David Holmes v TCN Channel Nine Limited

[2007] NSWDC 137

CITATION:	David Holmes v TCN Channel Nine Limited [2007] NSWDC 137
HEARING DATE(S):	22 June 2007
JUDGMENT DATE:	22 June 2007
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Defendant’s application to strike out imputations (i) and (xiii) dismissed; 2. Imputation (xv) struck out with leave to replead with particulars of identification; 3. Costs reserved.
CATCHWORDS:	Defamation - imputations - pleading - form and capacity
LEGISLATION CITED:	Defamation Act 2005, s8 Defamation Act 1974, s9(2) Civil Procedure Act 2005, s56(1) Uniform Civil Procedure Rules 2005, Pt 14.30, 14.31(2), 14.32, 14.33, 14.34(2), 14.37(2), 14.38(1), 14.39(a), 14.40, Pt 15.19, 15.21 District Court Rules, Pt 49
CASES CITED:	Aboriginal Nations Pty Ltd v John Fairfax Publications Pty Ltd & West Australian Newspapers Limited [1998] ACTSC 125 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Chakravarti v Advertiser Newspapers Limited (1998) 154 ALR 294 Cassidy v Daily Mirror Newspaper Ltd [1929] KB 331 Dare v Pulham (1982) 148 CLR 658 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 Feros v West Sydney Radio Pty Limited & Anor (NSW Court of Appeal, unreported) Gardener v Nationwide News Pty Ltd [2007] NSWCA 10 General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125 Harvey v John Fairfax Publications Pty Limited [2005] NSWCA 255 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Hough v London Express Newspaper Limited [1940] 2 KB 507 Icon International Communications Pty Ltd & Ors v Nationwide News Pty Ltd & Ors [2005] ACTSC 110 John Fairfax & Sons Pty Ltd v Blake [2001] 53 NSWLR 541 John Finnin v John Fairfax Publications Pty Ltd & Anor (Supreme Court of NSW, 18 April 2007, unreported) Kutasi v Melbourne University Publishing Ltd t/a Melbourne University Press [2007] NSWDC 7 Mahomed v Channel Seven Sydney Pty Limited [2006] NSWCA 213 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669
PARTIES:	Plaintiff: David Holmes Defendant: TCN Channel Nine Limited
FILE NUMBER(S):	1837 of 2007
COUNSEL:	Plaintiff: M McCall Defendant: M Richardson
SOLICITORS:	Plaintiff: Bourke Love McCartney Young Defendant: Johnson Winter & Slattery Lawyers

1. The plaintiff by way of Statement of Claim brings proceedings for damages for defamation following the broadcasting throughout Australia of material on “A Current Affair” on 10 November 2006. The plaintiff has pleaded imputations allege to arise from the broadcast and the defendant seeks to challenge a number of these.

2. The subject matter of the broadcast is the living conditions of the Seabreeze Caravan Park at South Ballina. Tracey Grimshaw opens the programme by saying that while a life by the sea is a dream for most Australians, a group of elderly residents of this caravan park say their life has become hell, and that the owners of the park they live in are waging a campaign or violence and threats to get rid of them. A tenant is shown saying “If I ever knew anything about hell this would be it, absolutely… and I know who the devil is.” Reporter David Margan then says as a voiceover, while the plaintiff is shown, “… and this is their nemesis, park owner Glen Wright, ably assisted by wife Dolores and hired hand and invalid pensioner, David Holmes.” The person who is identified as Glen Wright is then shown grabbing the camera while the cameraman protests.

3. Unfortunately, the person so identified is not Mr Wright. It is conceded by the defendant that the person who is identified as Mr Wright is in fact David Holmes, the “hired hand” referred to. This wrong identification has created some pleading problems.

4. However, before I resolve these pleading problems, I should first consider the appropriate test to apply to the consideration of the form and capacity of imputations for proceedings commenced pursuant to the Defamation Act 2005 (NSW) as opposed to the Defamation Act 1974 (NSW). Should the meaning of the defamatory matter now be pleaded in accordance with the more liberal approach at common law (as suggested by P George in Defamation Law in Australia, Lexis Nexis, Sydney, 2006 at paragraph 9.6), or does the use of the word “specify” in Part 14.30 of Uniform Civil Procedure Rules 2005 (NSW) mean that principles about specificity, including striking out imputations because of asserted errors in form, should be applied? Does the reference in section 56(1) Civil Procedure Act 2005 to the need for proceedings to be approached with the view of achieving “just, quick and cheap” resolution mean that the Court should be reluctant to entertain lengthy interlocutory applications in defamation matters of the kind deplored by Kirby J in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [21] and [22]?

5. In Kutasi v Melbourne University Publishing Ltd t/a Melbourne University Press [2007] NSWDC 7 I expressed the view that as imputations are no longer the cause of action in New South Wales I should approach such issues with the degree of flexibility considered to be appropriate for common law imputations by the High Court in Chakravarti v Advertiser Newspapers Limited (1998) 154 ALR 294 at [21] per Brennan CJ and McHugh J (noting also Kirby J, at [144], deploring the “muddle” arising from “over-nice attention to the pleading of imputations”). However, it has been submitted to me that in unreported decisions in the Supreme Court such as John Finnin v John Fairfax Publications Pty Ltd & Anor (Supreme Court of NSW, Nicholas J, 18 April 2007, unreported), arguments on form, capacity and defamatory meaning have proceeded without any change, because of the approach taken in that court to the reference to the need to “specify” the imputations in Part 14.30. The first issue I should consider is the correct approach to take to questions of form, capacity and defamatory meaning under the new legislation.

6. As this application was listed this morning prior to a part-heard hearing and there was no time for an ex tempore judgment, I heard counsel’s submissions and made orders but indicated I would hand down written reasons by email to counsel for the parties.

7. Part 49 District Court Rules, which was repealed on 17 February 2006, provided that the statement of claim should “specify each imputation on which the plaintiff relies” and Part 14.30 of the Uniform Civil Procedure Rules 2005, are in more or less identical terms. However, the notes to Part 14.30 also state that the test for striking out imputations is the test in General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125, a case referred to in very few judgments on imputation arguments in New South Wales prior to the enactment of the Defamation Act 2005.

8. In addition, as the footnotes to Part 49 District Court Rulesnoted, applications to strike out imputations were not restricted to cases where the plaintiff’s imputation was manifestly groundless but extended to cases where the imputation was not sufficiently particularised or asserted to be ambiguous. This resulted in applications to strike out imputations which used the actual words in the matter complained of, contained words said to be ambiguous or “weasel’ words (eg ‘wrongful’, ‘corrupt’), were in the passive voice, were rhetorical (eg ‘unfit’) or did not contain an epexegetic explanation of the precise conduct referred to in the matter complained of. These arguments relate to the form rather than to the capacity of imputations. Some of these principles are still referred to in the notes to Part 14.30 (at Part14.30.55).

9. The important difference between the old and new legislation is that section 8 Defamation Act 2005 makes the publication the cause of action whereas under section 9(2) Defamation Act 1974 each separate defamatory imputation gave rise to a cause of action. As the Uniform Civil Procedure Rules make clear, the defences are pleaded to the “matter” for the defences of absolute privilege (Part 14.34(2)), qualified privilege (Part 14.37(2)), comment (Part 14.38(1)), innocent dissemination (Part 14.39(a)) and triviality (Part 14.40). However, imputations remain of particular importance in the defences of justification and more particularly partial justification: Part 14.31(2) and Part 14.32 and 33. Where there is a defence of partial justification the defendant may justify some only of the imputations pleaded by the plaintiff, and/or plead imputations which the plaintiff has not pleaded at all. Clearly there will be a need for specificity of some kind in such a case.

10. Defamation particulars are but one kind of particulars which are the subject of Part 15, and there is no provision (apart from Part 15.19 and Part 15.21) requiring any greater specificity than is usual for the provision of particulars. Particulars can be added to, or dropped, at any time during proceedings, including up to the time of giving of judgment: Dare v Pulham (1982) 148 CLR 658 at 664. However, the expectation in modern pleadings is that the pleadings and particulars will be carefully drafted so as to give the opposing party a clear picture of the case he has to meet.

11. The fact of this case are an ideal vehicle for considering the need for specificity where truth is unlikely to be pleaded; given the concession by the defendant that it has erroneously identified the plaintiff as the owner of the Park, a defence of justification in relation to these imputations seems improbable.

12. The requirement for precision in pleading imputations in common law jurisdictions such as the Australian Capital Territory was to permit a greater degree of flexibility because the imputation was not the cause of action: Aboriginal Nations Pty Ltd v John Fairfax Publications Pty Ltd & West Australian Newspapers Limited [1998] ACTSC 125 at [23] – [26]. The striking out of an imputation should not be undertaken lightly and judgments routinely recite that this should be done with great caution; see for example Icon International Communications Pty Ltd & Ors v Nationwide News Pty Ltd & Ors [2005] ACTSC 110 at [4] and [13] per Crispin J. These decisions rarely refer to the General Steel test and generally prefer to advert to whether a particular imputation was ‘reasonably so capable’ of being conveyed to the hypothetical ordinary reasonable reader/listener, or whether the imputation was ‘strained, forced or utterly unreasonable’ (Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 170). The Practice Notes to Part 14.30.20 refer to the test in Marsden as being “particularly the case” in relation to actions brought under the old legislation but add “contrast s.8 of the Defamation Act 2005, which provides a single cause of action for the same publication.”

13. The plaintiff and defendant’s counsel both submit to me, in accordance with the Notes to Part 14.30.45, that the test for the striking out of imputations is the General Steel test, namely that the case for the imputation is so obviously untenable that it cannot possibly succeed or is manifestly groundless. The General Steel test was not applied in imputation arguments under the old Act if the imputation was pleaded as arising pursuant to the natural and ordinary meaning, although it was applied to particulars of extrinsic facts: Anderson v Mirror Newspapers (1986) 6 NSWLR 99 at 103D. The General Steel test is referred to by Nicholas J in John Finnin v John Fairfax Publications Pty Ltd & Anor at [3].

14. The real problem in relation to the arguments before me is that the issue is not capacity but form, ie the degree to which a plaintiff is required to plead imputations with precision, and on this issue the General Steel test is of less assistance because the question really becomes one of adequacy of pleadings.

15. The rules for pleadings and particulars set out in the Civil Procedure Act 2005 should be read in the light of the provisions of section 56(1) concerning “just, quick and cheap”. One of the reasons for the reform of defamation law was the cost and delay caused by drawn-out imputations arguments was such that the novelty of the imputation being the cause of action (under the Defamation Act 1974) had to be abandoned. It is hard to imagine the legislators’ intention in abolishing the imputation as a cause of action was to make no difference to the way in which imputations must be pleaded.

16. On the issue of specificity concerning the form of imputations, whether the action is brought under the 1974 or the 2005 Act, there can be no more insightful statement than that of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 that considerations of practical justice rather than philology should prevail, and that an imputation need not be any more specific than the matter complained of. Gleeson CJ pointed out that the imputation “the plaintiff was an abortionist” was wrongly struck out at first instance in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 “because it forced the plaintiff into pleading with greater precision” (at 148) than the actual publication. In elevating complaints about the form of imputation to objections based on “philology”, Gleeson CJ was being generous. There is no philological basis for any of the form objections taken to imputations, and references to works on philology or semiotics (other than the dictionary, if that can be called a philological work) are noticeably absent from judgments on the topic.

17. Although Gleeson CJ said in Drummoyne, in the clearest of terms, that Hepburn remained the law, arguments about lack of specificity had been a feature of defamation practice notwithstanding Hutley JA pointing out (in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 671, concerning imputations in the passive voice) that “there are no forms of imputations”. Gleeson CJ’s famous example of a defamatory publication needing no specificity (“X is disgusting”) is generally distinguished as being an extreme example of a publication not requiring specificity.

18. A court hearing applications brought under the 2005 Act should be cautious not to strike out imputations which are asserted to be pleaded with insufficient precision, in part because of the new legislation, but also because the principles enunciated by the Court of Appeal in Hepburn, Sergi and Drummoyne should be followed. The new legislation in fact encapsulates the principles so clearly explained by Gleeson CJ in Drummoyne. If the matter is the cause of action, a complaint that the imputation does not by epexegesis include all necessary elements, or is pleaded in the passive voice, or contains the actual word in the matter complained of, should be viewed in light of the fact that the matter, not the imputation, is now the cause of action. The court should not seek to “straitjacket” the plaintiff (to use Hutley JA’s apt phrase) into a form the plaintiff has not sought to plead.

19. The approach to take under the new legislation thus is a difference of a very small kind when one reads Sergi, Hepburn and Drummoyne.

20. Having noted the submissions of the parties and determined the manner in which imputations pleaded under the Defamation Act 2005 need to be considered, I now turn to the issues in dispute in this application. I note the parties resolved all but two of the disputed issues and that I have made orders in relation to imputations (i), (ii), (iv), (v) and (xii) permitting the plaintiff to replead. An objection is taken to the revised imputation (i), as well as to imputations (xiii) and (xv) on the grounds of form, and I will consider each of these in turn.

Imputation (i): The plaintiff is Glen Wright, the owner of the Sea Breeze Caravan Park at South Ballina (“the Park”), who has made life for the tenants of the Park a living hell.

21. The objection taken to this imputation is that it uses the words of the matter complained of. This objection has been taken to imputations since it was first explained by Hunt J in Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, and is still referred to in Part 14.30.55 Practice Notes as a basis for striking out imputations.

22. In Harvey v John Fairfax Publications Pty Limited [2005] NSWCA 255 at [118] Hunt A-JA criticised the use of words taken from the matter complained of rather than the pleading of an imputation identifying the act or condition “which usually has to be distilled or inferred from those words”. However, the Court of Appeal has indicated in other decisions that as long as the use of the exact words does not “lead to any obscurity” (Mahomed v Channel Seven Sydney Pty Limited [2006] NSWCA 213 at [29] per McColl JA) such pleadings can be permitted. In John Fairfax & Sons Pty Ltd v Blake [2001] 53 NSWLR 541 Hodgson JA (at [52] – [54]) referred to Hepburn and to Drummoyne when holding that there were instances where a pleader could use the words of the matter complained of. Each case must turn on its own facts, as Hodgson JA went on to point out. It is not an inflexible rule that the words of the matter can never be used and the fact that the word “hell” occurs several times in the matter complained of does not automatically prevent the plaintiff from using it in an imputation.

23. However, there is a more fundamental reason why this objection should be rejected, and that is because the precise phrase “living hell” does not appear in the matter complained of. What is said is in the introduction is that the tenant’s lives had “become hell”. One of the tenants says it is like living in a prison camp and another of them says “if I ever knew anything about hell this would be it, absolutely… and I know who the devil is.”

24. The phrase “living hell” is in fact a distillation of these references and not a literal repetition of the actual words used in the matter complained of.

25. This is a good example of the absurdity that would prevail if a party were not able to use the words from the matter complained of. Where the allegation is that the Park was hell and the plaintiff was the devil, it is hard to see how the plaintiff could distil a meaning that did not refer specifically to the word “hell”. It is to be hoped that objections of this kind will lessen under the new legislation.

26. The objection to the form of imputation (i) is rejected.

Imputation (xiii): The plaintiff erected a sign in the Park which referred to the tenants as “permanent low life”

27. The objection to this imputation is that the words of the matter complained of refer to only one tenant.

28. The matter complained of shows a sign that the Park owner had put up which says:

“Attention: Permanent lowlife – you have been witnessed spitting on the walls and floors of the toilet cubicles. Your identity is known.”

29. The word “lowlife” is a collective noun, like “sheep”. Reasonable minds may differ as to whether or not one or more of the tenants is accused of spitting. Again, this is a good example of an imputation that a court should exercise caution about striking out. This is a question for the jury to determine.

30. The objection to the form of imputation (xiii) is rejected.

Imputation (xv): The plaintiff was hired by Glen Wright to assist in the mistreatment of tenants of the Park.

31. This imputation is a problem because all the other imputations are based upon the defendant’s erroneous identification of the plaintiff as Glen Wright, the owner of the Park. The defendant submits, quite reasonably, that the plaintiff cannot plead imputations saying he is Glen Wright at the same time as an imputation saying he is David Holmes because the ordinary reasonable person who watches the broadcast would think the plaintiff was one or the other, but not both people.

32. The defendant submits that the plaintiff cannot plead inconsistent imputations and that he is put to an election as to whether to plead his case as being (wrongly) identified as Glen Wright or as being (correctly) identified as David Holmes. The defendant draws to my attention the statement by Gleeson CJ in Drummoyne Municipal Council at [148] where his Honour the Chief Justice states that Feros v West Sydney Radio Pty Limited & Anor (NSW Court of Appeal, 22 June 1982, Moffitt P, Reynolds and Samuels JJA, unreported) is “authority for the proposition that a plaintiff may not in pleading allege two inconsistent or contrary imputations, affecting the capacity of the imputation pleaded to convey a defamatory meaning.”

33. It is hard to see why this should be the case. If the matter complained of asserted that a merchant did not deliver goods, and went on to say that the goods were not of merchantable quality, why should the plaintiff be put to an election as to which of these factually inconsistent imputations he should plead?

34. An examination of Feros shows that the imputations pleaded in this judgment were not in fact inconsistent with each other and there is no discussion of this principle in this judgment at all, which makes the reference to it as authority for the proposition in Drummoyne somewhat surprising.

35. However, whether or not a plaintiff can plead inconsistent imputations is not really the issue here. The difference is that to those people who actually knew the plaintiff (and therefore knew he was not Glen Wright) what was published about the plaintiff was this imputation. Thus this is an imputation which would be conveyed to the ordinary reasonable reader with knowledge of an extrinsic fact, namely that the plaintiff had been wrongly identified as Glen Wright and was in fact David Holmes.

36. As the authors of Australian Defamation Law and Practice point out at [6035], it will often be the case that the facts and matters relied upon by witnesses to identify a plaintiff will be at variance with the description in the matter complained of. In Hough v London Express Newspaper Limited [1940] 2 KB 507 the defendant’s newspaper, writing about the boxer Frank Hough, noted that his “curly-headed wife sees every fight”. His wife, who did not have curly hair, sued for defamation on the basis that persons who knew her as someone who claimed to be his wife would consider her a dishonest and immoral woman. In Anderson at 109F Hunt J noted and endorsed criticisms of Hough and of Cassidy v Daily Mirror Newspapers Ltd [1929] KB 331, but these decisions have been referred to without disapproval by the Court of Appeal as recently as in Gardener v Nationwide News Pty Ltd [2007] NSWCA 10.

37. The present case is a typical example of erroneous identification. All that is unusual is that the broadcast published about the plaintiff, both as Glen Wright (to people who do not know him and just saw the broadcast) and as, David Holmes, his true identity (to people who saw the broadcast but knew who he was) imputations arguably capable of being defamatory both in the natural and ordinary meaning and when the extrinsic facts are added. The plaintiff is entitled to plead this imputation, but it should be pleaded with the extrinsic facts as to his identity.

38. The plaintiff indicated that if I were to so rule, he would seek leave to amend to plead this imputation as arising to those persons with knowledge of the plaintiff’s identity. Accordingly, the defendant’s objection to the imputation being pleaded in its natural and ordinary meaning having been made out, I strike out this imputation but grant leave to the plaintiff to replead the imputation in this fashion.

39. No submissions were made to me concerning costs, so I shall reserve the question of costs.

40. I make the following orders in addition to the orders made earlier this morning:

1. Defendant’s application to strike out imputations (i) and (xiii) dismissed.

2. Imputation (xv) struck out with leave to replead with particulars of identification.

3. Costs reserved.