Badri v Harbour Radio Pty Ltd

[2018] NSWDC 314

District Court

New South Wales

Medium Neutral Citation:

Badri v Harbour Radio Pty Ltd [2018] NSWDC 314

Hearing dates:

23 August 2018

Date of orders:

23 August 2018

Decision date:

09 October 2018

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

In relation to the first matter complained of (Radio 2GB Broadcast – 5 October 2017)
(1) Imputations 3(a) and 3(h) are reasonably capable of being conveyed and reject the challenge to form.
(2) Objections to imputation 3(b) are withdrawn.
(3) In relation to imputation 3(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.
(4) Imputations 3(d) and 3(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.
(5) Imputations 3(e) and 3(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.
(6) Imputations 3(i), 3(r) and 4(g) struck out with leave to replead replacing the word “causing”.
(7) Imputations 3(j), 3(s) and 4(h) struck out with leave to replead an act or condition.
(8) In relation to imputation 3(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being conveyed and the challenge to form is rejected.
(9) Imputations 3(l), 4(a), 3(m) and 4(b) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 3(m)).
(10) Imputations 3(n) and 3(p) are to be pleaded as fall backs.
(11) Imputations 3(o) and 4(d) withdrawn and struck out.
(12) Objections to imputations 3(q) and 4(f) are withdrawn; imputations 3(q) and 4(f) are reasonably capable of being conveyed.
(13) Imputations 3(t) and 4(i) are struck out with leave to replead.

 

In relation to the second matter complained of (Radio 4BC Broadcast – 5 October 2017)
(14) Imputations 6(a) and 6(h) are reasonably capable of being conveyed and reject the challenge to form.
(15) Objections to imputation 6(b) are withdrawn.
(16) In relation to imputation 6(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.
(17) Imputations 6(d) and 6(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.
(18) Imputations 6(e) and 6(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.
(19) Imputations 6(i), 6(r) and 7(g) struck out with leave to replead replacing the word “causing”.
(20) Imputations 6(j), 6(s) and 7(h) struck out with leave to replead an act or condition.
(21) In relation to imputation 6(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being and the challenge to form is rejected.
(22) Imputations 6(l), 7(a), 6(m) and 7(b) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 6(m)).
(23) Imputations 6(n) and 6(p) are to be pleaded as fall backs.
(24) Imputations 6(o) and 7(d) withdrawn and struck out.
(25) Objections to imputations 6(q) and 7(f) are withdrawn; imputations 6(q) and 7(f) are reasonably capable of being conveyed.
(26) Imputations 6(t) and 7(i) are struck out with leave to replead.
(27) These orders are subject to provision of particulars identifying the persons listening to each of the identically broadcast publications on Radio 2GB and Radio 4BC.

 

In relation to the third matter complained of (2GB.com Website)
(28) Imputations 9(a) and 9(h) are reasonably capable of being conveyed and reject the challenge to form.
(29) Objections to imputation 9(b) are withdrawn.
(30) In relation to imputation 9(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.
(31) Imputations 9(d) and 9(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.
(32) Imputations 9(e) and 9(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.
(33) Imputations 9(i) and 9(r) struck out with leave to replead replacing the word “causing”.
(34) Imputations 9(j) and 9(s) struck out with leave to replead an act or condition.
(35) In relation to imputation 9(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being and the challenge to form is rejected.
(36) Imputations 9(l) and 9(m) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 9(m)).
(37) Imputations 9(n) and 9(p) are to be pleaded as fall backs.
(38) Imputation 9(o) withdrawn and struck out.
(39) Objections to imputation 9(q) are withdrawn; imputation 9(q) is reasonably capable of being conveyed.
(40) Imputation 9(t) is struck out with leave to replead.
(41) These orders are subject to provision of particulars identifying the persons listening to each of the identically broadcast publications on Radio 2GB and Radio 4BC.

 

In relation to the fourth matter complained of (4BC.com Website)
(42) Imputations 11(a) and 11(h) are reasonably capable of being conveyed and reject the challenge to form.
(43) Objections to imputation 11(b) are withdrawn.
(44) In relation to imputation 11(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.
(45) Imputations 11(d) and 11(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.
(46) Imputations 11(e) and 11(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.
(47) Imputations 11(i) and 11(r) struck out with leave to replead replacing the word “causing”.
(48) Imputations 11(j) and 11(s) struck out with leave to replead an act or condition.
(49) In relation to imputation 11(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being and the challenge to form is rejected.
(50) Imputations 11(l) and 11(m) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 11(m)).
(51) Imputations 11(n) and 11(p) are to be pleaded as fall backs.
(52) Imputation 11(o) withdrawn and struck out.
(53) Objections to imputation 11(q) are withdrawn; imputation 9(q) is reasonably capable of being conveyed.
(54) Imputation 11(t) is struck out with leave to replead.
(55) These orders are subject to provision of particulars identifying the persons listening to each of the identically broadcast publications on Radio 2GB and Radio 4BC.

 

In relation to the fifth matter complained of (Radio 2GB Broadcast – 6 October 2017)
(56) Challenges to form and capacity of imputations 13(a) and 13(f) withdrawn; imputations 13(a) and 13(f) are reasonably capable of being conveyed.
(57) Imputations 13(g) and 13(h) are to be repleaded as fall backs; imputations 13(g) and 13(h) are reasonably capable of being conveyed.
(58) Imputation 13(n) is struck out with leave to replead
(59) Grant leave to the plaintiff to amend imputation 13(l) to replace “will” with “should”; this imputation is reasonably capable of being conveyed.
(60) Imputation 13(m) is struck out with leave to replead.
(61) Imputation 13(o) is struck out as not reasonably capable of being conveyed.
(62) Imputation 13(q) is reasonably capable of being conveyed.
(63) Imputations 13(s) and 13(t) are struck out with leave to replead.
(64) Imputation 13(u) is struck out as not reasonably capable of being conveyed.
(65) Imputations 14(a), 14(c) and 14(d) struck out.
(66) Imputation 14(b) is reasonably capable of being conveyed

 

In relation to the sixth matter complained of (Radio 4BC Broadcast – 6 October 2017)
(67) Challenges to form and capacity of imputations 16(a) and 16(f) withdrawn; imputations 16(a) and 16(f) are reasonably capable of being conveyed.
(68) Imputations 16(g) and 16(h) are to be repleaded as fall backs; imputations 16(g) and 16(h) are reasonably capable of being conveyed.
(69) Imputation 16(n) is struck out with leave to replead
(70) Grant leave to the plaintiff to amend imputation 16(l) to replace “will” with “should”; this imputation is reasonably capable of being conveyed.
(71) Imputation 16(m) is struck out with leave to replead.
(72) Imputation 16(o) is struck out as not reasonably capable of being conveyed.
(73) Imputation 16(q) is reasonably capable of being conveyed.
(74) Imputations 16(s) and 16(t) are struck out with leave to replead.
(75) Imputation 16(u) is struck out as not reasonably capable of being conveyed.
(76) Imputations 17(a), 17(c) and 17(d) struck out.
(77) Imputation 17(b) is reasonably capable of being conveyed

 Procedural orders generally
(78) The plaintiff is to respond to the defendant’s request for particulars dated 2 August 2018 in 14 days.
(79) The defendant is to notify the plaintiff 14 days thereafter any continued objections in relation to the identification of the second plaintiff, and of those who heard each of the simultaneous broadcasts.
(80) The plaintiff’s proposed Further Amended Statement of Claim to be served in 14 days.
(81) Matter stood over to the Defamation List on Thursday 27 September 2018 for further directions.
(82) Costs reserved.

Catchwords:

TORT – defamation – imputations – form and capacity

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 28.2

Cases Cited:

Adeang v The Australian Broadcasting Corporation (No 2) [2016] FCA 1599
Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Amalgamated Television Services Pty Ltd v Marsden (2003) 57 NSWLR 338
Berezovsky v Forbes Inc [2001] EWCA Civ 1251; [2001] EMLR 45
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Dunsec Pty Ltd v Nationwide News Pty Ltd [2000] NSWCA 155
Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273
Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682
Hoffman v Challis [2016] NSWSC 142
John Fairfax & Sons Ltd v Foord (1988) NSWLR 706
Lim v TVW Enterprises Ltd [2002] WASC 214
Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213
Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419
Medford v Nationwide News Pty Ltd [2007] WASC 52
Noble v Phillips [2018] NSWSC 25
Packer v John Fairfax Publications Pty Ltd [2006] NSWSC 940
Pickering & Ors v Publishing and Broadcasting Pty Ltd (Supreme Court of NSW, 21 June 1996)
Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95
Schlaepfer v Australian Securities and Investment Commission [2017] NSWSC 1656
Singleton v Ffrench (1986) 5 NSWLR 425
Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980)
Toben v Milne [2014] NSWCA 200
Trkulja v Google LLC (2018) 356 ALR 178
Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273
Wagner v Harbour Radio Pty Ltd [2018] QSC 201
Waller v Nationwide News Pty Ltd [2011] NSWSC 611
Waterhouse v David Syme & Co Ltd [2000] NSWSC 817
Young v Munro (Supreme Court of New South Wales, Levine J, 12 May 1995)

Category:

Procedural and other rulings

Parties:

First Plaintiff: Christina Badri
Second Plaintiff: Eliase Dib
Defendant: Harbour Radio Pty Limited

Representation:

Counsel:
Plaintiffs: Mr R Rasmussen
Defendant: Ms M Cowden

  Solicitors:
Plaintiffs: Turner Freeman
Defendant: Banki Haddock Fiora

File Number(s):

2018/71910

Publication restriction:

None

Judgment

1. These are my reasons for rulings in relation to capacity (as a separate trial) pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) and in relation to form pursuant to UCPR r 14.28 made in the course of the hearing of the defendant’s application for these rulings.

2. The text of each of the matters complained of is set out in Annexure A to this judgment.

The relevant legal principles

3. It is customary in applications for rulings of this kind for the relevant principles of law to be set out.

4. Those principles have been the subject of recent and careful scrutiny in Trkulja v Google LLC (2018) 356 ALR 178, where the High Court (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ) took the opportunity to set out the correct approach to take. Their Honours stated (at [30]-[32]):

“30. The question of whether words or images complained of are capable of conveying a pleaded defamatory imputation is a question of law which permits of only one correct answer. It is, however, a question about which reasonable minds may sometimes differ, and, consequently, it is only ever with great caution that a defamation pleading should be disallowed as incapable of bearing a defamatory imputation. The potential for difference about the capacity of matters to convey different meanings is an equally strong reason for declining to set aside a proceeding on the basis that an impugned publication is incapable of bearing the defamatory imputation alleged. And it is to be remembered that on an application for summary dismissal such as this, the plaintiff's case as to the capacity of the publications to defame is to be taken at its highest.

31. The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd, “[s]ome are unusually suspicious and some are unusually naïve”. So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.

32. As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc, that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs”, but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, “[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject”.” (Footnotes omitted)

5. The key phrase in the reasoning of the High Court is the statement that “[t]he potential for difference about the capacity of matters to convey different meanings” was “an equally strong reason” for exercising caution, as well as the restraint generally exercised in any application for summary dismissal.

6. These observations, coupled with the High Court preferring to return to the test in Berezovsky v Forbes Inc [2001] EWCA Civ 1251; [2001] EMLR 45 at 1040 [16] as opposed to the need for “precision” referred to in appellate judgments such as Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 at [11], [21] – [24] (referring to “confusion” caused by assertedly ambiguous imputations), are argued by Mr Rasmussen, counsel for the plaintiffs, to take the test one step even further than the previous “generosity not parsimony” test articulated by the Court of Appeal in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227. What the High Court is in fact saying is that there is no “right” or “wrong” imputations, waiting there to be discovered by the appropriate exercise of ingenuity and careful pleading, but that there is a potential for difference about the capacity of matters to convey different meanings, and that a wide degree of latitude should be granted as a result.

7. In those circumstances, where a plaintiff puts forward the meanings which the plaintiff contends, it will only be in clear cases that an imputation will be struck out. In carrying out that exercise, as the High Court goes on to note at [32], that involves a degree of loose thinking and the drawing of inferences as to meanings which a lawyer (such as counsel for the defendant) would argue are not there.

8. These statements of principle are of particular relevance in this application, for an additional reason. The matters complained of are radio broadcasts of more than usual informality, of the kind identified by Flanagan J in Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [34], where his Honour set out the attributes and characteristics of the ordinary reasonable listener as follows:

“[34] The relevant principles, including the attributes and characteristics of the ordinary reasonable listener, were identified by Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden as follows:

(a) the ordinary reasonable reader is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for a scandal;

(b) that person does not live in an ivory tower but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs;

(c) the mode or manner of publication is a material matter in determining whether the imputation is conveyed;

(d) the more sensational a publication, the less likely it is that the ordinary reasonable person will read it with the degree of analytical care which may otherwise have been given to a less sensational publication;

(e) the ordinary reasonable person considering such a publication is understandably prone to engage in a certain amount of loose thinking;

(f) a wide degree of latitude is given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual;

(g) these considerations, and more, apply to matter published in a transient form, particularly in the electronic media; the reader of a written document has the opportunity to consider or to re-read the whole document at leisure and to check back on something, and in doing so change the first impression, but the listener or viewer has no such opportunity; and

(h) the ordinary listener must be assumed to have heard and seen the whole of the program, but he or she may not have devoted the same degree of concentration to each part of the program as would have been given to a written article — “particularly, I would say, where it is the radio” — and may have missed the significance of the existence, early in a program, of a qualification of a statement made later in the same material.”

9. While the test for capacity at trial is different to the threshold issue, the decision referred to by Flanagan J (Amalgamated Television Services Pty Ltd v Marsden (2003) 57 NSWLR 338) was not; the caution expressed by Flanagan J operates at an even lower level for applications such as the present, as Mason P noted in Dunsec Pty Ltd v Nationwide News Pty Ltd [2000] NSWCA 155). That is particularly the case where the commentator employs language which is sensationalist or pregnant with insinuation, as this is an invitation to listeners to adopt a suspicious approach.

10. In approaching the determination of the issues in the separate trial pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW), I have adopted and applied the test set out by the High Court in Trkulja v Google LLC.

Challenges to the form of imputations

11. In relation to issues of form, I have adopted a similarly cautious approach. This is not new law but has in fact always been the same since Gleeson CJ set out in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137A the following observation:

“The requirement that a plaintiff must “specify” the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. In John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706, this Court approved of Hunt J's leaving to the jury an imputation that the plaintiff was a criminal associate of drug dealers. No one suggested that it was necessary to identify with particularity the crime or crimes alleged to have been committed by the plaintiff, even though it is always theoretically possible to be more specific about an allegation that a person is a criminal.”

12. This decision in turn rejected the challenge to the observations by Hutley JA in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 688B, where his Honour stated that there were no “forms of imputations”.

13. It would be fair to say that there appears to be a developing theme in appellate jurisprudence that appellate courts are concerned about the degree to which the “ordinary reasonable reader” has become the “ordinary reasonable lawyer” and expects the court hearing such an application to apply generosity to the form of imputations pleaded by the plaintiff. This is nothing new. In Medford v Nationwide News Pty Ltd [2007] WASC 52 at [20]-[25], Newnes M observed:

“[20] In Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, Gleeson CJ, McHugh, Gummow and Heydon JJ at [6] referred with approval to Jones v Skelton (supra) and the judgments of Lord Reid and Lord Devlin in Lewis v Daily Telegraph Ltd (supra).

[21] The meaning that the ordinary person will attribute to words will often be a first impression. As such, when attempting to discern the meaning conveyed by words courts should avoid subjecting the words to an “over meticulous scrutiny”: Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224 at 257. In Lewis v Daily Telegraph Ltd (supra), Lord Reid observed (at 260) that the meaning attributed to words “must be a matter of impression” and Lord Morris (at 266) commented that it should not rest “upon any technical process of analysis or construction, nor upon a process of analysis or construction, nor upon a process of critical reading”.

[22] The meaning a reader gives to a newspaper article may be affected by matters such as the order in which things are dealt with, the language employed, the emphasis which is given to different aspects of it and the headlines which are used: John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 per McHugh J at [26], Callinan J (with whom Gleeson CJ agreed) at [187]. It is therefore necessary to approach the exercise of determining whether the imputations are arguably capable of being conveyed with appropriate circumspection.

[23] In terms of form, what must be clear from the pleading is the meaning the plaintiff contends was conveyed to a reasonable reader by the words complained of. That is, an imputation must specify what the plaintiff claims was “the precise act or condition asserted of, or attributed to” the plaintiff: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 and Taylor v Jecks (supra) at 319.

[24] It is self-evident that the proper pleading of imputations in a defamation action is a matter of importance in ensuring a fair trial of the action. As Brennan CJ and McHugh J observed in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 531–532, where the plaintiff pleads a false innuendo the plaintiff gives a shape and focus to the cause of action.

[25] But that is not to justify excessive zeal by defendants in pursuing the refinement of the pleaded imputations. In Buckeridge v Walter [2006] WASCA 22, the Court of Appeal (per Steytler P at [4], per Pullin JA at [23]) endorsed the comments of Kirby J in Favell v Queensland Newspapers Pty Ltd (supra), to the effect that excessive refinement of pleading issues is to be discouraged and courts should discourage, or minimise, the impediment to a fair trial presented by the process of “trial by interlocutory ordeal”, which is especially prevalent in defamation proceedings.”

Imputations concerning the words “illegal” and “unlawful”

14. Most of the objections to form set out in the lengthy list of challenges object to the use of the words “illegal” and “unlawful” on three bases:

1. The use of the word is ambiguous, in much the same way that the term “breach of trust” was considered ambiguous in Singleton v Ffrench (1986) 5 NSWLR 425;

2. The imputation impermissibly uses the language of the matter complained of, where the word “illegal” is used repeatedly (for example, in the first matter complained of Mr Hadley uses the phrase “illegal dumping” six times and the phrase “illegal tip” once); and

3. The conduct involved in terms of “illegal” activity must be specified.

15. Three additional issues of law arise:

1. The entitlement of a plaintiff to use words such as “unlawfully” or “illegal” in imputations;

2. The asserted need for precision of identification of the first and second plaintiffs; and

3. Whether imputations pleaded as an act and a condition are capable of differing in substance.

The issue of ambiguity

16. This is yet another challenge to the form of the imputations pleaded, on the basis that words in the matter complained of are asserted to be ambiguous. Applications of this kind are generally made on the following bases:

1. Words are asserted to be ambiguous where the level of meaning is claimed to be extremely general (in the present case, “unlawful” and “illegal” are two examples). While there are words with a genuine double meaning (such as “corrupt”, which can mean different kinds of dishonest behaviour: John Fairfax & Sons Ltd v Foord (1988) NSWLR 706), it should not be overlooked that the Court of Appeal made no objection in John Fairfax & Sons Ltd v Foord to the use of the term “criminal associate”.

2. The word used is asserted to be a “weasel word”: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 163; Noble v Phillips [2018] NSWSC 25.

3. There is an alternative specialist legal meaning (such as “breach of trust” in Singleton v Ffrench, a challenge brought here in relation to the words “unlawful” and “illegal”.

4. The word used is slang: Young v Munro (Supreme Court of New South Wales, Levine J, 12 May 1995). The traditional approach has been to reject slang on the basis that it is “unsuited to the formality required when pleading legal documents” (Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20 at [27] per Simpson J, citing Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 at [44], concerning the words “lucrative racket”.) However, decisions as to what is slang tend to differ from one judge to the other.

5. The imputation uses the words of the matter complained of: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255; Waller v Nationwide News Pty Ltd [2011] NSWSC 611.

6. The imputation uses words which are a mere rhetorical flourish which do not add to the sting of the imputation and are thus impermissible: Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419 at 420; Waterhouse v David Syme & Co Ltd [2000] NSWSC 817 at [22].

17. Contrary to the submissions of the defendant, imputations containing the words “unlawful” and “illegal” (and, for that matter, “criminal”) have been permitted to be used in imputations without objection.

18. This includes decisions where the word challenged is actually used in the text of the matter complained of. The actual words of the matter complained of may be used where their meaning is clear: Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 at [29]; Waller v Nationwide News Pty Ltd at [18].

19. The only challenge I could find to use of the word “unlawful” occurred in Medford v Nationwide News Pty Ltd, where the imputations pleaded were as follows:

“[3] The plaintiff pleads that the article conveyed imputations that he:

(a) is a notoriously dishonest businessman by reason of having dishonestly swindled moneys from investors on a number of past occasions;

(b) is engaging in unlawful conduct by causing two of his companies to raise and manage funds without having the required ASIC licences to do so;

(c) unlawfully allowed one of his companies, Didasko Technologies Pty Ltd, to trade whilst insolvent, to the extent of rendering the plaintiff liable in the sum of approximately $3.5 million.”

20. The defendant’s submission in Medford v Nationwide News Pty Ltd challenging these imputations was similar to the defendant’s submissions here:

“[8] It was also submitted that, again, the article does not adequately distil the defamatory meaning sought to be alleged. Counsel argued that it was unclear what was meant by “unlawful conduct” and that it does not adequately distil the defamatory imputation alleged to be conveyed.”

21. Newnes M held (at [32] and [33]) that imputations in this form were permissible. The word “unlawful” is in fact so generally accepted such that it regularly features in imputations not the subject of challenge: for two recent decisions, see Schlaepfer v Australian Securities and Investment Commission [2017] NSWSC 1656 at [28] – [30] and Adeang v The Australian Broadcasting Corporation(No 2) [2016] FCA 1599 at [5] and [36] (the latter decision is perhaps better known for Rares J’s complaint that imputations arguments of this kind are “meretricious”).

22. The word “unlawful” was used in imputations challenged as ambiguous in form in Hoffman v Challis [2016] NSWSC 142. The imputations pleaded were as follows:

“[8] The imputations specified in respect of the third matter complained of are:

(a) The plaintiff caused DHR to engage in an unlawful practice of withholding employee wages and using the money to fund DHR’s business;

(b) The plaintiff condones DHR’s unlawful practice of withholding employee wages and using the money to fund DHR’s business;

(c) The plaintiff exploits employees by causing DHR to engage in a practice of terminating employees so as to avoid paying them earned commissions;

(d) The plaintiff is an unscrupulous employer in that he connived a the unlawful termination of DHR employee in order to avoid paying her commissions she was owed and used the unpaid commissions to fund his private jet.”

23. McCallum J was not directed to any challenge to the word “unlawful” and this word was not struck out. I also note that the phrase “unlawfully use the market power of Publishing and Broadcasting Limited to wipe out (eliminate) a competitor” was permitted by Simpson J in Packer v John Fairfax Publications Pty Ltd [2006] NSWSC 940.

24. The same is the case with the use of the word “illegal”, which gains extra traction from the fact that the word is frequently used by Mr Hadley to describe the conduct of the plaintiffs. The implausibility of a defendant objecting to words used in the matter complained of on the basis that these words are ambiguous has been the subject of adverse appellate comment since Hutley JA stated, in Hepburn v TCN Channel Nine Pty Ltd at 688:

“Though a defendant is entitled to know the case he has to meet, it is strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words it has used, so that it is embarrassed in justifying it. This must mean it does not know what it is alleged an ordinary reasonable hearer would make of it.”

25. All of these issues (including the use of the word “illegal” were explained by Levine J in Pickering & Ors v Publishing and Broadcasting Pty Ltd (Supreme Court of NSW, 21 June 1996) in clear and succinct terms which still hold good today, and which have been referred to as such in other jurisdictions (see, for example Lim v TVW Enterprises Ltd [2002] WASC 214):

“This application…gives rise to matters of principle and concept that often arise in this List. …

The other two imputations are identical in wording and I will treat them as one and it is: “That the first and second plaintiffs were involved in illegal business operations.” Objection is taken to the form of that imputation on the basis that by reason of the use of the words “involved” and “illegal” the imputation is so vague, so imprecise and is ambiguous to the point of being embarrassing to warrant it being struck out….

This application is one in which I find to be appropriate to state a view that I have stated before: that even with respect to questions of form, as distinct from questions of capacity, there are cases where it is appropriate to have regard to the nature, wording and quality of the publication upon which the pleader relies as giving rise to the imputation.

In Young and Ors v Munro and Anor, (unreported, 12 May 1995), I had occasion to deal with an imputation in the following terms, amongst other imputations: “The second plaintiff was a con man running a racket while he was a convicted criminal on work release from gaol.”

In relation to that imputation and the programme that was said to give rise to it I said at 11 and 12:

“I would venture to suggest with the utmost respect that it defies common sense (acknowledging however that the law from time to time may be seen to do so) to suggest that a defendant can publish the words 'con man' and 'racket'...on the one hand and yet assert that their use by the plaintiff in the mechanism created by the 1974 Act, namely the imputation, is an ambiguous, uncertain, imprecise use of the language... “.

There is a difference between the imputation to which I have referred in Young's case and that which I am considering here in that the imputation in Young adopted the language in fact used by the publisher: “con man”, “racket”, and the like.

In this case the language of the publisher has not been used but has been “defined” in lexicographical terms in that the word “scam”, a word used by the publisher, is defined in the Macquarie Dictionary as “an illegal business operation” and thus its adoption by the plaintiff. I have no doubt that had the plaintiffs pleaded that the first and second plaintiffs were involved in “scams”, they would have been confronted by an application by the defendant of the same kind as that with which the Court is now dealing and which conformably with the approach I adopted in Young would have been disposed of with dispatch.

Mr Kinsella for the plaintiff has made a submission - in this case that I find attractive in the context of the general problem I have sought to identify. It is to this effect: where the publisher has used a “big brush smear” has itself spoken in broad, wide, imprecise, if you like, terms, a plaintiff is entitled to plead an imputation that conveys not only the same substance in terms of breadth, but in the same or equivalent language in terms of breadth.

There will no doubt be some, (who in the end might prove to be right), who would form the view that my acceptance of that submission represents a departure from the orthodoxy that has attended the development of the law in relation to form of imputations over the last twenty-two years. As a matter of principle and common sense, even on the question of form, the issue of the integrity of an imputation simply cannot be examined as if the matter which is said to give rise to it does not exist. I take comfort from the remarks of the former President in Rigby v John Fairfax Group Pty Ltd and Ors, (unreported, 1 February 1996) as to the desirability of eliminating so far as is possible what I consider to be the excrescence of undue technicality in this area.

It has been submitted for the defendant that the vices in the imputation are such that at trial there could well develop the problems that the Court of Appeal had to deal with in Singleton v Ffrench (1986) 5 NSWLR 425. That there may develop such difficulties is often encapsulated in a plea by representatives for the defendant to the effect: “please give us an imputation to which we can plead a defence” (of justification or a defence of comment).

One can easily understand why a defendant would wish to say that, but to accept that a plea by a defendant for such an imputation is an appropriate device, would be a further step in that trend that has developed, contrary to good sense, contrary to commonsense and contrary to reality, which seeks to detach the matter complained of completely from the imputation.

I have referred to the difference between the imputation with which I am here concerned and the imputation with which I was concerned in Young namely that the imputation here does not reproduce the words of the matter complained of but rather a definition of them. I cannot see any difference in principle.

…I hold to be an imputation pleaded by the plaintiff in proper form.”

26. In the present case, I am satisfied that the sting of the libel is captured by the use of the word “illegal” in the matter complained of and that the court should not force a plaintiff into thesaurus based alternatives: Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 at [18].

27. As Ms Cowden accepted that challenges to the use of these words would result in the remaining imputations standing or falling accordingly, I do not propose to set out my reasons in relation to each of the imputations where these words appear, but to note the application of those principles.

The requirement for precision in relation to each of the first and second plaintiffs

28. As is noted in more detail in the section of this judgment concerning capacity, the defendant submitted that there was a requirement for precision in relation to the activities of each of the first and second plaintiff so that the defendant knows the case it has to meet as otherwise they will be unable to plead justification. Where there was no evidence capable of amounting to identification, the imputation should be struck out.

29. In Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95 the Court of Appeal warned of over-refining identification issues, adding (at [2] and [70] – [74]) that great caution was necessary in this regard.

Imputations concerning “act” and “condition”

30. Many of the imputations challenged as not differing in substance are capable of being so where one imputation asserts an act (“the plaintiff stole two chickens”) and a condition (“the plaintiff is a thief”: Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980). His Honour went on to explain that the test of the difference between the two could be satisfied, as the proof of justification could be different. His Honour’s observations as to how a court could determine whether imputations differ in substance was referred to with approval in Toben v Milne [2014] NSWCA 200.

30. Where the matter complained of is in general terms, the imputation pleaded does not require this level of specificity. In particular, the fact that the drawing of a conclusion may result in a conclusion which is contrary to what are likely to be the facts of the case is not a barrier to defamatory meaning, for the reasons set out by the Court of Appeal in Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd.

31. I now set out the imputations and my reasons for findings in relation to capacity to each of the imputations in each of the matters complained of.

The construction of the pleadings

33. There are six publications. The 5 October 2017 matter complained of was broadcast on Radio 2GB and 4BC as well as being provided by online streaming. I set out the imputations pleaded for each of these publications and formally note that my findings apply pari passu, as is reflected in the orders made.

34. The same is the case for the broadcast on 6 October 2017, which was broadcast on 2GB and 4BC, where each of these broadcasts is separately pleaded but the subject of the same imputations.

The first matter complained of (Radio 2GB Broadcast – 5 October 2017)

35. The first matter complained of is a Radio 2GB broadcast on 5 October 2017. The imputations pleaded at paragraph 3 of the Amended Statement of Claim (including portions now struck out) are as follows:

1. The First Plaintiff is an illegal dumper (lines 29, 34, 39-40, 53, 59).

2. The First Plaintiff is dishonest in that she used the name of a reputable company to cover up her illegal dumping (line 47).

3. The First Plaintiff’s dumping activities are so serious they will be investigated by the police (line 39).

4. The First Plaintiff wrongfully unlawfully obtained keys to unlock a fire trail in order to carry out her illegal dumping work (lines 62-64).

5. The First Plaintiff sent a text message asking a person to tell lies to the Hornsby Shire Council (lines 58-59).

6. The First Plaintiff tried to hide her illegal dumping activities from the Hornsby Shire Council (lines 68, 69).

7. The First Plaintiff obtained keys to a fire trail without permission so that it could be used for illegal dumping (lines 62-64).

8. The First Plaintiff unlawfully dumped dangerous waste on a fire trail (lines 25-40).

9. The First Plaintiff's actions in causing waste to be dumped on a fire trail are such that she should be charged by the Police (lines 35-40, 50).

10. The Police are looking for the First Plaintiff because they wish to charge her with a serious offence (lines 30-40, 50).

11. The First Plaintiff is attempting to conceal a serious environmental offence by asking a person to tell lies to the Hornsby Shire Council about where his waste was being dumped. (lines 29, 30, 58, 59, 68, 69)

12. The Second Plaintiff is an illegal dumper (lines 29, 34, 39-40, 53, 59).

13. The Second Plaintiff’s dumping activities will be investigated by the police (line 39).

14. The Second Plaintiff unlawfully obtained keys to unlock a fire trail in order to carry out his illegal dumping work (lines 62-64).

15. The Second Plaintiff tried to hide his illegal dumping activities from the Hornsby Shire Council (lines 68, 69).

16. The Second Plaintiff obtained keys to a fire trail without permission so that it could be used for illegal dumping (lines 62-64).

17. The Second Plaintiff unlawfully dumped dangerous waste on a fire trail (lines 25-40, 60-65).

18. The Second Plaintiff's actions in causing waste to be dumped on a fire trail are such that he should be charged by the Police (lines 35-40, 50, 60-65).

19. The Police are looking for the Second Plaintiff because they wish to charge him with a serious offence (lines 30-40, 50).

20. The Second Plaintiff is attempting to conceal a serious environmental offence by dumping waste down a fire trail (lines 29, 30, 58, 59, 68, 69).

36. The imputations pleaded to arise with the aid of extrinsic facts are pleaded at paragraph 4 of the Amended Statement of Claim as follows:

1. The Second Plaintiff is an illegal dumper (lines 29, 34, 39-40, 53, 59).

2. The Second Plaintiff’s dumping activities will be investigated by the police (line 39).

3. The Second Plaintiff unlawfully obtained keys to unlock a fire trail in order to carry out his illegal dumping work (lines 62-64).

4. The Second Plaintiff tried to hide his illegal dumping activities from the Hornsby Shire Council (lines 68, 69).

5. The Second Plaintiff obtained keys to a fire trail without permission so that it could be used for illegal dumping (lines 62-64).

6. The Second Plaintiff unlawfully dumped dangerous waste on a fire trail (lines 25-40, 60-65).

7. The Second Plaintiff's actions in causing waste to be dumped on a fire trail are such that he should be charged by the Police (lines 35-40, 50, 60-65).

8. The Police are looking for the Second Plaintiff because they wish to charge him with a serious offence (lines 30-40, 50).

9. The Second Plaintiff is attempting to conceal a serious environmental offence by dumping waste down a fire trail (lines 29, 30, 58, 59, 68, 69).

Imputations 3(a) and 3(h)

37. These imputations in relation to each of the plaintiffs arise from the same lines in the first matter complained of, namely lines 29, 34, 39-40, 53 and 59. For example, Mr Hadley tells his listeners that “it’s very clear this operation is very illegal, they’ve got something to hide”.

38. The objection to the term “illegal dumper” is objected to on the basis that it lacks the formality required of a pleading (the test set out by Simpson J in Ahmed v Harbour Radio Pty Ltd (No 2) at [27]). The defendant argues that the imputation should be specific as to each plaintiff’s alleged role, for the reasons set out in Fairfax Media Publications Pty Ltd v Alex as set out above.

39. As I have set out at some length above, I do not accept that this level of precision is necessary, given both the generality and innuendo of the remarks made by Mr Hadley, which are of the kind that Levine J in Pickering & Ors v Publishing and Broadcasting Pty Ltd described as a generalised smear. Nor do I accept that there is something about the use of this term in a legal document, which was the reason for Simpson J rejecting the phrase “lucrative racket” (and I note that Levine J in Pickering & Ors v Publishing and Broadcasting Pty Ltd acknowledges his own acceptance of the term “racket” in other decisions such as Young v Munro).

40. These imputations are in proper form and reasonably capable of being conveyed in relation to each of the plaintiffs.

Imputation 3(b)

41. This imputation was challenged on the basis that “her illegal dumping” was impermissibly imprecise. Objection to this imputation was withdrawn during argument, as is noted in the orders.

Imputation 3(c)

42. This arises from line 39. Mr Hadley tells his listeners, having described the conduct in question that he hates this kind of behaviour, namely “illegal dumping, and that is exactly what it is”.

43. As is noted in the orders, I gave the first plaintiff leave to amend to replace “serious” with “illegal”.

Imputations 3(d) and 3(g)

44. The difference is whether the first plaintiff unlawfully obtained the keys or did so without permission; this is best expressed by having these imputations pleaded as fall-backs to each other since the term “without permission” does not connote that the keys were obtained unlawfully. The imputations are pleaded to arise from lines 62-64 where Mr Hadley says that “we” need to find out how the driver of the truck got the fire trail keys to unlock the fire trail and dump the waste in that area. He goes on to suggest that when he has that information the shock and horror she was pretending at the accusation would turn into “remorse” due, I infer, to her guilt.

Imputations 3(e) and 3(f)

45. Mr Rasmussen agreed in argument that these could be pleaded as fall-back imputations, in that each could not arise at the same time. It is either the more serious or the less serious imputation which arises.

46. If pleaded as fall-back imputations, the question becomes whether the first plaintiff sent a text message asking someone to tell a lie or simply sought to hide her illegal dumping activities from the council in a more general way.

Imputation 3(i)

47. Mr Rasmussen acknowledges that the word “caused” is a weasel word and leave to replead was granted.

Imputations 3(j), 3(s) and 4(g)

48. These were struck out with leave to replead an act or condition. Mr Rasmussen has not sought reasons for these rulings.

Imputation 3(k)

49. This amounts to a restatement of a series of inferences to this effect by Mr Hadley at lines 29, 30, 58-59, where the words “tell lies” is followed by the statement that Mr Hadley has photos of the dumping “now on the website” and that the EPA “had all the screenshots and bank account details”. Leave was granted to include the words “from the EPA” in this imputation.

Imputations 3(l), 4(a), 3(m), 4(b)

50. These imputations are reasonably capable of being conveyed. I note my findings in relation to issues of form as set out above.

51. My reasons for these rulings in relation to the second plaintiff are made on the same basis as those covered by the equivalent imputations in relation to the first plaintiff.

52. I note that the ruling on imputation 3(m) has been deferred, subject to its repleading.

Imputations 3(n) and 3(p), 3(o) and 4(d)

53. Mr Rasmussen will plead imputations 3(n) and 3(p) as fallbacks.

54. Imputations 3(o) and 4(d) were withdrawn and are therefore struck out.

Imputations 3(q) and 4(f)

55. Imputation 3(q) arises from most of the broadcast but, in particular, lines 25-40 and 60-65. As to imputation 4(f), this is what the second plaintiff is described as having done by the so-called eyewitness.

56. Objections to these imputations were withdrawn and I am satisfied they are reasonably capable of being conveyed.

Imputation 3(r)

57. Mr Rasmussen acknowledges that the word “caused” is a weasel word and leave to replead was granted.

Imputations 3(t) and 4(i)

58. These were struck out with leave to replead during the argument, and reasons are not sought.

The second matter complained of (Radio 4BC Broadcast – 5 October 2017)

59. The second matter complained of is a Radio 4BC broadcast on 5 October 2017. This broadcast is in identical terms as the first matter complained of. The imputations pleaded to arise are set out at paragraph 6 of the Amended Statement of Claim as follows:

1. The First Plaintiff is an illegal dumper (lines 29, 34, 39-40, 53, 59).

2. The First Plaintiff is dishonest in that she used the name of a reputable company to cover up her illegal dumping (line 47).

3. The First Plaintiff’s dumping activities are so serious they will be investigated by the police (line 39).

4. The First Plaintiff unlawfully obtained keys to unlock a fire trail in order to carry out her illegal dumping work (lines 62-64).

5. The First Plaintiff sent a text message asking a person to tell lies to the Hornsby Shire Council (lines 58-59).

6. The First Plaintiff tried to hide her illegal dumping activities from the Hornsby Shire Council (lines 68, 69).

7. The First Plaintiff obtained keys to a fire trail without permission so that it could be used for illegal dumping (lines 62-64).

8. The First Plaintiff unlawfully dumped dangerous waste on a fire trail (lines 25-40).

9. The First Plaintiff's actions in causing waste to be dumped on a fire trail are such that she should be charged by the Police (lines 35-40, 50).

10. The Police are looking for the First Plaintiff because they wish to charge her with a serious offence (lines 30-40, 50).

11. The First Plaintiff is attempting to conceal a serious environmental offence by asking a person to tell lies to the Hornsby Shire Council about where his waste was being dumped. (lines 29, 30, 58, 59, 68, 69)

12. The Second Plaintiff is an illegal dumper (lines 29, 34, 39-40, 53, 59).

13. The Second Plaintiff’s dumping activities will be investigated by the police (line 39).

14. The Second Plaintiff unlawfully obtained keys to unlock a fire trail in order to carry out his illegal dumping work (lines 62-64).

15. The Second Plaintiff tried to hide his illegal dumping activities from the Hornsby Shire Council (lines 68, 69).

16. The Second Plaintiff obtained keys to a fire trail without permission so that it could be used for illegal dumping (lines 62-64).

17. The Second Plaintiff unlawfully dumped dangerous waste on a fire trail (lines 25-40, 60-65).

18. The Second Plaintiff's actions in causing waste to be dumped on a fire trail are such that he should be charged by the Police (lines 35-40, 50, 60-65).

19. The Police are looking for the Second Plaintiff because they wish to charge him with a serious offence (lines 30-40, 50).

20. The Second Plaintiff is attempting to conceal a serious environmental offence by dumping waste down a fire trail (lines 29, 30, 58, 59, 68, 69).

60. The imputations pleaded to arise with the aid of extrinsic facts are pleaded at paragraph 7 of the Amended Statement of Claim as follows:

1. The Second Plaintiff is an illegal dumper (lines 29, 34, 39-40, 53, 59).

2. The Second Plaintiff’s dumping activities will be investigated by the police (line 39).

3. The Second Plaintiff unlawfully obtained keys to unlock a fire trail in order to carry out his illegal dumping work (lines 62-64).

4. The Second Plaintiff tried to hide his illegal dumping activities from the Hornsby Shire Council (lines 68, 69).

5. The Second Plaintiff obtained keys to a fire trail without permission so that it could be used for illegal dumping (lines 62-64).

6. The Second Plaintiff unlawfully dumped dangerous waste on a fire trail (lines 25-40, 60-65).

7. The Second Plaintiff's actions in causing waste to be dumped on a fire trail are such that he should be charged by the Police (lines 35-40, 50, 60-65).

8. The Police are looking for the Second Plaintiff because they wish to charge him with a serious offence (lines 30-40, 50).

9. The Second Plaintiff is attempting to conceal a serious environmental offence by dumping waste down a fire trail (lines 29, 30, 58, 59, 68, 69).

61. The same rulings apply pari passu.

The third matter complained of (2GB.com Website)

62. The third matter complained of is an internet publication on the 2GB.com website. This matter complained of includes an audio recording of the first matter complained of together with six photographs depicting the plaintiffs’ truck. The imputations pleaded to arise are set out at paragraph 9 of the Amended Statement of Claim as follows:

1. The First Plaintiff is an illegal dumper (lines 29, 34, 39-40, 53, 59).

2. The First Plaintiff is dishonest in that she used the name of a reputable company to cover up her illegal dumping (line 47).

3. The First Plaintiff’s dumping activities are so serious they will be investigated by the police (line 39).

4. The First Plaintiff unlawfully obtained keys to unlock a fire trail in order to carry out her illegal dumping work (lines 62-64).

5. The First Plaintiff sent a text message asking a person to tell lies to the Hornsby Shire Council (lines 58-59).

6. The First Plaintiff tried to hide her illegal dumping activities from the Hornsby Shire Council (lines 68, 69).

7. The First Plaintiff obtained keys to a fire trail without permission so that it could be used for illegal dumping (lines 62-64).

8. The First Plaintiff unlawfully dumped dangerous waste on a fire trail (lines 25-40).

9. The First Plaintiff's actions in causing waste to be dumped on a fire trail are such that she should be charged by the Police (lines 35-40, 50).

10. The Police are looking for the First Plaintiff because they wish to charge her with a serious offence (lines 30-40, 50).

11. The First Plaintiff is attempting to conceal a serious environmental offence by asking a person to tell lies to the Hornsby Shire Council about where his waste was being dumped. (lines 29, 30, 58, 59, 68, 69)

12. The Second Plaintiff is an illegal dumper (lines 29, 34, 39-40, 53, 59).

13. The Second Plaintiff’s dumping activities will be investigated by the police (line 39).

14. The Second Plaintiff unlawfully obtained keys to unlock a fire trail in order to carry out his illegal dumping work (lines 62-64).

15. The Second Plaintiff tried to hide his illegal dumping activities from the Hornsby Shire Council (lines 68, 69).

16. The Second Plaintiff obtained keys to a fire trail without permission so that it could be used for illegal dumping (lines 62-64).

17. The Second Plaintiff unlawfully dumped dangerous waste on a fire trail (lines 25-40, 60-65).

18. The Second Plaintiff's actions in causing waste to be dumped on a fire trail are such that he should be charged by the Police (lines 35-40, 50, 60-65).

19. The Police are looking for the Second Plaintiff because they wish to charge him with a serious offence (lines 30-40, 50).

20. The Second Plaintiff is attempting to conceal a serious environmental offence by dumping waste down a fire trail (lines 29, 30, 58, 59, 68, 69).

63. The same rulings apply pari passu.

The fourth matter complained of (4BC.com Website)

64. The fourth matter complained of is an internet publication on the 4BC.com website. This matter complained of includes an audio recording of the first matter complained of together with six photographs depicting the plaintiffs’ truck. The imputations pleaded to arise are set out at paragraph 11 of the Amended Statement of Claim as follows:

1. The First Plaintiff is an illegal dumper (lines 29, 34, 39-40, 53, 59).

2. The First Plaintiff is dishonest in that she used the name of a reputable company to cover up her illegal dumping (line 47).

3. The First Plaintiff’s dumping activities are so serious they will be investigated by the police (line 39).

4. The First Plaintiff unlawfully obtained keys to unlock a fire trail in order to carry out her illegal dumping work (lines 62-64).

5. The First Plaintiff sent a text message asking a person to tell lies to the Hornsby Shire Council (lines 58-59).

6. The First Plaintiff tried to hide her illegal dumping activities from the Hornsby Shire Council (lines 68, 69).

7. The First Plaintiff obtained keys to a fire trail without permission so that it could be used for illegal dumping (lines 62-64).

8. The First Plaintiff unlawfully dumped dangerous waste on a fire trail (lines 25-40).

9. The First Plaintiff's actions in causing waste to be dumped on a fire trail are such that she should be charged by the Police (lines 35-40, 50).

10. The Police are looking for the First Plaintiff because they wish to charge her with a serious offence (lines 30-40, 50).

11. The First Plaintiff is attempting to conceal a serious environmental offence by asking a person to tell lies to the Hornsby Shire Council about where his waste was being dumped. (lines 29, 30, 58, 59, 68, 69)

12. The Second Plaintiff is an illegal dumper (lines 29, 34, 39-40, 53, 59).

13. The Second Plaintiff’s dumping activities will be investigated by the police (line 39).

14. The Second Plaintiff unlawfully obtained keys to unlock a fire trail in order to carry out his illegal dumping work (lines 62-64).

15. The Second Plaintiff tried to hide his illegal dumping activities from the Hornsby Shire Council (lines 68, 69).

16. The Second Plaintiff obtained keys to a fire trail without permission so that it could be used for illegal dumping (lines 62-64).

17. The Second Plaintiff unlawfully dumped dangerous waste on a fire trail (lines 25-40, 60-65).

18. The Second Plaintiff's actions in causing waste to be dumped on a fire trail are such that he should be charged by the Police (lines 35-40, 50, 60-65).

19. The Police are looking for the Second Plaintiff because they wish to charge him with a serious offence (lines 30-40, 50).

20. The Second Plaintiff is attempting to conceal a serious environmental offence by dumping waste down a fire trail (lines 29, 30, 58, 59, 68, 69).

65. I note my findings above conformably apply to the imputations set out.

The fifth matter complained of (Radio 2GB Broadcast – 6 October 2017)

66. The fifth matter complained of is a radio broadcast on the 2GB channel dated 6 October 2017, the following day. The imputations pleaded to arise (including struck out portions) are set out at paragraph 13 of the Amended Statement of Claim as follows:

1. The First Plaintiff made a false accusation against Langford Environmental about facilitating her illegal dumping (lines 80-92).

2. The First Plaintiff falsely assured a customer that she was dumping his material at a legal tip (lines 75-80).

3. The First Plaintiff lied to Drew Langford when she told him that the Council had said that there was no illegal dumping (lines 92-97).

4. The First Plaintiff lied to Drew Langford when she said that she had not made any accusations to him or his company (lines 99-105).

5. The First Plaintiff tried to dishonestly conceal where she was dumping sandstone by not revealing to the owner of the sandstone the address at which she was dumping it (lines 97-99).

6. The First Plaintiff falsely accused the owner of the sandstone of trying to get rid of it illegally (lines 105-110, 115).

7. The First Plaintiff is a liar (lines 94, 100).

8. The First Plaintiff is a serial liar (lines 94, 100, 102, 103, 104, 119, 120, 121).

9. The First Plaintiff is a silly woman, in that she is absurd and foolish (line 91).

10. The First Plaintiff has behaved in a reprehensible manner (line 119).

11. The First Plaintiff acted in such an improper manner with illegal dumping that she should be dealt with by the Council and the EPA (lines 106-119).

12. The First Plaintiff's conduct in dumping sandstone illegally down a fire trail has been such that she will be pursued by the Environmental Protection Authority and the Council for breaking the law (lines 106-119).

13. The First Plaintiff's conduct in dumping sandstone illegally down a fire trail, trying to conceal its location and then repeatedly lying about it is so unlawful that it should justify the EPA and the Council giving her its heaviest punishment (the entire broadcast).

14. The First Plaintiff lied by text messages (line 121).

15. The First Plaintiff has despoiled the countryside with by her illegal dumping (whole broadcast).

16. The First Plaintiff is an illegal dumper (whole broadcast).

17. The Second Plaintiff has behaved in a reprehensible manner (line 119).

18. The Second Plaintiff acted in such an improper manner with illegal dumping that he should be dealt with by the Council and the EPA (lines 106-119).

19. The Second Plaintiff's conduct in dumping sandstone illegally down a fire trail has been such that he will be pursued by the Environmental Protection Authority and the Council for breaking the law (lines 106-119).

20. The Second Plaintiff's conduct in dumping sandstone illegally down a fire trail, trying to conceal its location and then repeatedly lying about it is so unlawful that it should justify the EPA and the Council giving him its heaviest punishment (the entire broadcast).

21. The Second Plaintiff has despoiled the countryside by his illegal dumping (whole broadcast).

67. The imputations pleaded to arise with the aid of extrinsic facts are pleaded at paragraph 14 of the Amended Statement of Claim as follows:

1. The Second Plaintiff's conduct in dumping sandstone illegally down a fire trail has been such that he will be pursued by the Environmental Protection Authority and the Council for breaking the law (lines 106-119).

2. The Second Plaintiff has behaved in a reprehensible manner (line 119).

3. The Second Plaintiff's conduct in dumping sandstone illegally down a fire trail, trying to conceal its location and then repeatedly lying about it is so unlawful that it should justify the EPA and the Council giving him its heaviest punishment (the entire broadcast)

4. The Second Plaintiff has despoiled the countryside by his illegal dumping (whole broadcast).

68. This broadcast starts with the words “[n]ow what we dealt with yesterday, illegal dumping at Galston and it gets murkier and murkier and murkier”. I was not addressed as to whether this in any way included any inferences arising from the previous broadcast. It is often the case with broadcasts of this nature (see for example, Wagner v Harbour Radio Pty Ltd) that there is a series of publications which referred to each other. However, the traditional approach to such broadcasts is to consider each of them separately and that is what I have done in this regard.

69. Another point to note is the high level of informality of this publication. Examples are:

1. The first plaintiff is described as having said in a “ah, in a, um” text message, so there may be some additional meaning to the matter complained of by reason of this approach;

2. The use of the term “da-da-da-da-da” in line 113 which appears to be for emphasis;

3. The high use of slang and informal language, such as “plenty of porkies” at line 120;

4. This is described as being additional evidence of the plaintiff’s conduct drawn from an interview with Mr Langford of Langford Environmental who identifies the company CME Tippers as being the company “Christina” is from and goes on to say that “she does not work for us and never has”.

Imputations no longer the subject of contention

70. As is noted in the orders, objections to the form and capacity of imputations 13(a) and 13(f) were withdrawn and I have found that these are reasonably capable of being conveyed.

71. Imputations 13(g) and 13(h) are reasonably capable of being conveyed but must be pleaded as fall-backs.

Imputations for which no ruling is sought by the plaintiff

72. Imputations 13(m), 13(n), 13(s) and 13(t) are struck out with leave to replead.

73. I have granted leave to the plaintiff to replead imputation 13(l) as set out in the orders.

74. Imputation 13(o) and 13(u) were struck out as not being reasonably capable of being conveyed.

75. Imputations 14(a), 14(c) and 14(d) are struck out.

Imputations 13(g) and 13(h)

76. As noted above, I consider that these should be pleaded as fall-backs.

77. I agree with Mr Rasmussen’s submission that there are multiple instances of the plaintiff being called a liar and that the act (including imputation 13(n)) and condition may be pleaded separately. For these reasons, each of these imputations is reasonably capable of being conveyed.

Imputation 13(l)

78. As noted above, I have granted leave to amend to add the additional words. The imputation then differs in substance from imputation 13(m), which refers to all her illegal conduct in the form of an imputation of condition.

79. Each of imputations 13(l) and 13(m) is reasonably capable of being conveyed.

Imputation 13(q)

80. The defendant submits that the second plaintiff is not identified as behaving in a reprehensible manner.

81. On a capacity basis, this challenge must fail. The second plaintiff’s whole conduct is portrayed as dishonest and illegal.

82. This imputation is reasonably capable of being conveyed.

Imputation 14(b)

83. The objection to this imputation was couched in the same terms as that to imputation 13(q), in that the second plaintiff was not identified as behaving in a reprehensible manner despite all of the conduct sheeted home to him in the course of the broadcast in terms of his participating in illegal dumping on a fire trail. That objection must fail for the same reasons.

84. This imputation is reasonably capable of being conveyed.

The sixth matter complained of (Radio 4BC Broadcast – 6 October 2017)

85. The sixth matter complained of is a radio broadcast on the 4BC channel dated 6 October 2017. The imputations pleaded to arise are set out at paragraph 16 of the Amended Statement of Claim as follows:

1. The First Plaintiff made a false accusation against Langford Environmental about facilitating her illegal dumping. (lines 80-92).

2. The First Plaintiff falsely assured a customer that she was dumping his material at a legal tip (lines 75-80).

3. The First Plaintiff lied to Drew Langford when she told him that the Council had said that there was no illegal dumping (lines 92-97).

4. The First Plaintiff lied to Drew Langford when she said that she had not made any accusations to him or his company (lines 99-105).

5. The First Plaintiff tried to dishonestly conceal where she was dumping sandstone by not revealing to the owner of the sandstone the address at which she was dumping it (lines 97-99).

6. The First Plaintiff falsely accused the owner of the sandstone of trying to get rid of it illegally (lines 105-110, 115).

7. The First Plaintiff is a liar (lines 94, 100).

8. The First Plaintiff is a serial liar (lines 94, 100, 102, 103, 104, 119, 120, 121).

9. The First Plaintiff is a silly woman, in that she is absurd and foolish (line 91).

10. The First Plaintiff has behaved in a reprehensible manner (line 119).

11. The First Plaintiff's conduct in dumping sandstone illegally down a fire trail has been such that she will be pursued by the Environmental Protection Authority and the Council for breaking the law (lines 106-119).

12. The First Plaintiff's conduct in dumping sandstone illegally down a fire trail, trying to conceal its location and then repeatedly lying about it is so unlawful that it should justify the EPA and the Council giving her its heaviest punishment (the entire broadcast)

13. The First Plaintiff lied by text messages (line 121).

14. The First Plaintiff has despoiled the countryside with by her illegal dumping (whole broadcast).

15. The First Plaintiff is an illegal dumper (whole broadcast).

16. The Second Plaintiff has behaved in a reprehensible manner (line 119).

17. The Second Plaintiff's conduct in dumping sandstone illegally down a fire trail has been such that he will be pursued by the Environmental Protection Authority and the Council for breaking the law (lines 106-119).

18. The Second Plaintiff's conduct in dumping sandstone illegally down a fire trail, trying to conceal its location and then repeatedly lying about it is so unlawful that it should justify the EPA and the Council giving him its heaviest punishment (the entire broadcast)

19. The Second Plaintiff has despoiled the countryside by his illegal dumping (whole broadcast).

86. The imputations pleaded to arise with the aid of extrinsic facts are pleaded at paragraph 17 of the Amended Statement of Claim as follows:

1. The Second Plaintiff's conduct in dumping sandstone illegally down a fire trail has been such that he will be pursued by the Environmental Protection Authority and the Council for breaking the law (lines 106-119).

2. The Second Plaintiff has behaved in a reprehensible manner (line 119).

3. The Second Plaintiff's conduct in dumping sandstone illegally down a fire trail, trying to conceal its location and then repeatedly lying about it is so unlawful that it should justify the EPA and the Council giving him its heaviest punishment (the entire broadcast)

4. The Second Plaintiff has despoiled the countryside by his illegal dumping (whole broadcast).

87. I note my findings set out above conformably apply to this publication as well.

Costs

88. I reserved the issue of costs. I note, however, that the plaintiffs were successful in the majority of the rulings, and that a number of the objections taken by the defendant bordered close to pedantry.

Orders

89. The orders I made at the end of the hearing of this lengthy application were as follows:

In relation to the first matter complained of (Radio 2GB Broadcast – 5 October 2017)

1. Imputations 3(a) and 3(h) are reasonably capable of being conveyed and reject the challenge to form.

2. Objections to imputation 3(b) are withdrawn.

3. In relation to imputation 3(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.

4. Imputations 3(d) and 3(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.

5. Imputations 3(e) and 3(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.

6. Imputations 3(i), 3(r) and 4(g) struck out with leave to replead replacing the word “causing”.

7. Imputations 3(j), 3(s) and 4(h) struck out with leave to replead an act or condition.

8. In relation to imputation 3(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being conveyed and the challenge to form is rejected.

9. Imputations 3(l), 4(a), 3(m) and 4(b) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 3(m)).

10. Imputations 3(n) and 3(p) are to be pleaded as fall backs.

11. Imputations 3(o) and 4(d) withdrawn and struck out.

12. Objections to imputations 3(q) and 4(f) are withdrawn; imputations 3(q) and 4(f) are reasonably capable of being conveyed.

13. Imputations 3(t) and 4(i) are struck out with leave to replead.

In relation to the second matter complained of (Radio 4BC Broadcast – 5 October 2017)

1. Imputations 6(a) and 6(h) are reasonably capable of being conveyed and reject the challenge to form.

2. Objections to imputation 6(b) are withdrawn.

3. In relation to imputation 6(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.

4. Imputations 6(d) and 6(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.

5. Imputations 6(e) and 6(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.

6. Imputations 6(i), 6(r) and 7(g) struck out with leave to replead replacing the word “causing”.

7. Imputations 6(j), 6(s) and 7(h) struck out with leave to replead an act or condition.

8. In relation to imputation 6(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being and the challenge to form is rejected.

9. Imputations 6(l), 7(a), 6(m) and 7(b) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 6(m)).

10. Imputations 6(n) and 6(p) are to be pleaded as fall backs.

11. Imputations 6(o) and 7(d) withdrawn and struck out.

12. Objections to imputations 6(q) and 7(f) are withdrawn; imputations 6(q) and 7(f) are reasonably capable of being conveyed.

13. Imputations 6(t) and 7(i) are struck out with leave to replead.

14. These orders are subject to provision of particulars identifying the persons listening to each of the identically broadcast publications on Radio 2GB and Radio 4BC.

In relation to the third matter complained of (2GB.com Website)

1. Imputations 9(a) and 9(h) are reasonably capable of being conveyed and reject the challenge to form.

2. Objections to imputation 9(b) are withdrawn.

3. In relation to imputation 9(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.

4. Imputations 9(d) and 9(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.

5. Imputations 9(e) and 9(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.

6. Imputations 9(i) and 9(r) struck out with leave to replead replacing the word “causing”.

7. Imputations 9(j) and 9(s) struck out with leave to replead an act or condition.

8. In relation to imputation 9(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being and the challenge to form is rejected.

9. Imputations 9(l) and 9(m) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 9(m)).

10. Imputations 9(n) and 9(p) are to be pleaded as fall backs.

11. Imputation 9(o) withdrawn and struck out.

12. Objections to imputation 9(q) are withdrawn; imputation 9(q) is reasonably capable of being conveyed.

13. Imputation 9(t) is struck out with leave to replead.

14. These orders are subject to provision of particulars identifying the persons listening to each of the identically broadcast publications on Radio 2GB and Radio 4BC.

In relation to the fourth matter complained of (4BC.com Website)

1. Imputations 11(a) and 11(h) are reasonably capable of being conveyed and reject the challenge to form.

2. Objections to imputation 11(b) are withdrawn.

3. In relation to imputation 11(c), grant leave to the plaintiff to replace the word “serious” with “illegal” and hold that this imputation is reasonably capable of being conveyed and reject the challenge to form.

4. Imputations 11(d) and 11(g) are to be pleaded as fall backs and is thereby reasonably capable of being conveyed; challenge to form rejected.

5. Imputations 11(e) and 11(f) are to be pleaded as fall backs and are reasonably capable of being conveyed and reject the challenge to form.

6. Imputations 11(i) and 11(r) struck out with leave to replead replacing the word “causing”.

7. Imputations 11(j) and 11(s) struck out with leave to replead an act or condition.

8. In relation to imputation 11(k), grant leave to the plaintiff to amend to include the words “from the EPA” after “a serious environmental offence” and hold that in that form the imputation is reasonably capable of being and the challenge to form is rejected.

9. Imputations 11(l) and 11(m) are reasonably capable of being conveyed and reject the challenge to form (subject to identification ruling – subject to the repleading of imputation 11(m)).

10. Imputations 11(n) and 11(p) are to be pleaded as fall backs.

11. Imputation 11(o) withdrawn and struck out.

12. Objections to imputation 11(q) are withdrawn; imputation 9(q) is reasonably capable of being conveyed.

13. Imputation 11(t) is struck out with leave to replead.

14. These orders are subject to provision of particulars identifying the persons listening to each of the identically broadcast publications on Radio 2GB and Radio 4BC.

In relation to the fifth matter complained of (Radio 2GB Broadcast – 6 October 2017)

1. Challenges to form and capacity of imputations 13(a) and 13(f) withdrawn; imputations 13(a) and 13(f) are reasonably capable of being conveyed.

2. Imputations 13(g) and 13(h) are to be repleaded as fall backs; imputations 13(g) and 13(h) are reasonably capable of being conveyed.

3. Imputation 13(n) is struck out with leave to replead

4. Grant leave to the plaintiff to amend imputation 13(l) to replace “will” with “should”; this imputation is reasonably capable of being conveyed.

5. Imputation 13(m) is struck out with leave to replead.

6. Imputation 13(o) is struck out as not reasonably capable of being conveyed.

7. Imputation 13(q) is reasonably capable of being conveyed.

8. Imputations 13(s) and 13(t) are struck out with leave to replead.

9. Imputation 13(u) is struck out as not reasonably capable of being conveyed.

10. Imputations 14(a), 14(c) and 14(d) struck out.

11. Imputation 14(b) is reasonably capable of being conveyed.

In relation to the sixth matter complained of (Radio 4BC Broadcast – 6 October 2017)

1. Challenges to form and capacity of imputations 16(a) and 16(f) withdrawn; imputations 16(a) and 16(f) are reasonably capable of being conveyed.

2. Imputations 16(g) and 16(h) are to be repleaded as fall backs; imputations 16(g) and 16(h) are reasonably capable of being conveyed.

3. Imputation 16(n) is struck out with leave to replead

4. Grant leave to the plaintiff to amend imputation 16(l) to replace “will” with “should”; this imputation is reasonably capable of being conveyed.

5. Imputation 16(m) is struck out with leave to replead.

6. Imputation 16(o) is struck out as not reasonably capable of being conveyed.

7. Imputation 16(q) is reasonably capable of being conveyed.

8. Imputations 16(s) and 16(t) are struck out with leave to replead.

9. Imputation 16(u) is struck out as not reasonably capable of being conveyed.

10. Imputations 17(a), 17(c) and 17(d) struck out.

1. Imputation 17(b) is reasonably capable of being conveyed.

Procedural orders generally

1. The plaintiff is to respond to the defendant’s request for particulars dated 2 August 2018 in 14 days.

2. The defendant is to notify the plaintiff 14 days thereafter any continued objections in relation to the identification of the second plaintiff, and of those who heard each of the simultaneous broadcasts.

3. The plaintiff’s proposed Further Amended Statement of Claim to be served in 14 days.

4. Matter stood over to the Defamation List on Thursday 27 September 2018 for further directions.

5. Costs reserved.

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Decision last updated: 29 October 2018