Corby v Allen and Unwin Pty Limited

[2013] NSWSC 308

Supreme Court

New South Wales

Medium Neutral Citation:

Corby v Allen & Unwin Pty Limited [2013] NSWSC 308

Hearing dates:

27-28 March 2013

Decision date:

10 April 2013

Before:

Adamson J

Decision:

The following imputations are struck out:

(1) In proceedings 340887 of 2012 (brought by Mercedes), (b), (c), (d) and (h).

(2) In proceedings 348205 of 2012 (brought by Rosleigh), (b), (d), (e), (f) and (h).

(3) In proceedings 348219 of 2012 (brought by Michael Jnr), (a), (b) and (c).

Leave to replead is granted in respect of:

(1) Mercedes' imputation (h).

(2) Rosleigh's imputation (b).

(3) Michael Jnr's imputation (a), (b) and (c).

Catchwords:

DEFAMATION-application to strike out imputations-whether imputations have the capacity to lower reputation of plaintiff in the estimation of others

Legislation Cited:

- Defamation Act 2005, s 10
- Uniform Civil Procedure Rules, r. 28.2

Cases Cited:

- Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158
- Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679
- Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186
- Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300
- Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763
- John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; 230 CLR 291
- John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; 64 NSWLR 485
- John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 201 ALR 77
- Lewis v Daily Telegraph Ltd [1964] AC 234
- McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485
- Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460

Category:

Interlocutory applications

Parties:

Mercedes Pearl Esma Corby (Plaintiff)
Rosleigh Jill Rose (Plaintiff)
Michael Corby Jnr (Plaintiff)
Allen & Unwin Pty Limited (First Defendant)
Eamonn Duff (Second Defendant)

Representation:

Counsel:
KP Smark SC and S Chrysanthou (Plaintiffs)
ATS Dawson (Defendant)
Solicitors:
Kalantzis Lawyers (Plaintiffs)
Banki Haddock Fiora (Defendant)

File Number(s):

2012/340887; 2012/348204; 2012/348219

Judgment

Introduction

1. By statement of claim filed on 1 November 2012 Mercedes Corby (Mercedes) commenced defamation proceedings against the defendants concerning a book written by the second defendant (the Author) entitled "Sins of the Father" (the matter complained of) which was published by the first defendant in about November 2011.

1. By statements of claim filed on 8 November 2012, Rosleigh Rose (Rosleigh) and Michael Corby Jnr (Michael Jnr) also commenced defamation proceedings against the defendants in relation to the publication.

1. The defendants, by notices of motion dated 21 March 2013, sought to have every imputation contained in each of the statements of claim struck out on the basis that they were not, as a matter of law, capable of arising from the matter complained of. Pursuant to UCPR r. 28.2 this is the separate trial of the capacity of the matter complained of in an action for defamation to convey various of the imputations pleaded by the plaintiff. The defendants have since conceded that several of the imputations are capable of arising from the publication. These concessions are noted below.

The matter complained of

1. Mr Smark SC, who appeared with Ms Chrysanthou on behalf of each of the plaintiffs, submitted that the matter complained of is presented to the reader as a non-fiction account of events by the Author, who is described as a journalist. Mr Smark submitted that many of the events are described as if from the standpoint of an observer, and as matters of incontrovertible fact. He emphasised that the matter complained of begins with a quote from Sir Walter Scott "Oh! What a tangled web we weave when we first practise to deceive!".

1. He submitted that there were three themes or strands in the book: drugs, lies and greed and that these strands were interwoven.

1. Mr Smark summarised parts of the matter complained of and submitted that the summary:

". . . demonstrates the tenor of the publication - namely that Mick Corby ran drugs for over a decade from Adelaide, to Queensland and to Bali. The Corby family are all so close they clearly were all involved in it, or at least knew about it. To the extent that they have publicly denied being involved in drugs, they are liars. They lied about knowing Malcolm McCauley and Dave McHugh, they lied about Schapelle being innocent and they lied about Mick Corby's drug business. They each also callously profited from Schapelle's incarceration, at times to her detriment."

1. Mr Dawson, who appeared for the defendants, submitted that the matter complained of principally concerned the culpability of Schapelle Corby, the sister of Mercedes and Michael Jnr and Rosleigh's daughter, for the importation of marijuana into Bali in October 2004. It also concerned the involvement of Schapelle's father, Michael Corby (Mick), a former husband of Rosleigh, in drug trafficking, and in particular in the importation by Schapelle which led to her conviction. The title of the matter complained of, "Sins of the Father" is a reference to Mick's involvement in the importation. The secondary title, "The Untold Story behind Schapelle Corby's ill-fated drug run" is a reference to Schapelle's responsibility for the importation.

1. Mr Dawson submitted that the references to the plaintiffs' conduct principally involved their actions and words after Schapelle was apprehended. He submitted that the matter complained of makes plain that members of Schapelle's family received a substantial amount of money from media appearances and interviews relating to Schapelle's case and her fate in Bali.

1. The matter complained of squarely raises the thesis that Mick had been a drug-trafficker since late 1999 or 2000 who had been supplied by Malcolm McCauley with high quality marijuana grown by Mr McHugh in South Australia, which was couriered to Queensland. The matter complained of purports to establish that Mick had, on a single occasion in October 2004, used his daughter Schapelle as a drug courier to deliver 4.2 kgs of marijuana to Bali and that Schapelle well knew that she was taking marijuana in the bag which also contained her boogie board. There is a significant amount of background material relating to the cultivation and provenance of Mick's drug supply, which was grown in South Australian and transported to Queensland, where Mick was located. The matter complained of emphasises Schapelle's well-published insistence that she is innocent and documents the actions and motives of the members of the Corby clan, and in particular the plaintiffs, in connection with Schapelle's arrest, trial and conviction and the attendant publicity.

1. The matter complained of is written in a racy, vernacular style. Its chapter headings and accompanying quotations point to the conclusion the Author seeks to have the reader draw. Mr Smark described the matter complained of as an exercise in "Gonzo journalism", a term coined to describe an article written by Hunter S. Thompson. So-called Gonzo journalism tends to include the reporter as part of the story and the discovery of the "truth" as part of the plot.

1. Although I accept that there are elements of Gonzo journalism in the matter complained of, in that the meeting between the Author and the primary source, Mr McCauley, is described, as are the techniques used by the Author to persuade Mr McCauley to tell his story, the matter complained of also has hallmarks of more traditional investigative journalism. It supports its contentions by facts or quotations that it says can be verified by third parties. It purports to be a serious work of investigative journalism.

1. Neither of the main protagonists, Schapelle or Mick, has brought proceedings. Mick Corby died in January 2008, and is accordingly by that reason alone disentitled to bring such proceedings: s 10 of the Defamation Act 2005 (the Act).

Mercedes' imputations

1. Mercedes ultimately contended, following amendments made in the course of the hearing, that the following imputations arose from the matter complained of:

(a)   she severely damaged her sister Schapelle's chance of an early release from a Bali gaol by giving interviews to the media.

(b)   she was part of a drug syndicate run by her father Michael [Mick] Corby.

(c)   Alternatively to (b) she dishonestly denied knowing that her father Michael Corby was part of a drug syndicate.

(d)   she lied to the media in an attempt to discredit Alan Trembath by calling him crazy and drunk.

(e)   she worked as a hostess in the Japanese sex industry.

(f)   she lied to the media when she told them that she could not even remember Schapelle's ex-husband Kimi's surname.

(g)   she lied to the media when she told them that she and her husband Wayan had planned to stay in Bali for six months in 2004 only in order to give their children a taste of Balinese culture.

(h)   she lied to the media about the criminal history of members of her family when she gave an interview to Ross Coulthard.

(i)   she exploited her sister's incarceration by making a fortune from media deals.

(j)   she was an uncaring sister, in that she cared more about money and celebrity than comforting her sister Schapelle in gaol.

(k)   she only told the truth in court because she was forced to as a result of incriminating photographs.

(l)   she, together with her family, has benefited by receiving over two million dollars' worth in media deals despite the fact that the media attention was not always in Schapelle's best interest.

1. The defendants accepted that imputations (a), (e) and (l) ought go to the jury.

Rosleigh's imputations

1. Rosleigh ultimately contended, following amendments made in the course of the hearing, that the following imputations arose from the matter complained of:

(a) she lied to the media when she told them that Malcolm McCauley was a random Aussie holidaymaker who approached her to wish her daughter Schapelle luck.

(b) she dishonestly denied knowing David McHugh prior to his visits to Bail.

(c) she severely damaged her daughter Schapelle's chances of an early release from a Bali gaol by giving interviews to the media.

(d) she was part of a drug syndicate run by her ex-husband Michael Corby.

(e) Alternatively to (d), she dishonestly denied knowing that her ex-husband Michael Corby was part of a drug syndicate.

(f) she lied to the media when she told them that her ex-husband Michael Corby was not interested in drugs.

(g) she lied to the media when she told them that she could not even remember Schapelle's ex-husband Kimi's surname.

(h) she had ungratefully terminated the services of Ron Bakir and Robin Tampoe for no good reason.

(i) she was an uncaring mother, in that she cared more about money and celebrity than about comforting her daughter Schapelle in gaol.

(j) she, together with her family, has benefited by receiving over two million dollars' worth in media deals despite the fact that the media attention was not always in Schapelle's best interests.

1. The defendants accepted that imputations (a), (c) and (j) ought go to the jury.

Michael Corby Jnr's imputations

1. Michael Corby Jnr ultimately contended, following amendments made in the course of the hearing, that the following imputations arose from the matter complained of:

(a) he was part of a drug syndicate run by his father Michael [Mick] Corby.

(b) he had bought a fish and chip shop with money he made from the drug trade.

(c) he had bought a fish and chip shop knowing that it was with money that his father had made from the drug trade.

1. The defendants challenged each of these three imputations.

Applicable Principles

1. Whether certain imputations are capable of arising is to be adjudged from the standpoint of the ordinary reasonable reader who has read the whole of the matter complained of.

1. The principles which inform whether or not an imputation is capable of arising were authoritatively stated by Hunt CJ at CL (with whom Mason P and Handley JA agreed) in Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158 at 164-167 (Marsden) and more recently summarised by Tobias JA (with whom Sheller JA and Young CJ in Eq agreed) in Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 at [19] - [20], McHugh J in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 201 ALR 77 at [23] and [26] and by Gleeson CJ, McHugh, Gummow and Heydon JJ in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 (Favell) at [8] to [12 ] in which passages from Lord Devlin's judgment in Lewis v Daily Telegraph Ltd [1964] AC 234 (Lewis), at 285 are quoted with approval.

1. These principles, relevantly, include the following:

(1)   The reader of a written document has the opportunity to consider or to reread the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed (Marsden at 166).

(2)   One must consider the broad impression conveyed by the matter complained of and not the meaning of each word under analysis.

(3)   A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire. Loose talk about suspicion can very easily convey the impression that it is a suspicion that is well-founded (Favell at [11], quoting Lewis).

(4)   There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual (Marsden at 165).

(5)   An ordinary reasonable reader is a person of fair average intelligence, who is neither perverse, morbid nor unduly suspicious, nor avid for scandal (Marsden at 165).

(6)   An ordinary reasonable reader does not live in an ivory tower and is not inhibited by rules of construction. He or she can, and does, read between the lines (Favell at [10], quoting Lewis).

(7)   If ordinary reasonable readers may differ as to whether the matter complained of was capable of carrying the imputation then the issue must be left to the jury; otherwise it is a matter for the Court (Marsden at 164).

(8)   The mere publication of defamatory hearsay amounts to adoption of that statement but the nature of the imputation conveyed may depend on whether it is adopted, repudiated or discounted (John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; 64 NSWLR 485 at [98]-[100] per McColl JA, Sheller JA and McClellan A-JA agreeing).

1. Both counsel made submissions in respect of the imputations by reference to groups or categories. I propose to do the same in these reasons. I heard detailed argument with reference to many parts of the matter complained of in respect of these motions. For reasons of brevity the reasons do not recite all the passages referred to.

The imputations of being part of the drug syndicate run by Mick or dishonest denial of knowledge of drug syndicate ((b) and (c) of Mercedes' imputations; (d), (e) and (f) of Rosleigh's imputations and (a), (b) and (c) of Michael Jnr's imputations)

1. Mr Smark contended the ordinary reasonable reader would draw from the matter complained of imputations that each of the plaintiffs was involved in, or aware of, Mick's drug trafficking by reference to the following line of reasoning:

(1)   The family was a close family.

(2)   Each of the plaintiffs socialised with Mick and would visit him at his house at Tugun (near the Gold Coast) and also his farm at Inveragh.

(3)   For some periods Schapelle, Mercedes and Mick Jnr lived with their father in his house at Tugun, which was not far from the carpark at Jupiter's Casino, the handover point for the drugs which had come from South Australia.

(4)   Schapelle knew that her father had been trafficking in drugs since late 1999 or 2000.

(5)   There is no reason to suppose that Schapelle would know of her father's criminal activities but that her mother, Rosleigh, her sister, Mercedes and her brother, Michael Jnr, would be unaware of such activities.

1. Mr Dawson submitted that the children were closer to Rosleigh than they were to Mick and that although they visited their father and stayed with him from time to time, his drug operations were deliberately conducted away from his residences. Mr Dawson also emphasised that Mick and Rosleigh had separated in 1979, some 20 years before, Mick, according to the Author, established the drug syndicate.

1. Mr Smark submitted that there is a significant amount of innuendo, insinuation and suspicion created by the matter complained of which had the effect that the ordinary reasonable reader would be left with the impression that the plaintiffs either participated in the syndicate or must have known what was going on.

1. Mr Smark referred in particular to the chapter dealing with the defamation suit brought by Mercedes and Rosleigh against Channel 7. He submitted that the tenor of that chapter was that Mercedes was in fact involved with drugs, beyond that which could be proved, namely that she had smoked marijuana in her youth, but that Channel 7 had not done sufficient legwork to prove the truth of the allegations made against her which resulted in Channel 7 having to settle the proceedings for a substantial, but undisclosed, sum. He submitted that the ordinary reasonable reader would have gained the impression that the imputations made by Channel 7, though they could not be proved, were nonetheless true. He emphasised the Author's juxtaposition of truth, on the one hand, and proof on the other.

1. By contrast, Mr Dawson submitted that the Author disparaged Channel 7 for broadcasting something which had little or no basis and concluded that Mercedes was cleared of any involvement whatsoever. That Channel 7 settled on the basis that they would pay both Mercedes and Rosleigh a substantial sum meant, according to Mr Dawson, that there was no basis for the defamatory imputations that arose from the Channel 7 broadcast. The ordinary reasonable reader would get the impression that all that Channel 7 had was "tittle-tattle" from Jodi Power, an old friend of Mercedes, who had been completely discredited in the witness box and that the case was, as far as Channel 7 was concerned, an unmitigated disaster. Although the Author refers to Kim Moore, who knew Tony Lewis, one of Mick's associates, her evidence implicated Mick, but did not implicate the plaintiffs.

1. I do not consider that the ordinary reasonable reader could have gained the impression for which Mr Smark contends. Although latitude is given for loose thinking, particularly where, as in the course of the matter complained of, sensational language is used, I do not consider the imputations are capable of being conveyed. The Author is careful to distance himself from the allegations made by Channel 7 and from its almost baseless broadcast. The ordinary reasonable reader is not unduly suspicious and does not, unless invited, indulge in conspiracy theories.

1. Mr Dawson submitted that were I to find that the bane of the imputations was capable of being conveyed, the imputations were swamped by the antidote of the corrective parts of the matter complained of. He contended that this is one of the rare cases referred to in Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 where it would not be open to ordinary reasonable readers, reading the matter complained of as a whole, to come to the conclusion that the plaintiffs were implicated in the drug syndicate or had knowledge of it when the book itself emphasised that the plaintiffs had been accused without cause.

1. I agree that the whole tenor of the book, particularly in the context of the chapter devoted to the defamation proceedings against Channel 7, is such that no fair-minded reader would infer that Mercedes had any connection with drugs beyond her admitted youthful experimentation. Although Channel 7's defamation of Mercedes was repeated in the book, what followed so plainly swamped any potential defamatory meaning, in my view, as to require striking out those imputations on the grounds of capacity.

1. Mr Dawson accepted that there was a sentence in the book which supported Schapelle's knowledge, in the following passage at page 358 of the matter complained of:

"The truth is, she [Schapelle] always knew her dad was a drug dealer. She knew about the trips to Bali, she knew about the system, the bribes, she knew the lot."

1. Mr Dawson said that although Mr McCauley is quoted as telling the author of Schapelle's long-standing knowledge, there was otherwise no indication in the matter complained of that Schapelle was other than a first-time drug courier in October 2004 or that she was in any way accustomed or inured to the risks of such an activity. Mr Dawson instanced the descriptions of her appalling behaviour on the plane and her excessive consumption of alcohol which was consistent with nervousness and inexperience.

1. Mr Smark submitted that the ordinary reasonable reader would infer that because Schapelle knew of her father's drug syndicate, each of the plaintiffs also knew of his activities, because they were a close family. Although there is neither investigation nor explanation in the book of how it was that Mr McCauley knew that Schapelle had the knowledge he attributed to her, I do not consider that an ordinary reasonable reader would draw the inference alleged. Indeed, Mr McCauley's specific reference to Schapelle's knowledge as distinct from the collective knowledge of the "Corbys" would, in my view, lead the ordinary reasonable reader to gain the impression that, with the exception of Schapelle, none of the Corbys knew of Mick's criminal activities.

1. I do not consider any of these imputations to be capable of arising.

1. Mr Dawson also made a formal objection to the imputations. He submitted that the words "part of" in connection with a drug syndicate were bad in form and amounted to "weasel words" which had a variety of meanings such that their use was ambiguous or equivocal and therefore lacked the requisite specificity: Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 at [23] per Nicholas J. I reject this submission. Had I considered the imputations capable of arising I would not have struck them out on the grounds of form. As was said by Callinan and Heydon JJ at [194] in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; 230 CLR 291:

"Published matter may well convey a duality of meanings and impressions, not necessarily exclusive of one another, and sometimes with one leading to another, successive, inevitable or almost inevitable one."

Imputations concerning Michael Jnr

1. Mr Smark submitted that, in respect of Michael Jnr, the ordinary reasonable reader would have gained the impression that the only way he would have been able to afford to buy the fish and chip shop known as Rox's (presumably a reference to Rosleigh) Seafood Takeaway at Southport would have been either if he was part of his father's drug syndicate, or with money he himself had earned from the drug trade or with money that he knew his father had made from the drug trade. Mr Smark contended that the Author has aroused the suspicion by making the point that, although apparently lacking in means, Michael Jnr nonetheless purchased a fish and chip shop.

1. I do not consider the matter complained of is capable of conveying any of these imputations to the ordinary reasonable reader. The impression created by the Author is that Michael Jnr is a surfer who has neither motivation nor discipline to earn a living. Although the matter complained of states that Michael Jnr bought the fish and chip shop, it is fairly obvious that not only that he did not have the means to buy it but also that he did not actually want it, did not like working in it and that it was, effectively, his mother's business.

1. That the money to buy the shop was provided by one or other of his parents is an inference that the ordinary reasonable reader is likely to draw. Other references to the shop in the matter complained of describe it as "the family shop". The ordinary reasonable reader might consider that, if the money happened to come from Mick, then it was likely, having regard to the thesis for which the Author contends, that the money came from drugs. However, in my view the ordinary reasonable reader would not infer that Michael Jnr himself knew of the likely source of the funds, if they had come from his father.

1. There is also a reference elsewhere in the matter complained of to the opinion held by one of Schapelle's Indonesian lawyers that Michael Jnr looked like a drug dealer and therefore should be kept out of sight. However, there is otherwise no suggestion that Mick Jnr resembles anything other than what he is portrayed to be: a surfer. I do not consider that the ordinary reasonable reader would get the impression that the assessment by Schapell's Indonesian lawyer of Mick Jnr's appearance was other than either a cultural curiosity or an idiosyncratic view.

1. I do not consider that any of these imputations are capable of being conveyed by the matter complained of.

1. Accordingly, (b) and (c) of Mercedes' imputations; (d), (e) and (f) of Rosleigh's imputations and (a), (b) and (c) of Michael Jnr's imputations will not go to the jury. Because of the fundamental reasons for my opinion that these imputations are not capable of arising, leave to replead is refused.

Imputations relating to Rosleigh's prior knowledge of Mr McHugh ((b) of Rosleigh's imputations)

1. The matter complained of describes Mr McCauley and Mr McHugh as Mick's long-standing regular drug suppliers. There is a close connection between them.

1. Mr Smark submitted that the ordinary reasonable reader would get the impression that Rosleigh knew Mr McCauley and Mr McHugh prior to their visits to Bali and the role they played and that they needed to see Schapelle before her trial to make sure she did not crack under pressure and implicate them in the importation.

1. The matter complained of recounts three visits made to Bali by Mr McHugh and two by Mr McCauley. The first visit was made in late 2004 shortly after Schapelle's arrest. Mr McCauley, together with his wife, travelled with Mr McHugh to Bali. They did not make contact with Schapelle or any member of the Corby family. Mr McHugh made the second visit by himself, for the trial in January 2005. He managed to see Schapelle in the holding cell. The Author describes how overwhelmed and impressed Mr McHugh was with Schapelle in the following terms:

"Strongly affected by her glamorous vulnerability, McHugh felt as if he was in the presence of a movie star."

1. The third visit is the subject of a chapter entitled "Jailhouse Visit". The Author describes a documentary film that shows Mr McHugh and Mr McCauley meeting Schapelle for the first time in the holding cells. It is said that the Corby family regularly met to drink at an establishment known as the Secret Garden and that Mr McHugh and Mr McCauley also frequented it. Mr McHugh and Mr McCauley eventually arranged with Rosleigh to see Schapelle. On the day they visited Schapelle in gaol, Rosleigh and her husband Greg were also there and both Rosleigh and Greg took photographs of the assembled company.

1. Mr Smark heavily relied on this chapter as giving the ordinary reasonable reader the impression that Rosleigh knew Mr McHugh before Schapelle's arrest. He submitted that the special access that he and Mr McCauley were given would tend to signify to the ordinary reasonable reader that already knew Mr McHugh.

1. Mr Dawson submitted that there is no suggestion elsewhere in the book of any prior acquaintance between Rosleigh and either Mr McHugh or Mr McCauley. Although Mr Dawson accepted that the ordinary reasonable reader might feel some "slight surprise" at the notion that these two men who were so heavily involved in the drug trade were given special access to Schapelle by the family, he contended, correctly in my view, that there was no suggestion that Rosleigh had met Mr McHugh prior to his trips to Bali.

1. I do not consider that this imputation should go to the jury since the imputation is not capable of being conveyed to an ordinary reasonable reader by the matter complained of.

1. I grant leave to replead this imputation.

The media imputations ((i) of Rosleigh's imputations and (i) and (j) of Mercedes' imputations)

1. Mr Dawson submitted that (i) of Rosleigh's imputations and (j) of Mercedes' imputations were not capable of arising because the whole tenor of the book was that both Mercedes and Rosleigh cared very deeply about Schapelle and were desperate for her release.

1. Although the ordinary reasonable reader might get the impression for which Mr Dawson contended, I consider that such a person could also get the impression that Rosleigh and Mercedes were interested in the money and celebrity status that they were able to acquire through their connection with Schapelle. In these circumstances I consider these imputations to be capable of arising and, accordingly, that they ought go to the jury.

1. Mr Dawson also made a formal objection to (i) of Mercedes' imputations. He submitted that it was not clear whether the word "exploit" meant actively taking advantage of the situation in order to make a fortune or whether it is merely a conclusion about the effect of particular conduct without ascribing any particular intention to her. He submitted that, in the latter case, the imputation should be struck out as being incapable of being defamatory since it would not lead the ordinary reasonable reader to think less of Mercedes: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 at [5] per French CJ, Gummow, Kiefel and Bell JJ.

1. Mr Dawson also submitted that because of this ambiguity, it was not clear whether there was any substantial difference between (i) and (j) such as would permit both to go to the jury.

1. Mr Smark confirmed that Mercedes' imputation (i) used the word "exploited" in a pejorative sense.

1. I consider that Mr Smark's confirmation that the word "exploited" is used in a pejorative sense overcomes Mr Dawson's formal objection. In my view there is a sufficient difference between Mercedes' imputations (i) and (j) such as would permit both to go to the jury if I found that they were capable of arising, which I do.

1. Accordingly, Rosleigh's imputation (i) and Mercedes' imputations (i) and (j) ought go to the jury.

Imputations concerning lying to the media about Schapelle's ex-husband's surname ((f) of Mercedes' imputations and (g) of Rosleigh's imputations)

1. Mr Dawson's objections to these imputations, which are in relevantly identical terms save for the reference to the particular plaintiff, were that not only was there no basis in the matter complained of for the word "lied" but also that there is no specific reference to either Mercedes or Rosleigh in the matter complained of in this connection.

1. The passage from the matter complained of which is relied upon as conveying these imputations is on page 83:

"Schapelle eventually returned to the Gold Coast from Japan in 2000. After her arrest, the Corbys were certainly not keen for any media to find Kimi in Japan, going to the extraordinary lengths of telling one newspaper journalist that the family could not remember his surname."

1. Mr Dawson submitted that there was no pointer which would incline the ordinary reasonable reader to read the reference to "the Corbys" as necessarily being a reference to each of Mercedes and Rosleigh. He relied on the following passage from McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 at 487F per Hunt J:

"A libel upon the whole of a class may be the subject of complaint by a member of that class who is not individually pointed to in what was published only if the matter complained of can fairly be read as defaming each member of the class."

1. Mr Smark submitted that the ordinary reasonable reader would not necessarily infer that it was only one member of the family who told the newspaper journalist that the family could not remember the surname of Schapelle's ex-husband. Since there was a real prospect that the ordinary reasonable reader would regard the reference to "the Corbys" as a reference to both of Mercedes and Rosleigh, the imputation was capable of being conveyed by the matter complained of. He submitted that the expression "the Corbys" was apt to include, in this context, Mercedes and Rosleigh since they were the most vocal members of the family and tended on other occasions to act as spokespeople for Schapelle and for the family as a whole.

1. I consider that the ordinary reasonable reader could regard the statement as one that was made by both Mercedes and Rosleigh or each of them. The tenor of the publication is that both Mercedes and Rosleigh took it upon themselves to represent the family and effectively side-lined, if not silenced, Mick and Michael Jnr. I also consider that the ordinary reader could consider that they had "lied" since the surname of a former spouse of one's daughter or sister, as the case may be, is not something readily forgotten.

1. In these circumstances I consider that these imputations ought go to the jury.

Mercedes imputation (d): she lied to the media about Alan Trembath

1. The relevant passage is on page 19 of the matter complained of:

"Mercedes Corby later tried to discredit Alan, saying he was 'crazy and drunk'."

1. Mr Dawson submitted that this passage, without more, is incapable of conveying the imputation that Mercedes was lying. He contended that there was nothing in the matter complained of that provides information to contradict what Mercedes said about Mr Trembath, or that she knew that what she said was untrue.

1. Mr Smark submitted that much of the matter complained of created the impression that Mercedes was unreliable, and, at times, dishonest and would lie if it suited her purposes. He submitted that in such a context the imputation was capable of arising.

1. I do not accept that an ordinary reasonable reader of a book such as the matter complained of would consider that just because Mercedes has admitted lying, and has been shown, at times, to be unreliable, that every time she says anything, she is lying. In my view there is no other basis that has been identified for the submission that this imputation is capable of arising.

1. Imputation (d) ought not go to the jury.

Mercedes imputation (e): that she worked as a hostess in the Japanese sex industry

1. Mr Dawson submitted that the imputation was bad in form because it did not make clear whether the imputation was that Mercedes worked as a sex worker or as a hostess who did not provide sex. He submitted that if it was the former, it was not capable of arising and if it was the latter, it would not be defamatory.

1. Mr Smark confirmed that it would not be suggested that Mercedes had sex for money. He submitted that the meaning of the imputation was that Mercedes worked as a hostess in the Japanese sex industry but did not have sex for money. In light of this confirmation, Mr Dawson accepted that the imputation could go to the jury on that basis.

Mercedes imputation (g): that she lied to the media about her plans to stay in Bali for 6 months

1. The matter complained of describes how Mercedes and her husband Wayan decided to return to Bali in July 2004 for an extended holiday. On one reading the text rises no higher than a suggestion that Mercedes remained in Bali with her husband, although they had initially intended to stay only for six months because it was easier for Wayan to work there and the cost of living was significantly lower than on the Gold Coast.

1. However, as Mr Smark submitted, the matter complained of gives the ordinary reasonable reader the impression that Mercedes is prepared to lie on occasions for her own purposes. An ordinary reasonable reader might consider that this impression carries over to what Mercedes is reported as saying to the media about the reasons she and Wayan went to Bali and what their original intentions were as to the length of their stay there.

1. In terms of the motive Mercedes might have had to make this statement, Mr Smark suggested two possibilities: first, that Mercedes wanted to depict her family as unequivocally Australian and having been forced to stay in Bali because of what happened to Schapelle; and secondly, that she was part of the drug syndicate. I consider that the first motive suggested arises from the book and an ordinary reasonable reader might get the impression that that inclined Mercedes to lie about the matter. For reasons already given, I do not consider the drug imputations are capable of being conveyed from the matter complained of.

1. Although I have considerable doubt as to whether the imputation is capable of being conveyed by the matter complained of, I consider that the imputation ought go to the jury, since ordinary reasonable readers may differ as to the conclusion to be drawn from the matter complained of.

Mercedes imputation (h): that she lied to the media about the criminal history of members of her family when she gave an interview to Ross Coulthard

1. The matter complained of describes an interview between Ross Coulthard and Mercedes that was broadcast on Channel 9's then Sunday program. Mr Coulthard asked Mercedes whether anyone in the family, including the distant family, had been convicted of a drug offence. Mercedes denied that there had. It subsequently emerged that her half-brother, Clinton 'Badger' Rose, had, to her knowledge, been convicted of drug offences.

1. The matter complained of also refers to Mick having been charged with possessing marijuana in the 1970's for which he was apparently fined $400 although, according to Mick, "the charges were all scrubbed". The matter complained of said:

"When Mercedes was asked by the Australian about her comments on the Sunday program and her father's drug history, she said that she was not even alive when that happened and 'wouldn't even bloody know'. However she did know about Clinton's criminal record, which included drug charges, and had now been caught out on national television."

1. Mr Dawson properly conceded that the imputation (h) would be capable of being conveyed if "members of her family" were amended to be confined to a single member or specifically to Clinton Rose. However, he submitted that the matter complained of is not capable of conveying the imputation that she lied about the criminal history of anyone in her family apart from Mr Rose.

1. I do not consider that an ordinary reasonable reader would gain the impression that Mercedes had lied about her father's criminal history. Its antiquity and the fact that the charges had been scrubbed in any event mean that there could be no reasonable suggestion that when she was interviewed she had any idea that her father had been charged in the 1970's.

1. This leaves Mr Rose's criminal history as the only matter about which Mercedes is said to have lied. The imputation is, in my view, too broad to be capable of arising and cannot go to the jury in that form.

1. I grant leave to replead this imputation.

Mercedes imputation (k): that she only told the truth in Court because of incriminating photographs

1. This imputation arises in the context of Chapter 33 entitled "Thirty Pieces of Silver" which is a reference to the betrayal of Mercedes by her erstwhile friend Jodie Power. The chapter begins with a quotation attributed to Mercedes:

"We all know that we've been under watch, under scrutiny, everyone's trying to pick pick pick . . . anything at our family. Reporters even ring friends, trying to get dirt on me. They're not going to find any."

1. Mr Dawson submitted that the gist of the imputation is that the plaintiff would have lied in Court about her marijuana use but could not do so because of photos of her using a "penis" pipe and a "mull bowl". He contended that the matter complained of was not capable of giving rise to this imputation because it did not rise higher than to suggest that, when confronted with a photograph that depicts something, the subject of the photograph cannot deny it.

1. Mr Smark submitted that the tenor of the matter complained of was that Mercedes was untruthful. He instanced throughout the book examples where the Author had cast aspersions on Mercedes' credibility.

1. I doubt that Mercedes imputation (k) is capable of arising but I accept that ordinary reasonable readers might differ as to the conclusion to be drawn. In light of the authorities I propose to allow the imputation to go to the jury.

Rosleigh imputation (h): that she had ungratefully terminated the services of Ron Bakir and Ross Tampoe

1. Mr Dawson submitted that this imputation was incapable of being defamatory because the adverb "ungratefully" was not sufficiently serious to result in ordinary members of the community thinking less of the person to whose conduct the adverb was applied.

1. I consider that the ordinary reasonable reader could consider this imputation to be defamatory. Although the word "ungratefully" can be a relatively mild rebuke, it carries with it a serious sting in the present context where Rosleigh was reliant on the goodwill of others. The matter complained of gives some prominence to the efforts and time spent by Mr Bakir and Mr Tampoe to defend Schapelle. For Rosleigh to terminate their services "ungratefully" and for no good reason, if made out, could, in my view, result in ordinary members of the community thinking less of her.

1. Mr Dawson also submitted that there is nothing in the book to support the notion that the termination of their services was "for no good reason". Indeed Rosleigh is portrayed as believing that Mr Bakir was seeking to make money from the Corby family. The Author narrates the story of Mr Bakir suggesting, in the course of giving an interview to Alan Jones, that the prosecution had approached the defence for a bribe. Ultimately Mr Bakir retracted the allegation. This alone was sufficient to provide ample justification for Rosleigh to terminate his services. As for Mr Tampoe, the Author depicted his invention of the so-called "baggage-handler defence" as counter-productive, if not highly detrimental, to Schapelle's defence.

1. Mr Smark submitted that although there was material in the matter complained of which would create the impression that some of the tactical decisions and conduct of Mr Bakir and Mr Tampoe were in error, it was a jury question whether the imputation was conveyed by the matter complained of.

1. For the reasons submitted by Mr Dawson, I do not consider that this imputation is capable of being conveyed by the matter complained of. Accordingly this imputation ought not go to the jury.

Orders

1. The following imputations are struck out:

(1)   In proceedings 340887 of 2012 (brought by Mercedes), (b), (c), (d) and (h).

(2)   In proceedings 348205 of 2012 (brought by Rosleigh), (b), (d), (e), (f) and (h).

(3)   In proceedings 348219 of 2012 (brought by Michael Jnr), (a), (b) and (c).

1. Leave to replead is granted in respect of:

(1)   Mercedes' imputation (h).

(2)   Rosleigh's imputation (b).

(3) Michael Jnr's imputation (a), (b) and (c).

**********

Decision last updated: 10 April 2013