Barrack v Wilson

[2020] NSWDC 789

District Court

New South Wales

Medium Neutral Citation:

Barrack v Wilson [2020] NSWDC 789

Hearing dates:

3 and 17 September 2020

Date of orders:

3 and 17 September 2020

Decision date:

09 November 2020

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

03 September 2020

(1) Grant leave to Plaintiff to reinstate imputation 6(c) “The plaintiff is dishonest”, which is strike out inadvertently.

(2) Grant leave to Plaintiff to plead the fourth contextual imputation as a new imputation 6(f).

(3) Plaintiff’s challenge to the form of the contextual imputation (iv) is dismissed.

(4) Subject to the condition set out in order (5), the plaintiff is granted leave to file a Further Amended Statement of Claim pleading the imputation which is currently pleaded by the defendant as the fourth contextual imputation in the Defence.

(5) The leave granted in order (4) above, is granted on the condition that leave to amend be revoked nunc pro tunc if the imputation is proved by the defendant to be substantially true, such that, at trial, the defendant may rely upon the imputation for the purpose of a defence under s. 26 of the Defamation Act 2005 (NSW).

(6) Dismiss the challenge to the first and the third contextual imputations brought on the basis that the language of these imputations is sufficiently imprecise.

(7) Dismiss the challenge to the second and third contextual imputations as not differing in substance

(8) Defer the argument as to the particulars of justification (para 24-26), pending the further submissions as follows:

(9) Plaintiff to file further submissions by 10 Sep 2020

(10) Defendant to file a reply to the further submissions by 17 September 2020.

(11) Matter listed for further argument on Thursday 17 September 2020.

(12) Costs reserved.

17 September 2020

(13) Note the concession that the particulars need to be re-pleaded to set out which apply to which contextual imputation.

(14) Plaintiff’s application to strike out particulars 31, 32, 34, 35 and 36 of the particulars of the contextual justification Defence is dismissed with costs including the cost of the adjourned hearing of 3 September 2020.

(15) Parties are to provide SMO for a further timetable for this proceeding including amendments to the contextual justification particulars following from the agreement between Mr Senior and Mr Thomas.

Catchwords:

TORT- DEFAMATION – challenge to the form of the defendant’s contextual imputations – challenge to particulars of justification – no issue of principle

Legislation Cited:

Defamation Act 2005 (NSW) s 26

Uniform Civil Procedure Rules (“UCPR”) r 14.30(3)

Cases Cited:

Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228

Allen v John Fairfax & Sons (Supreme Court of NSW, Hunt J, 2 December 1988)

Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204

Brooks v Fairfax Media Publications Pty Ltd (No 3) [2020] NSWSC 1331

Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232

Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772

Con Ange v Fairfax Media Publications Pty Ltd & Ors [2011] NSWSC 204

Crosby v Kelly [2013] FCA 1343

Domican v Pan Macmillan Australia Pty Limited [2019] FCA 1384

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR135

Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172

Fairfax Media Publications v Zeccola [2015] NSWCA 329

Feldman v Polaris Media Pty Ltd [2016] NSWSC 1889

Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152

Habib v Nationwide News Pty Ltd [2010] NSWCA 34

Hansen v Border Morning Mail Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 July 1988

Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 68

Hooper v Phipps [2020] NSWDC 134

Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453

Maisel v Financial Times Pty Ltd [1915] 3 KB 336

Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312

Miller v Associated Newspapers Ltd [2014] EWCA Civ 39

Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13

Pahuja v TCN Channel Nine Pty Ltd [2015] NSWSC 164

Piggins v Denton [2006] NSWSC 954

Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472

Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669

Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223

Texts Cited:

Professor R Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Second Edition,1994)

Category:

Procedural and other rulings

Parties:

Plaintiff: Benjamin Barrak
Defendant: Andrew Wilson

Representation:

Counsel:
Plaintiff: Mr D Thomas
Defendant: Mr T Senior

Solicitors:
Plaintiff: Cambridge Law
Defendant: Stacks Law Firm

File Number(s):

2020/60315

Judgment

The applications before the court

1. The plaintiff commenced proceedings for defamation by statement of claim filed on 24 February 2020. On 14 May 2020, I made rulings in relation to the form and capacity of the plaintiff’s imputations. A defence was filed on 13 July 2020 which pleaded, inter alia, a defence of contextual justification containing the following four imputations:

1. The plaintiff behaved disgracefully as a counsellor at a meeting of the city of Parramatta Council.

2. The plaintiff engaged in disorderly conduct as a counsellor at a meeting of the City of Parramatta Council that warranted him making an unreserved apology and in the absence of an apology his expulsion from a further meeting of the Council.

3. The plaintiff committed and active disorder as a councillor by insulting the mayor of the City of Parramatta Council at a meeting of the Council.

4. The plaintiffs conduct as a councillor of the Parramatta Council warranted his removal from Council committees.

2. The plaintiff brings the following applications:

1. Challenges to the form (but not the capacity) of the contextual imputations.

2. In the event that the fourth imputation is permitted to be pleaded, an application to appropriate this imputation as one of the plaintiffs imputations. This is consented to by the defendant, but with an important proviso.

3. An application to strike out particulars 24 to 36 of the particulars of justification, initially brought on the basis that these are “surplusage” (Ron Hodgson v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472).

3. I have set out below my reasons for rulings made on 3 September 2020, rejecting the challenge to the form of the contextual imputations and for granting leave to the plaintiff to appropriate contextual imputation (iv), but on terms. Although I have set these out at the end of the judgment, for convenience I note these here:

“(1) Grant leave to Plaintiff to reinstate imputation 6(c) “The plaintiff is dishonest”, which was struck out inadvertently.

(2) Grant leave to Plaintiff to plead the fourth contextual imputation as a new imputation 6(f).

(3) Plaintiff’s challenge to the form of the contextual imputation (iv) is dismissed.

(4) Subject to the condition set out in order (5), the plaintiff is granted leave to file a Further Amended Statement of Claim pleading the imputation which is currently pleaded by the defendant as the fourth contextual imputation in the Defence.

(5) The leave granted in order (4) above, is granted on the condition that leave to amend be revoked nunc pro tunc if the imputation is proved by the defendant to be substantially true, such that, at trial, the defendant may rely upon the imputation for the purpose of a defence under s. 26 of the Defamation Act 2005 (NSW).

(6) Dismiss the challenge to the first and the third contextual imputations brought on the basis that the language of these imputations is sufficiently imprecise.

(7) Dismiss the challenge to the second and third contextual imputations as not differing in substance

(8) Defer the argument as to the particulars of justification (para 24-26), pending the further submissions as follows:

(a) Plaintiff to file further submissions by 10 Sep 2020

(b) Defendant to file a reply to the further submissions by 17 September 2020.

(9) Matter listed for further argument on Thursday 17 September 2020.

(10) Costs reserved.”

4. The application to strike out particulars 24 to 36 had to be adjourned part-heard from 3 to 17 September 2020 to permit the parties to provide submissions as to a new issue raised by the plaintiff in the course of the application. That new issue is the entitlement of a party pleading a defence of justification to plead matters and events occurring after publication of the matter complained of. The “surplusage” in question was revealed to be a challenge to the material on the basis that a defendant is not entitled to rely upon particulars of justification which postdate the publication complained of, which Mr Senior needed to meet.

5. This required further submissions from the parties because, as Mr Thomas acknowledged during oral submissions on both 3 and 17 September 2020, he was not in a position to address as to the relevant authorities. This problem was not picked up until the end of the 3 September argument, as Mr Thomas had not provided the court with a copy of his submissions prior to the hearing conformably with Defamation Practice Note 6.

6. On 17 September 2020 I heard argument on this discrete issue and made orders as follows:

“(1) Note the concession that the particulars need to be re-pleaded to set out which apply to of the contextual imputations.

(2) Plaintiff’s application to strike out particulars 31, 32, 34, 35 and 36 of the particulars of the contextual justification Defence is dismissed with costs including the cost of the adjourned hearing of 3 September 2020.

(3) Parties are to provide SMO for a further timetable for this proceeding, including amendments to the contextual justification particulars following agreement as to these between Mr Senior and Mr Thomas.”

7. I have additionally set out below my reasons for making these further orders on 17 September 2017.

The text of the matter complained of and its context

8. The second matter complained of is an extract from a longer discussion held at the council meeting. In the course of that this discussion the defendant spoke the following words:

“I would never mention this in open chamber but Councillor Barrack has basically accused solicitor of hours of misleading the Court. There is no way you can leave him on a committee when he is abusing people like that.”

9. The imputations pleaded to arise in the natural and ordinary meaning of the matter complained of are as follows:

1. The plaintiff had conducted himself disgracefully as a Councillor by making a false allegation against a legal practitioner acting for the Council;

2. The plaintiff is dishonest.

10. There is also a plea that the second matter complained of was defamatory of the plaintiff as a true innuendo and was understood to mean the following by each of the recipients particularised in the statement of claim:

1. The plaintiff’s conduct in making a false allegation against a legal practitioner acting for the council warranted his removal from Council committees.

11. The relevant extrinsic facts are that the words comprising the second matter complained of were spoken in the course of a debate concerning a motion introduced by the defendant to remove the plaintiff from the positions he held on Council committees.

12. Two matters should be noted. The first is that the text of what was said prior to these comments is relied upon by the defendant for context in relation to the words that he spoke. It is not in dispute that all of the persons present heard the words which are set out at schedule A to the defence which are as follows:

“Ordinary Meeting of the City of Parramatta Council at 6:30pm on 25 February 2019

1 OK, we now come to minutes of the Lord Mayor. The first Minute I have…could you bring me

2 the first one up on there… which one am I doing first? That one, OK. Alright, the first of my

3 minutes, and I’am glad that you’ve come Councillor Barrak. I would ask you, do you have any

4 declarations of interest in tonight’s proceedings? Thank you. OK, the purpose of this Lord

5 Mayoral Minute is to call on Councillor Barrak to unreservedly apologise for the acts of

6 disorder at the meeting of the 20 February 2019. That Councillor Barrak be called upon to

7apologise unreservedly to the Chair and the Councillors for not complying with the direction

8 from the Chair at the Council meeting of 20 February 2019 to leave confidential papers at the

9 table, not complying with a Council resolution of 20 February 2019 to return confidential

10 papers including written notes to the Acting CEO for Council’s records prior to leaving the

11 chamber, for making derogatory comments and insulting comments on the Lord Mayor who

12 was chairing the meeting. Councillor Barrak be also called upon to apologise unreservedly

13 to Mr Darren Gardner the solicitor representing Council in a Supreme Court action, for

14 making inappropriate comments, including that Mr Gardner and his team had misrepresented

15 Council in court. Further that Councillor Barrak return any confidential

16 papers…including …still in his permission (sic), including written notes, and (d), unreservedly

17 apologise for each item noted in (a) and (b) above and note he may be expelled from this

18 meeting for a further act of disorder if he does not apologise.”

13. The above is a literal copy that sets out the somewhat disjointed manner in which this publication is recorded in the statement of claim.

14. The second matter to note is that imputation 6(c) was struck out inadvertently by the pleader of the amended statement of claim. As set out in the orders of 3 September 2020, I have granted leave for it to be restored.

The contextual imputations

15. The contextual imputations the subject of challenge are:

1. The plaintiff behaved disgracefully as a councillor at a meeting of the City of Parramatta Council.

2. The plaintiff engaged in disorderly conduct as a councillor at a meeting of the City of Parramatta Council that warranted him making an unreserved apology and in the absence of an apology his expulsion from a further meeting of the Council.

3. The plaintiff committed an act of disorder as a councillor by insulting the Mayor of the City of Parramatta Council at a meeting of the Council.

4. The plaintiff’s conduct as a councillor at the Parramatta Council warranted his removal from Council committees.

16. Conformably with my ruling of 3 September 2020, these contextual imputations are now pleaded in paragraph 17 of the defence to the amended statement of claim filed on 4 November 2020. Imputation (iv) has been struck through to reflect its status as an imputation for which I have granted leave to the plaintiff to “plead back” but on the terms set out in paragraph 5 of those orders.

The plaintiff’s submissions

17. The plaintiff’s challenges to the form of the objections, set out in paragraphs 3 – 17 of the written submissions handed up in court and developed in oral argument, may be summarised as follows:

1. Contextual imputation (i) is insufficiently precise in circumstances where, both in terms of the matter complained of as pleaded by the plaintiff and the contextual material relied upon by the defendant, the allegations made about the plaintiff are specific references to actual conduct giving rise to the quality of disgraceful behaviour, as opposed to a generalised claim. In addition, the unspecified reference to “a meeting of the city of Parramatta Council” fails to specify adequately the occasion on which the impugned conduct is alleged to have occurred. The general accusation of behaving “disgracefully” at an unspecified council meeting goes well beyond the potential meaning of the relevant matter or matters complained of: Feldman v Polaris Media Pty Ltd [2016] NSWSC 1889 at [12].

2. The second contextual imputation is bad in form for similar reasons (particularly with reference to the use of the phrase “disorderly conduct”) and does not differ in substance from the third contextual imputation.

3. The third contextual imputation is similarly bad in form (in this case, by reason of the phrases “insulting”, “an act of disorder” and “a meeting of the Council”) and does not differ in substance from the second contextual imputation.

4. The fourth contextual imputation is similarly bad in form because of the generalised reference to “conduct” and does not differ in substance from imputations 6A(a) or 11(e) (written submissions, paragraph 18). However, if the fourth contextual imputation survives the challenges to form, the plaintiff seeks leave to appropriate this imputation, notwithstanding the fact that the plaintiff remains of the view that this imputations does not differ in substance from the imputations pleaded by the plaintiff at 6A(a) and 11(e).

The defendant’s submissions

18. Mr Senior’s submissions may be summarised as follows:

1. The question of precision in relation to the form of imputations is one of degree which must be determined by the facts and circumstances of each case: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR135 at 137 (“Drummoyne”). While the defendant accepts that a contextual imputation is required to be pleaded with the same degree of specificity and precision that is required of a plaintiff, the question of whether the imputation meets that requirement is one of practical justice rather than philology. The question is whether there is likely to be confusion either at the pleading stage or at the trial (Drummoyne at 138).

2. A contextual imputation must be formulated so that the facts relied upon to establish its truth bear a reasonable relationship both to the contextual imputation itself and to the published material relied on. Whether that is the case is generally a question of fact and degree.

3. As to the first contextual imputation, a general imputation of disgraceful behaviour is permissible not only by reason of the 4 items referred to in the background material set out above, but because of the generality of the inference in the second sentence of the matter complained of, with its suggestion that further conduct of this kind is likely, based on the plaintiff’s character is revealed by the incident in question. In addition, the disgraceful behaviour is almost entirely confined to the plaintiff’s conduct at the 20 February 2019 meeting. Thirdly, there is a same level of generality (and subject matter) in the plaintiff’s submissions: cf Domican v Pan Macmillan Australia Pty Limited [2019] FCA 1384 at [23], [52] – [60]. Finally, the fact that the plaintiff has chosen to plead a narrower imputation does not preclude the defendant from pleading a contextual imputation of a Maisel nature.

Objections to the form of imputations

19. Two bases are raised:

1. The imputations lack specificity; and

2. The imputations do not differ in substance.

Specificity

20. The plaintiff challenges all four of the contextual imputations on the grounds of specificity.

21. The relevant test to apply is set out by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 as follows:

“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.”

22. In referring to “philology” as a basis for bringing such an argument, Gleeson CJ was arguably being generous. As I have noted in judgments on a number of occasions since the enactment of the uniform legislation (such as David Holmes v TCN Channel Nine Pty Ltd [2007] NSWDC 137 at [16], these applications are never brought with any reference to the principles of (or texts on) philology, and usually without even a dictionary. If there were any philological basis for challenges to form of imputations, it would surely have been discovered by now.

22. Nor does Mr Thomas refer me to decisions by other judges holding that language similar to that employed in the contextual imputations pleaded has been struck down by other judges as insufficiently precise. I am aware of decisions warning of the need for caution in relation to such rulings, such as Wigney J (in Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [26]), who described arguments of this kind as “meretricious”. In fact, the genesis for Gleeson CJ’s landmark judgment in Drummoyne was an attempt to reargue Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 68, where the Court of Appeal set aside the striking out of an imputation “the plaintiff is an abortionist” as insufficiently precise. Gleeson CJ’s observations are particularly compelling in a case such as the present, where the spontaneity and informality of the spoken word must be viewed very differently from, for example, a publication in a financial newspaper of the kind referred to in Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172. In general terms, whatever the nature of the publication, as Hutley JA observed in Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669 at 671, “there are no forms of imputations”.

23. As a result of these strictures, challenges to the form of imputations are restricted to clear cases of imprecision, such as those pleaded in Fairfax Media Publications Pty Ltd v King, where the language of the imputation gave the plaintiff no idea of the case he had to meet (at [15] and [30]).

24. Mr Thomas does not make that submission here. What Mr Thomas argues is that, because his client has chosen to plead more specific imputations despite the acknowledged availability of general imputations (contextual imputation (iv) being a good example, as the plaintiff alternatively seeks to plead this back), the defendant should not be permitted to plead general imputations, even though these are capable of arising, but on “form” grounds. This argument is contrary to the reasoning in Fairfax Media Publications Pty Ltd v King, where the Court noted at [41]:

“41 The distinction to be drawn in this case is not between an imputation that is general, on the one hand, and one that is specific, on the other hand. Rather, the relevant distinction is between an imprecise imputation and a specific imputation.”

26. The vice in the contextual imputations in Fairfax Media Publications Pty Ltd v King was imprecision, not generality. The challenge to the impermissibly broad language includes terms commonly and readily understood, such as “a meeting of the city of Parramatta Council” (used in the first three contextual imputations). Challenges of this kind have generally been unsuccessful. In rejecting a challenge to the word “responsible” in a plaintiff’s imputation, Simpson J (as her Honour then was) noted in Piggins v Denton [2006] NSWSC 954 commented at [22]:

“22 This is a familiar refrain in the submissions of defendants concerning the formulation of imputations. It is frequently, as in this case, attached to a further argument about the difficulty a defendant would experience in attempting to justify the imputations. Underlying this is a notion that, in my opinion, ought to be exploded. It is that plaintiffs ought to be required to frame imputations in such a way as to facilitate the defence of the plaintiff’s claim. This is not so. While it can be accepted that litigation is not a game, it nevertheless involves tactical manoeuvring. A plaintiff’s legal advisers will draw an imputation, not so as to facilitate the defendant’s defence, but so as to make it as difficult as possible for a defendant to defend it. Of course, the plaintiff also faces a tactical decision: the more generally framed an imputation is, the more readily it will be able to be defended. Take, for example, an imputation that the plaintiff is a criminal. The publication of which complaint is made may permit of a greater specificity, conveying that the crime said to have been committed by the plaintiff is embezzlement. If the plaintiff eschews that particularity, and pleads an imputation of criminality, then he or she is exposed to potential justification of criminality, of, for example, assault or tax evasion. Both parties have tactical decisions to make. As I have suggested, a plaintiff is not obliged to formulate imputations with the defendant’s interests in mind.”

27. I now deal with each of the words asserted to be imprecise in turn.

Analysis of the challenges

28. The imputations are asserted to be imprecise in general as well as by reason of the choice of language. I shall deal first with each of the challenged words:

1. The phrase “a meeting of the city of Parramatta Council” (contextual imputations (i) – (iii)): The basis of this objection was not identified in the written submissions. It was necessary for me to obtain the transcript to confirm that Mr Thomas withdrew this challenge (T 21), certainly in relation to the first contextual imputation and, by inference, to the other two.

2. The words “disorderly conduct” (contextual imputation (ii)): Mr Thomas submits that the conduct should be specified, giving as examples that the plaintiff “failed to return papers when asked, called the mayor a clown: and the like, adding that behaving disgracefully was “an act rather than a condition” (T 17). The full facts do not need to be set out in the imputation in this epexegetic fashion, as the imputation is read in the context of the matter complained of.

3. The words “insulting” and “an act of disorder” (contextual imputation (iii)): Mr Thomas did not address me as to how these words were too general; his objection appears to have been (T 28-29) that they do not differ in substance, an argument I address in the next section of my judgment.

4. The word “conduct” (contextual imputation iv): This challenge was not pressed during argument. I note the plaintiff has in fact appropriated contextual imputation (iv).

29. Mr Thomas did not elaborate upon how, if the challenges to the individual words failed, the imputations remained objectionable in their entirety. Applying the principles discussed in Fairfax Media Publications Pty Ltd v King and having regard to the form and content of the matter complained of, the plaintiff could not, in my view, argue that he did not know the case he was to meet.

30. For the above reasons, I am satisfied that the plaintiff’s challenges to the form of imputations in terms of their asserted lack of precision should be dismissed.

Differing in substance

31. This objection was raised as to the following groups of imputations:

1. Contextual imputations (ii) and (iii).

2. Contextual imputation (iv) and the plaintiff’s imputations 6A(a) and 11.

32. As to the relevant principles, I note Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453 at [5]:

“Subject to one matter, the argument proceeded on the basis that the parties were not in dispute as to the applicable principles relating to that defence. Counsel for the defendants did not take issue with the following summary of the relevant law which has been provided to me by counsel for the plaintiff, Ms Chrysanthou, in a number of arguments and adopted by me in a number of decisions (the references to Ange are to the decision of Nicholas J in Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204; I have corrected a small number of typographical errors in the citations provided by counsel):

(a) a contextual imputation must differ in substance from the plaintiff's imputations (Ange at [27]);

(b) the question is, would the ordinary reasonable reader or viewer have understood the matter complained of to convey at the same time both the plaintiff's imputations and the defendant's contextual imputation (Ange at [16]);

(c) a contextual imputation will not be permitted if it is merely an alternative formulation to the plaintiff's imputation. The requirement that the imputations differ in substance is a necessary but not sufficient requirement - there must be a difference in kind (Ange at [18] citing a decision of the Court of Appeal considered below);

(d) if the defamatory sting of the contextual imputation is the same as the defamatory sting of the plaintiff's imputation, even if the contextual imputation is broader it will still be impermissible (Ange at [27]);

(e) where there is more than one imputation relied upon by the plaintiff, it is necessary to consider all of the imputations separately and in combination to determine whether a contextual imputation is carried in addition to them (Ange at [28]).”

Contextual imputations (ii) and (iii)

33. Mr Thomas submits that “disorderly conduct” and “act of disorder” are effectively referring to the same thing (T 25).

Contextual imputation (iv) and the plaintiff’s imputations 6A(a) and 11(e)

34. At paragraph 19 of his written submissions, Mr Thomas sets out that, as the only other matters referred to as warranting the plaintiff’s removal are the matters in imputations 6A(a) and 11(e), imputation (iv) “is not capable of being conveyed in addition to” those imputations” (written submissions, paragraph 20), adding that if this argument is not accepted, the plaintiff wishes to “plead back” imputation (iv).

35. I note, however, that Mr Thomas abandoned his challenge on this ground as to contextual imputation (iv) during argument (T 25).

The relevant principles of law

36. The nature of a challenge to imputations on the basis that they do not differ in substance is set out by Sackville JA in Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 at [11], where his Honour noted that the basis of the challenge was pursuant to Uniform Civil Procedure Rules (“UCPR”) r 14.30(3), which provides that a plaintiff in defamation proceedings must not rely on two or more imputations allegedly made by the same publication “unless the imputations differ in substance”; as his Honour notes at [24], such a determination is “properly characterised as an exercise of discretion on a point of practice or procedure”.

37. The requirement for an imputation to be conveyed “in addition to” the plaintiff’s imputations means that it must differ in substance: Fairfax Media Publications v Zeccola [2015] NSWCA 329 at [42] – [48]. In Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 at [30] (“Abou-Lokmeh”) the Court stated:

“In order to be carried “in addition to” the plaintiff’s defamatory imputations, the contextual imputations must differ in substance from the plaintiff’s imputations. [19] As I observed in Zeccola (at [48]), in Ange v Fairfax Media Publications Pty Ltd, [20] Nicholas J explained that the words “in addition to” in s 26(a) removed the confusion under s 16 of the Defamation Act 1974 (NSW) (1974 Act) about what was required to establish a contextual truth imputation as a defence. In Ange, Nicholas J said of the “differ in substance” test:

“[28]The test is straightforward enough, and it would be unhelpful to embroider it with some idiosyncratic gloss. The difficulty sometimes lies in its application in a particular case. Ultimately, the result of the evaluation process is one of impression taking into account the defamatory quality of each party’s imputations with regard to the contents of the matter complained of which conveys them. In order to consider whether the defendants’ contextual imputations are capable of being conveyed by the matter complained of at the same time as and in addition to the imputations pleaded by the plaintiff it is necessary to establish ‘… just what is the precise act or condition which is asserted of or attributed to the plaintiff both by the plaintiff’s own imputations and by the defendants’ contextual imputations’ (Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, p 41E). The scope of an imputation must be taken to include all imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations of meaning of substantially similar imputations. (Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, p 771, Chakravati v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 pp 24, 60, 139.) Where the plaintiff’s imputations are more than one it will be necessary to consider all of them, separately and in combination, to determine whether a contextual imputation is carried in addition to them. The exercise requires a commonsense approach to an understanding of the publication which is expected of the ordinary reasonable reader.””

38. The Court in Abou-Lokmeh referred with approval to the “impressionistic” approach advocated by Nicholas J in Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 at [28], where his Honour stated:

“The test is straightforward enough, and it would be unhelpful to embroider it with some idiosyncratic gloss. The difficulty sometimes lies in its application in a particular case. Ultimately, the result of the evaluation process is one of impression taking into account the defamatory quality of each party's imputations with regard to the contents of the matter complained of which conveys them. In order to consider whether the defendants' contextual imputations are capable of being conveyed by the matter complained of at the same time as and in addition to the imputations pleaded by the plaintiff it is necessary to establish "... just what is the precise act or condition which is asserted of or attributed to the plaintiff both by the plaintiff's own imputations and by the defendants' contextual imputations" ( Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, p 41E). The scope of an imputation must be taken to include all imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations of meaning of substantially similar imputations. ( Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, p 771, Chakravati v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 pp 24, 60, 139.) Where the plaintiff's imputations are more than one it will be necessary to consider all of them, separately and in combination, to determine whether a contextual imputation is carried in addition to them. The exercise requires a commonsense approach to an understanding of the publication which is expected of the ordinary reasonable reader.”

39. One way to test whether a contextual imputation differs in substance from the imputation(s) pleaded by the plaintiff is to identify what the defendant must prove in terms of justification (merely asking what may be proved will suffice): Abou-Lokmeh at [31].

40. Importantly for generally pleaded contextual imputations such as those the subject of this challenge, the “differ in substance” test may be satisfied where a defendant has pleaded a Maisel-style general imputation: Allen v John Fairfax & Sons (Supreme Court of NSW, Hunt J, 2 December 1988). As Mr Senior points out in relation to the extract of that judgment set out in his written submissions at paragraph 34, the ability of the matter complained of to convey both a general and a particular imputation means that the policy behind a contextual justification defence requires that the defendant be permitted to plead the general as a contextual imputation where the plaintiff’s pleading is based on a particular imputation.

41. Hunt J’s observations related to the repealed legislation, but their correctness has been endorsed in Abou-Lokmeh at [33]:

“Hunt J explained the Maisel approach in the contextual truth context in Allen 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 (of a Maisel type) 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 s 16 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.” [24] ”

42. Indeed, the Court went on to note, at [44], that “in most cases a general allegation will differ in substance from the particular”.

Application of these principles to the imputations the subject of challenge

43. As to the asserted failure of imputations (ii) and (iii) to differ in substance, I agree with Mr Senior’s submission that imputation (iii) specifies the particular conduct, so “committed an act…insulting the mayor,” which is a specific imputation that he insulted the mayor and that was an act of disorder, whereas the other contextual imputation is a general imputation about disorderly conduct which includes the consequence of that act, namely that it warranted him making an apology. As Mr Senior noted, proof of justification for each will be quite different. For example, it may be the case that the tribunal of fact finds that the plaintiff did insult the mayor but that he was perfectly justified in doing so.

44. Mr Thomas’s submissions in relation to contextual imputation (iv) were put rather less robustly, in that his alternate goal was to “plead back” and, as noted above, he withdrew his challenge during argument: T 25.

45. I am satisfied that this challenge to the form of each of the identified contextual imputations fails. I include contextual imputation (iv) in this finding in the event that Mr Thomas does not agree that he withdrew his objections in relation to this imputation. There is little or no overlap with the first of the plaintiff’s imputations and the narrow nature of the plaintiff’s true innuendo plea requires proof of different issues to the defendant’s contextual imputation (iv).

The application to appropriate contextual imputation (iv)

46. This application is not opposed by the defendant, with the proviso that leave to amend be revoked nunc pro tunc if the imputation is proved by the defendant to be substantially true, such that, at trial, the defendant may rely upon the imputation for the purpose of a defence under section 26 of the Defamation Act 2005 (NSW).

47. Orders of this kind are commonly made, usually by consent. Helpfully, in Pahuja v TCN Channel Nine Pty Ltd [2015] NSWSC 164, McCallum J noted (at [3]) that orders of this kind were made by consent, but went on to give her endorsement that the making of consent conditional orders was “a sensible course”. Such orders were described by her Honour as “common practice” in Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223 at [28]-[30]:

“28 The defendants have indicated in correspondence that they would accede to what is becoming common practice in this list that, where a plaintiff wishes to appropriate a defendant's contextual imputation, the defendant consents to that course on the basis that the right is reserved to challenge the appropriation at trial in the event that evidence of the substantial truth of the contextual imputation and the plaintiff's knowledge of that truth is adduced. That was the approach taken by me in the matter of Pahuja v TCN Channel Nine Pty Limited [2015] NSWSC 164 at [3], at the urging of the parties in that case.”

48. Mr Thomas’s written submissions of 21 August 2020 did not address the issue of conditional leave, despite it being commonly sought, as Mr Senior noted in his submissions of 1 September 2020 (at paragraph 39). In the course of oral argument, he formally opposed the making of the order on the basis that the factors referred to in another of my decisions (Hooper v Phipps [2020] NSWDC 134) were not made out, without any further elucidation.

49. I gratefully adopt the approach taken by McCallum J in this regard. As the thrust of Mr Thomas’s submissions on other issues shows, the plaintiff has crafted imputations of some specificity as opposed to the generalised contextual imputations selected by the defendant. Although Mr Thomas was careful not to challenge the capacity of the fourth contextual imputation, his challenge to its form came very close to doing so. I agree with Mr Senior’s submission that this is an appropriate case for conditional leave.

50. It was for these reasons that I made orders 4 and 5 of my orders of 3 September 2017.

48. I next set out my reasons for making the orders dated 17 September 2020.

Pleading particulars of truth which relate to events after the publication of the matter complained of

52. The particulars in question are as follows:

“31. Before the Removal Resolution was passed, the plaintiff alleged that the defendant belonged in the Gestapo.

32. The Plaintiff’s allegation that the defendant belonged in the Gestapo was insulting and constituted an act of disorder pursuant to clause 256 of the Local Government (General) Regulation 2005 and clause 31 of the January 2018 City of Parramatta Code of Meeting Practice.

33. The Removal Resolution was put to the attendees of the 25 February 2019 Meeting and carried unanimously.

Council meetings on 6, 11 and 25 March 2019 and 8 April 2019

34. Further meetings of the Council were held on 6,11 and 25 March 2019 and on 8 April 2019 at which the plaintiff was invited to apologise unreservedly for making offensive and derogatory comments and insulting the defendant at the 20 February 2019 Meeting and subsequently making offensive and defamatory comments to the media.

35. At each of the meetings referred to in the [proceeding] paragraph, the plaintiff refused to apologise unreservedly as requested by the defendant and the Council resolved to expel him from each of the meetings as a result.

36. in call the circumstances set out above, the plaintiff’s conduct in making the false allegation referred to in paragraph 19(a) above was disgraceful.”

The basis for the plaintiff’s challenge

53. The objections to the particulars at pages 8 – 19 of the defence (paragraphs 24 – 36) was initially put in a one-sentence submission at paragraph 22 of the plaintiff’s submissions. The basis for the challenge was that “none of the events following the 20 February 2019 Council meeting…could rationally affect the determination of the relevant defences pleaded by the defendant” and these were therefore “surplusage””. The authority cited for the “surplusage” quotation, Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472, does not in fact deal with a defence at all, let alone particulars of justification, and the nature of the plaintiff’s challenge was unclear.

54. Upon inquiry, Mr Thomas’s argument was that justification particulars were chronologically limited and stopped at the date of publication. The application had to be adjourned to enable Mr Thomas to read the relevant authorities (notably Habib v Nationwide News Pty Ltd [2010] NSWCA 34) and to set out his submissions on this issue in more detail. Unfortunately, this adjournment created difficulties for me in terms of the court calendar and on 17 September 2020 I made orders only as I had insufficient time to give reasons.

The relevant principles for striking out particulars of justification

55. The relevant principles are set out in Ange at [55] – [59] as follows:

“55 The principles were recently stated in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335 by McColl JA as follows:

"138 In order to establish imputation 12 was substantially true, the appellant had to establish that every material part of it was true: Howden v Truth & Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416 (at 419) per Starke J; (at 420) per Dixon J; (at 424 - 425) per Evatt J. However this does not mean the appellant had to prove the truth of every detail of the words established as defamatory ( Li v The Herald & Weekly Times Pty Ltd [2007] VSC 109 (at [85]) per Gillard J), rather the defence of substantial truth is concerned with meeting the sting of the defamation: Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 (at [274]) per Gillard AJA (Winneke ACJ generally agreeing and Warren AJA agreeing). As Lord Shaw of Dunfermline explained in Sutherland v Stopes [1925] AC 47 (at 79):

'It remains to be considered what are the conditions and breadth of a plea of justification on the ground of truth. The plea must not be considered in a meticulous sense. It is that the words employed were true in substance and in fact. I view with great satisfaction the charge of the Lord Chief Justice when he made this point perfectly clear to the jury, that all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out . To which I may add that there may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel or in the justification pleaded for it .'

...

141 In order to understand the materiality of the words used in imputation 12, it is open to the Court to have regard to the matter complained of which explains their significance: ABC v McBride (at [47]) per Ipp AJA."

56 Inaccuracy in some detail is immaterial provided it does not alter or aggravate the character of the imputations and so long as the real "sting" of the imputation is shown to be true ( Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440, p 449; Rofe v Smith's Newspapers Ltd (1924) 25 SR(NSW) 4, p 22). In Jones , Hodgson JA said (par 61) that the defendant may not use other acts of dishonesty as a broadcaster to justify the plaintiff's (specific) imputation.

57 It is well established that a court should proceed with caution on an application such as this. In this case the application is directed to the pleaded particulars and not to the defence itself. For the plaintiff to succeed it is necessary to establish that the particulars fall so far short of being capable of supporting the truth of the imputations that they should be struck out (Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376, per Hodgson JA, par 20.)”

56. In the present case, where the particulars include conduct after publication, the court should have regard to the principles set out in Habib v Nationwide News Pty Ltd [2010] NSWCA 34 (“Habib”). Mr Senior has helpfully set out a summary of these principles at paragraph 14 of his written submissions:

the General rule is that an imputation must be justified by reference to the facts in existence at the time of publication: Habib at [313];

the general rule may be departed form in circumstances where an imputation amounts to a general charge against the character of the plaintiff: Habib at [313] and see also [322]-[327] as to the question of whether an imputation amounts to a general charge;

there must be a qualitative proximity between the relevant particulars of truth and the charge laid in the relevant imputation: Habib at [319] citing the decision of Levine J in Assaf v Skalkos; and

the particulars must be matters that have a temporal proximity to the publication of the matter complained of i.e. issues of remoteness (therefore inadmissibility) might occur in relation to acts done so long after the libel that it would have no relevance at all having regard to the time of the libel: Habib at [317]-[319] citing Pickford LJ in Maisel v Financial Times Ltd(No 1) (1915) 112 LT 953.

57. By way of background to that judgment, the entitlement of a party to rely upon particulars of justification arising from conduct after publication of the matter complained of had earlier been the subject of some controversy: see Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312; Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; and Crosby v Kelly [2013] FCA 1343.

58. While the law in this area may not be settled (Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772 at [30]), the general entitlement to plead conduct of this kind where “Maisel” imputations are pleaded (Maisel v Financial Times Pty Ltd [1915] 3 KB 336) has never really been in doubt: Hansen v Border Morning Mail Pty Ltd (Supreme Court of New South Wales, Hunt J, 6 July 1988); Habib at [317] – [319].

59. Mr Thomas initially submitted that publication of material after the time of publication could never be relied upon because “if the defendant did not at the time of publication have information to prove the … matter complained of, it should not have been published (Brooks v Fairfax Media Publications Pty Ltd (No 3) [2020] NSWSC 1331 at [43]; emphasis given by Mr Thomas). However, this was a general remark about the circumstances of a defendant making of a serious allegation without evidence, in the context of hopelessly pleaded particulars, and not a rejection of particularisation of events occurring after the publication pleaded in addition to the particulars of the conduct complained of, as is the case here.

60. Mr Thomas alternatively submitted that there were publications where “the tense and identity” of the subject matter might not have materiality to the sting of the imputation (Con Ange v Fairfax Media Publications Pty Ltd & Ors [2011] NSWSC 204 at [61] and [64] (“Ange”). Timing, in particular, was important; in Ange, the focus was on the plaintiff’s conduct of specific shops at the relevant time of the police raid “10 days ago” (at [63]). Mr Thomas submitted the same requirement of specificity was warranted here. However, the particulars given in that case were “entirely different” to the conduct described in both the article and the imputations (at [64]); once again, this was not a rejection of particularisation of conduct which is acknowledged to be consistent (and thus relevant), but occurred after publication of the matter complained of. In addition, the “timing” element tells against the plaintiff, in that the same subject matter was before the meeting each time.

61. Drawing upon the principles set out in the above cases as well as the helpful commentary in Professor R Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Second Edition,1994) at [10.4], the following principles may be distilled:

1. Conformably with Maisel, if the publication is general e.g. "X is a pimp", evidence of being a pimp in the past and/or the future is permissible, as the timing of the event is not an issue, as is noted in the Australian authorities summarised above.

2. There are, however, exceptions. Where the imputation is one of reasonable suspicion of an act or condition, Professor Brown notes that it may not be possible to rely upon future conduct, as the suspicion must be held at the time of publication, citing Miller v Associated Newspapers Ltd [2014] EWCA Civ 39. However, no exception of this kind occurs here.

3. A plea of justification cannot be sustained solely by evidence that the acts charged against the plaintiff occurred after the publication, as Professor Brown notes at [10.4(1)(b)]. However, if the conviction for offences the subject of the publication occurs after publication, that conduct may be relied upon. Professor Brown adds that, similarly, if the matter complained of was true at the time of publication (i.e. that the plaintiff was convicted of murder) that remains the case if it is sued on after the conviction in question is set aside. Once again, neither of these is the case here.

Application of these principles to the particulars pleaded

62. I first note that the defendant acknowledges that paragraphs 31 and 32 are included in the paragraph references relied upon in the defence but agrees that these paragraphs have relevance only to the substantial truth of the first and third imputations. The defendant will agree to amend the defence (as part of the amendments to be made following the plaintiff’s application to appropriate the fourth contextual imputation) and the argument has proceeded on that basis. A similar acknowledgement is made in relation to paragraphs 34 – 36 in relation to the first and second contextual imputations (see paragraph 11 of the defendant’s submissions).

63. As to the issues of “tense and identity” referred to in Ange, the conduct specified in paragraphs 31 and 32 was referred to by the debate of the Lord Mayoral Minutes at the 25 February meeting and, whether alone or taken in conjunction with the plaintiff’s other words (such as calling the Mayor a clown) is reasonably capable of establishing the substantial truth of the imputation in accordance with the principles enunciated by Nicholas J In Ange.

64. The same is the case with paragraphs 34 to 36. The plaintiff was invited to apologise for making offensive and derogatory comments on each of the four following meetings and not only refused to do so but did so in terms which led the Council to resolve to expel him from each of the relevant meetings. How the plaintiff can describe his conduct on each of these occasions as “entirely extraneous” when the facts relevant to the matter complained of are so inextricably interwoven with his conduct on these occasions, where the identical request was made, is unexplained. Once again, as to the “tense and identity” issues in Ange, the principles as enunciated in Habib at [311] – [334] must be applied. In the present case, qualitative proximity, as well as the temporal proximity, must be made out, which is clearly the case here.

65. For the above reasons, and noting the defendant’s concession about clarification of certain of the particulars as set out above, the defendant is entitled to plead and to rely upon the particulars of justification the subject of challenge.

Costs

66. The defendant has been successful on all issues and for this reason costs followed the event.

67. An additional reason for the making of this costs order is that the defendant’s failure to raise what Mr Thomas referred to as the Ange argument concerning the entitlement to plead future particulars was not raised beforehand and required the hearing of this application to be stood over part-heard. When that argument proceeded, it did so on a very different basis to that which is set out in his first submissions.

Orders

03 September 2020

1. Grant leave to Plaintiff to reinstate imputation 6(c) “The plaintiff is dishonest”, which is strike out inadvertently.

2. Grant leave to Plaintiff to plead the fourth contextual imputation as a new imputation 6(f).

3. Plaintiff’s challenge to the form of the contextual imputation (iv) is dismissed.

4. Subject to the condition set out in order (5), the plaintiff is granted leave to file a Further Amended Statement of Claim pleading the imputation which is currently pleaded by the defendant as the fourth contextual imputation in the Defence.

5. The leave granted in order (4) above, is granted on the condition that leave to amend be revoked nunc pro tunc if the imputation is proved by the defendant to be substantially true, such that, at trial, the defendant may rely upon the imputation for the purpose of a defence under s. 26 of the Defamation Act 2005 (NSW).

6. Dismiss the challenge to the first and the third contextual imputations brought on the basis that the language of these imputations is sufficiently imprecise.

7. Dismiss the challenge to the second and third contextual imputations as not differing in substance

8. Defer the argument as to the particulars of justification (para 24-26), pending the further submissions as follows:

9. Plaintiff to file further submissions by 10 Sep 2020

10. Defendant to file a reply to the further submissions by 17 September 2020.

11. Matter listed for further argument on Thursday 17 September 2020.

12. Costs reserved.

17 September 2020

13. Note the concession that the particulars need to be re-pleaded to set out which apply to which contextual imputation.

14. Plaintiff’s application to strike out particulars 31, 32, 34, 35 and 36 of the particulars of the contextual justification Defence is dismissed with costs including the cost of the adjourned hearing of 3 September 2020.

15. Parties are to provide SMO for a further timetable for this proceeding including amendments to the contextual justification particulars following from the agreement between Mr Senior and Mr Thomas.

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Decision last updated: 22 December 2020