a judge in one case cannot be used to prove the existence of that fact in another case. It seems that the fact in issue to which the finding is said to be relevant concerns the plaintiff’s reputation.

113 Again, because the judgment was not produced, it is impossible to know what finding was made by Hargrave J. It is difficult to imagine, however, that it was a finding that the plaintiff was of bad reputation. Counsel argued that it was a finding as to credit; even if that is correct, and it is by no means certain that it was, that is not the fact sought to be proved in the present case.

114 The argument concerning the particular of bad reputation also fails.

115 The only order I make is that:

(i) Contextual imputation (iv) is struck out.

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