Fleming v Advertiser-News Weekend Publishing Company Pty Ltd and Advertiser Newspapers Pty Ltd
[2012] SASC 58
•13 April 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
FLEMING v ADVERTISER-NEWS WEEKEND PUBLISHING COMPANY PTY LTD AND ADVERTISER NEWSPAPERS PTY LTD
[2012] SASC 58
Judgment of The Honourable Justice Peek
13 April 2012
DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA
DEFAMATION - JUSTIFICATION - TRUTH - TRUTH AS TO PART
DEFAMATION - ACTIONS FOR DEFAMATION - PARTICULARS - OF STATEMENT OF DEFENCE OR PLEA - JUSTIFICATION
Defamation - plaintiff/appellant - a priest - asserts that publications made by the defendants allege sexual activity between the plaintiff and others in the course of which the plaintiff committed offences of unlawful sexual intercourse. Defendants deny the imputations pleaded and in the alternative plead justification and the defence of contextual truth.
Appeal against the orders of a Master refusing to strike out parts of the defence - whether the words 'sexual intercourse' in the plaintiff's pleadings mean only penile/vaginal intercourse - whether the defendant may plead allegations of oral sexual intercourse in justification of the imputations of the plaintiff - whether there was an error in failing to strike out "Polly Peck" pleadings in the amended defence - whether the correct approach was taken to the plaintiff’s application to strike out the defendants' pleadings of contextual truth.
Held: The grounds of appeal against refusing to strike out parts of the defence should be rejected.
Appeal against the order of a Master permitting the use of pseudonyms in pleadings - whether the respondents should supply to the appellant the names of the persons to whom they have referred by the use of pseudonyms.
Held: Absent matters of public interest immunity, the general rule is that a party should only be permitted to use pseudonyms in pleadings where the correct names of those persons are supplied to the other party.
Defamation Act 2005 (SA) s 24, referred to.
Advertiser-News Publishing Co Ltd v Mannock (2005) 91 SASR 206; Jackson v John Fairfax & Sons Ltd and Another [1981] 1 NSWLR 36; Newnham v Davis (No 2) [2010] VSC 94; Hepburn v TCN Channel Nine Pty Ltd (1984) 1 NSWLR 386, applied.
R v Savvas (1989) 43 A Crim R 331; John Fairfax Group Pty Ltd v Local Court of NSW (1992) 26 NSWLR 131; R v Gibson (1991) 57 A Crim R 322; Jarvie v Magistrates Court of Victoria [1995] 1 VR 84; R v Smith (1996) 86 A Crim R 308, considered.
FLEMING v ADVERTISER-NEWS WEEKEND PUBLISHING COMPANY PTY LTD AND ADVERTISER NEWSPAPERS PTY LTD
[2012] SASC 58Civil
Peek J. Appeal against orders of Judge Lunn, a Master of this Court, refusing to strike out parts of a defence and permitting the use of pseudonyms in pleadings in an action for defamation.
Definitions and abbreviations in this judgment
For the sake of clarity, I will refer to the parties as the plaintiff and defendants (rather than appellant and respondents) and I note and adopt the definitions used by Judge Lunn which were as follows:
“The plaintiff” is the plaintiff, John Fleming;
“The defendant” is both of the named defendants;
“The Statement of Claim” is the Third Statement of Claim filed on 22 December 2010 (FDN28);
“The Defence” is the Fifth Defence filed on 10 May 2011 (FDN34);
“Jane, Jenny and Richard” are the pseudonyms used in the Defence for three persons with whom it is alleged in that Defence that the plaintiff carried on sexual activities;
“Wendy” is the pseudonym for Richard’s wife.
Background to the present appeal
The plaintiff, who was an Anglican priest, sues the defendants for damages in defamation. It is common ground that on five separate occasions between August 2008 and August 2009 there occurred five publications by the first defendant in “The Sunday Mail”, four of which were published by the second defendant on its website.
The plaintiff asserts that these publications allege sexual activity (or investigations relating to such allegations) between the plaintiff and two females and one male and, in the course thereof, “the commission by the plaintiff of criminal offences of unlawful sexual intercourse”. However, it is clear that the plaintiff, in framing his case, has pleaded only a narrow imputation and abstained from complaining of a larger number of imputations that would arise on the publication as constituted by the accumulation of the five articles.
By paragraph 14 of the amended statement of claim the plaintiff pleads:
14In their natural and ordinary meaning, the words in the first to the fifth publications published by the first defendant and the first to the fourth web publications published by the second defendant meant and were understood to mean:
(1) that the plaintiff had committed criminal offences of unlawful sexual intercourse; alternatively
(2) that there were reasonable grounds to suspect that the plaintiff had committed criminal offences of unlawful sexual intercourse.
As Judge Lunn observes:
[5]The statement of claim pleads the words complained of in each of the nine publications. In broad terms they are that in the 1970’s the plaintiff had a sexual involvement with two girls, one of whom was under age. The one who was under age was named as “Jane”. The nature of the sexual involvement was not stated. There was no express reference to oral sex, masturbation or homosexual activity.
[6]The plaintiff has not pleaded any other imputations alleging criminal offences of indecent assault, indecent interference or gross indecency, or of immoral sexual impropriety. His counsel conceded in the course of argument that the claim would fail if the imputation based on the criminal offence of unlawful sexual intercourse was not established.
The defendants deny the imputations pleaded by the plaintiff and also in the alternative plead justification and the defence of contextual truth.[1]
[1] The provisions of the Defamation Act 2005 (SA) apply to these proceedings.
A previous appeal
A previous application of a similar kind was decided by Judge Burley on 18 August 2010. Both parties then appealed to Gray J against Judge Burley’s orders. However, in the light of a number of amendments being made to the pleadings, Gray J decided not to determine the appeal but rather to send the matter back to a Master to determine the applications by the plaintiff in relation to the amended defence which is FDN34. Judge Lunn heard those proceedings and the present appeal is against the orders then made by his Honour.
In the course of his reasons Judge Lunn stated:
[8]… No reference was made in the submissions before me to the reasons of Judge Burley (FDN15) except for one paragraph on a subsidiary point. I have not read the reasons of Judge Burley for the purposes of determining FDN33 and I approach it independently of any relevant views expressed by Judge Burley on earlier versions of the pleadings.
I propose to adopt that same approach when reviewing the judgment under appeal.
The orders sought and the grounds of the present appeal
In the notice of appeal the plaintiff asserts that:
(T)he “appeal is against portions of the judgment whereby the learned Master:
1Declined to strike out the following paragraphs of the Amended Defence [specified paragraphs then follow]
2Declined to make any order for costs on the application in favour of the appellant and in fact ordered that the appellant pay to the respondents 25% of their costs of the application.
It is to be noted that while the first complaint is later made the subject of a number of grounds of appeal, the second complaint, which would appear to be a free-standing complaint as distinct from an order simply being sought consequential upon the success of the appeal on other grounds, is not made the subject of any ground of appeal and nor was any argument addressed to the matter by senior counsel for the appellant.
In his notice of appeal the appellant sought the following orders:
1 That the appeal be allowed.
2 That the paragraphs of the amended defence set out above be struck out.
3 The appellant have costs of the application and the appeal.
Originally there were seven stated grounds of appeal but grounds 4, 5 and 6 were withdrawn during the course of the hearing before me. I now address the remaining grounds of appeal 1, 2, 3 and 7.
Ground 1 of appeal – the plaintiff’s pleaded imputation
The essence of the plaintiff’s argument, both before Judge Lunn and on appeal, was that the words “sexual intercourse” in the plaintiff’s pleadings mean only penile/vaginal sexual intercourse and do not mean, and do not include, cunnilingus or fellatio. The plaintiff further argues that it therefore follows that the defendant cannot rely upon allegations of oral sexual intercourse in justification of the imputations of the plaintiff.
The decision of Judge Lunn, and the portion of his reasons to which this ground relates, is as follows:
[9]The plaintiff contended that his pleaded imputation was based on the criminal offence of unlawful sexual intercourse contained in s 55 of the Criminal Law Consolidation Act 1935 (“CLCA”) as it existed at the times of the alleged sexual involvements referred to in the publications. As the alleged victim Jane had to be under the age of 17 years at the time of any such offence, the plaintiff’s imputation meant such an offence must have been committed before 9 November 1973. Thus the relevant period (“the relevant period”) for the plaintiff’s imputation is 1 January 1970 to 9 November 1973. The defendant contended that the unlawful sexual intercourse pleaded in the imputation could reasonably be understood to extend to other sexual activities such as oral sex, indecent assault or interference or gross indecency. The plaintiff argued that this was untenable and hence the pleas of justification in terms of acts of oral sex and gross indecency should be struck out.
[10]There is a difficulty about the plaintiff’s pleading which was not directly addressed in the course of submissions. In the relevant period up to 16 November 1973 the then s 55 of the CLCA created an offence which was entitled in the Act as it then stood as “defilement of person between thirteen and seventeen years of age” and which was then commonly known as “unlawful carnal knowledge” (“carnal knowledge”). [Footnote 2: That offence of carnal knowledge would appear to have been confined to vaginal or anal penetration. I can find no authority suggesting it could encompass oral intercourse. Howard “Criminal Law” 4th Ed at 163-4 implies that the modern expanded definitions of sexual intercourse have broadened its scope beyond carnal knowledge.] The phrase “unlawful sexual intercourse” did not appear anywhere in the CLCA at that time. Section 55 referred to carnally knowing a person under the age of 17. This meant vaginal sexual intercourse. [Footnote 3: The non-exclusive definition s 5 of that Act extended it to anal intercourse, but that is not relevant here.] Section 57(b) of the CLCA, as it then stood, created an offence of indecent interference with a person under 17 regardless of consent, and s 58 created an offence of committing an act of gross indecency with a person under 16 regardless of consent.
[11]The Criminal Law Consolidation Act Amendment Act 1976 (No 83) repealed the previous s 55 and 57(b) (but not s 58). It introduced into s 5 of the CLCA a new definition of “sexual intercourse” which extended it to oral intercourse. It enacted a new s 49(3) to create an offence which was entitled in the Act as “Unlawful sexual intercourse” in respect of a victim between 12 and 17 years of age, irrespective of consent. In a number of places that amending Act replaced the phrase “carnal knowledge” with “sexual intercourse”.
[12]The upshot of this historical survey of the CLCA is that in the relevant period there was no criminal offence known as unlawful sexual intercourse. There was then an offence of carnal knowledge, but it materially differed from the subsequent offence of unlawful sexual intercourse in that it did not extend to oral sex. Hence there is an ambiguity in the pleading of the plaintiff’s imputation as to whether it refers to the offence of carnal knowledge as it existed in the relevant period, or whether it refers to the subsequently enacted and broader offence of unlawful sexual intercourse as if it applied in the relevant period. This ambiguity makes it reasonably arguable that acts of oral intercourse are encompassed within the plaintiff’s imputation concerning unlawful sexual intercourse. Unless the plaintiff further amends the imputation, it will be for the trial Judge to resolve the point. However, on this application it means that the pleading of oral intercourse can properly stand as a particular of justification of the plaintiff’s imputation.
Ground 1 of appeal appears as follows:
1The learned Master erred in confining the appellant’s pleaded imputation to conduct specifically constituting an offence pursuant to s 55 of the Criminal Law Consolidation Act 1935 (“CLCA”) as it existed on and before 9 November 1973 (Reasons [9]) and thereby confused the imputation pleaded, (“the alleged meaning”), here, engaging in sexual intercourse (having sex) with a minor, with what must be proved to justify such an imputation in this instance (Reasons [10–12]).
This appeal proceeds upon the basis that the plaintiff has not applied to amend or alter the relevant imputation.
During the argument of the appeal, senior counsel for the plaintiff put in different ways and formulations his argument that the words “sexual intercourse” in the plaintiff’s pleadings mean only penile/vaginal sexual intercourse and that it therefore follows that the defendant cannot rely upon allegations of oral sexual intercourse in justification of the plaintiff’s imputation. In pursuance of this theme, he stated that the plaintiff has previously eschewed in open Court, and continues to eschew, reliance on any meaning of the publication other than penile/vaginal sexual intercourse. He further stated that if the trial Judge did not find that the publication meant penile/vaginal sexual intercourse then the plaintiff could not succeed.
Counsel for the respondent submits that the above analysis by Judge Lunn is correct. He submits that:
·the imputation of “criminal offences of unlawful sexual intercourse” is said to arise in its natural and ordinary meaning;
·it is not anchored to any specific statutory definition;
·the ordinary reasonable reader would not know the technical elements of the offence of unlawful sexual intercourse as it appertained in the 1970’s as distinct from the present time when the publication occurred; and
·the plaintiff’s assertion that “the imputation as pleaded is of sexual intercourse (with a minor) as opposed to cunnilingus or fellatio” is incorrect in that neither by reference to a particular sex act nor by reference to a statutory offence comprising a particular sex act does the plaintiff’s imputation limit itself to vaginal sexual intercourse.
In my view, the analysis of Judge Lunn and that of the defendants is plainly correct. In particular, I agree that it is at least reasonably arguable, and therefore a matter for the trial Judge, that the ordinary reasonable reader would consider that the term “having sex” as used in the present case in the context of committing criminal offences of unlawful sexual intercourse, may reasonably be argued to include oral sexual intercourse.
I consider that talk by senior counsel for the plaintiff of “eschewing any meaning of sexual intercourse other than penile/vaginal sexual intercourse” is none to the point. As the pleadings presently stand, they objectively leave open the possibility of such a plaintiff relying on a meaning of sexual intercourse other than penile/vaginal sexual intercourse; that is to say, oral sexual intercourse.
Of course, if the plaintiff were to amend so as to actually plead “penile/vaginal sexual intercourse” and thereby positively restrict his cause of action to an imputation of penile/vaginal sexual intercourse, that would be a different matter. However this is a course that the plaintiff studiously avoids taking and, as stated above, this appeal has proceeded upon the basis that the plaintiff has not applied to amend or alter the relevant imputation.
I reject ground 1 of appeal.
Ground 2 of appeal – Polly Peck pleading
Ground 2 of appeal appears as follows:
2The learned Master erred in failing to strike out paragraphs 11, 25 and 26 of the amended defence as allowable “Polly Peck” pleadings, or alternatively in failing to strike out such pleas as merely restating pleas of justification already appearing in paragraphs 7, 21 and 22 of the amended defence (Reasons [20-23]).
In addressing the matter of a “Polly Peck” plea, Judge Lunn stated:
[21]The law in this State is that such a Polly Peck plea can only be no more than a shade or a nuance of the meaning pleaded by the plaintiff, and so in substance the alternative meaning raised by the defendant in the Polly Peck pleas must be close to, or the same as, the meaning pleaded by the plaintiff.
His Honour accompanied this statement with a footnote reference to the decision in “Advertiser-News Publishing Co Ltd v Mannock (2005) 91 SASR 206 at 219”. At that page reference (and on to the following page) Doyle CJ stated:
[72]I doubt whether the propositions formulated by Charles JA are inconsistent with the observations of Brennan CJ and McHugh J in Chakravarti about pleading a Polly Peck defence, because to the extent that a plaintiff may be permitted to depart from the meaning pleaded, fairness requires that the defendant be permitted to anticipate and deal with the alternative meaning. In that context the expression “alternative meaning” is something of a misnomer. An alternative meaning that can be pleaded and justified by the defendant can be no more than a shade or nuance of the meaning pleaded by the plaintiff, and so in substance (as it seems to me) the alternative meaning must be close to or the same as the meaning pleaded by the plaintiff.
…
[74]… in the present case it suffices to say that the alternative meaning pleaded by the defendant is a meaning on which Dr Mannock would not be entitled to rely at trial and so cannot be pleaded and justified by the defendant as an alternative meaning. The meanings are different for the reasons that led me to conclude that the challenged particulars could not prove the truth of the imputation of which Dr Mannock complains. The “common sting” on which the defendant relies is created by removing or ignoring an aspect of the meaning alleged by Dr Mannock, or by raising the meaning alleged by Dr Mannock to a higher level of generality so as to change the alleged meaning from a meaning with an area of overlap with the defendant’s meaning to a meaning that is the same. While Polly Peck might contemplate that approach, Australian authority is to the contrary.
[75]While it is not strictly necessary to do so for the purposes of the present case, I think it appropriate to say that I respectfully agree in principle with the views expressed by Brennan CJ and McHugh J about the pleading of a Polly Peck defence, subject to the limited exception recognised by Charles JA.
[76]Once the plaintiff pleads a meaning on which the plaintiff relies, that pleading will identify the meaning of which the plaintiff complains, and delimit the boundaries within which the action is to be fought. Although it is the publication of the defamatory material that is the tort, the function of the pleading is to identify the field of inquiry at the trial.
[77]It appears to be generally accepted that once the plaintiff has pleaded the meaning on which the plaintiff relies, the plaintiff will not be entitled to seek a verdict on a different imputation. On that all members of the High Court agreed in Chakravarti. That is subject to the qualification that another defamatory meaning might be relied on by the plaintiff, when it is a mere shade or nuance of meaning, provided that the defendant suffers no prejudice, embarrassment or unfair disadvantage as a result: per Brennan CJ and McHugh J (at [24]-[25]), Gaudron and Gummow JJ (at [60]) and Kirby J (at [139] paras 3 and 4).
[78]Accordingly, there can be no unfairness to the defendant in not allowing the defendant to justify a meaning that, because it differs from the meaning pleaded by the plaintiff, the plaintiff would not be permitted to advance a trial. That is what the judge has decided here.
…
[82]… as a matter of principle, as a matter of fairness and having regard to the public interest in the efficient conduct of a trial, the law as stated by O’Connor LJ in Polly Peck should not be applied in this State. A preferable approach is that adopted by Charles JA in Hore-Lacy (at [53] and [54]). For those reasons I agree with the judge that the pleading of an alternative meaning should be struck out. I would dismiss the appeal against this aspect of the judge’s reasons.
(Emphasis added)
As stated above, senior counsel for the plaintiff during the argument of the appeal indicated that the plaintiff eschewed any reliance on any meaning of the publication other than penile/vaginal sexual intercourse and conceded that if the trial Judge did not find that the publication meant penile/vaginal sexual intercourse the plaintiff could not succeed.
But that is not the sense in which Doyle CJ in Advertiser-News Publishing Co Ltd v Mannock (and other judgments in similar vein) refer to a plaintiff being unable to succeed on a different meaning than pleaded. Such references are in fact addressed to an objective assessment of what has actually been pleaded by the plaintiff, the question being as to what, as a matter of construction, such a plaintiff would be entitled to rely upon at trial.
In the present case, for reasons similar to those considered in the context of ground 1 of appeal, such a plaintiff could, as a matter of construction, rely on a meaning of sexual intercourse other than penile/vaginal sexual intercourse; that is to say, he could rely upon a meaning of oral sexual intercourse. Again, I observe that if the plaintiff were to amend so as to actually plead “penile/vaginal sexual intercourse” and thus positively restrict his cause of action to an imputation of penile/vaginal sexual intercourse, that would be a different matter. It then could be said, consonant with the approach in Advertiser-News Publishing Co Ltd v Mannock, that for the defendant to take a Polly Peck approach and plead oral sexual intercourse would involve the prohibited practice of “raising the meaning alleged by (the plaintiff) to a higher level of generality so as to change the alleged meaning from a meaning with an area of overlap with the defendant’s meaning to a meaning that is the same.”
However, as again stated above, such an amendment would mean that if such a plaintiff were unable to prove at trial that the imputation is of “penile/vaginal sexual intercourse” as distinct from any other possible type of sexual intercourse his action would fail and, for whatever reason, this plaintiff abstains from making that amendment. That being so, he must face the consequences that his present pleadings leave open to the defendant the argument that the plaintiff’s imputation includes oral sexual intercourse and therefore the defendant is permitted to justify by pleading and proving that type of sexual intercourse.
Judge Lunn concluded:
[22]As stated above in relation to the particulars of justification, the problem here is what is the meaning of unlawful sexual intercourse in the plaintiff’s imputation? The plaintiff argued this point as if unlawful sexual intercourse is confined to carnal knowledge, but as I have stated above it is reasonably arguable that it can be the broader offence under the present s 49 of the CLCA.
[23] The crux of this plea is in paragraph 11.12 of the defence where it is pleaded:
In engaging in the conduct particularised … the plaintiff committed offences against the Criminal Law Consolidation Act 1952 namely indecent interference with a female under the age of 17 years (s 57(b)) and/or gross indecency (s 58).
Assuming that the conduct particularised does amount to offences under the former s 57(b) and s 58 of the CLCA (which I deal with elsewhere) I do not consider that such offences are so far removed from the wider meaning of unlawful sexual intercourse relied upon by the defendant so as to make a Polly Peck defence not reasonably arguable. Thus I do not strike out these paragraphs.
I agree. Out of an abundance of caution, I should emphasise that there is no doubt that Judge Lunn, in referring to “a Polly Peck defence” in the penultimate line of the passage in his judgment extracted immediately above, was clearly referring not to the defence adumbrated in the original case bearing that name but to what remains of that defence in the light of certain Australian decisions and particularly that of the judgment of Doyle CJ in Advertiser-News Publishing Co Ltd v Mannock to which Judge Lunn specifically referred earlier in his judgment.
I therefore reject ground 2 of appeal.
Ground 3 of appeal – contextual truth
Ground 3 of appeal appears as follows:
3The learned Master in determining whether the respondents’ pleaded contextual imputations could constitute contextual imputations for the purposes of s 24 of the Defamation Act 2005 applied an inappropriate test and erred in determining that the pleaded imputations of the appellant did not further harm the reputation of the appellant if the contextual imputations asserted by the respondents were made out.
Section 24 of the Defamation Act 2005 provides:
24—Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that—
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
In Jackson v John Fairfax & Sons Ltd and Another,[2] Hunt J stated:
It is perhaps appropriate that I should at this stage describe a little more fully the defence of contextual truth, introduced by the 1974 Act (s 16), and relied upon in this case. It has not, so far as I am aware, been the subject of any judicial or other exegesis, notwithstanding the years which have passed since that Act came into operation. Its origin was the (UK) Defamation Act, 1952, s 5; but its effect is much wider and its expression is more elaborate.
The defence of contextual truth accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence has been established in relation to that imputation; it asserts that the imputation pleaded by the defendant is also conveyed by the matter complained of (such imputation being called the contextual imputation); the defence then asserts that, even though the plaintiff’s imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant’s contextual imputation upon the plaintiff’s reputation that the publication of the imputation of which he complains did not further injure his reputation.
An easy example is the publication which describes the plaintiff (falsely) with having been charged with a criminal offence and which, by reason of additional material, also imputes (truly) that he is guilty of such offence. If the plaintiff sued and complained only of the imputation conveyed by the assertion that he had been charged with that offence, it would be open to the defendant, in accordance with s 16, to plead the contextual imputation that the plaintiff was in fact guilty of such an offence and that such contextual imputation was substantially true. Assuming that the contextual imputation also related to a matter of public interest or was published under qualified privilege, the defendant would succeed in the action complaining of the publication of the imputation pleaded by the plaintiff (and based upon the untrue assertion that he had been charged) if the jury were satisfied that, by reason of the substantial truth of the defendant’s contextual imputation, the untrue imputation pleaded by the plaintiff did not further injure his reputation.
In coming to that decision, the jury would be required to weigh or to measure the relative worth or value of the several imputations pleaded by both the plaintiff and the defendant. There is little doubt that in this example the jury would find that, by reason of the substantial truth of the contextual imputation pleaded by the defendant, that pleaded by the plaintiff did not further injure his reputation.
At the other end of the scale is the publication which describes the plaintiff (falsely) as a blackmailer and (truly) as having unlawfully remained in the country on an expired visa. If the plaintiff sued and complained only of the assertion that he was a blackmailer, a defence of contextual truth based upon the imputation that the plaintiff was an illegal immigrant would be doomed to failure. It would, in my view, be open to the trial judge in such circumstances to take such a defence away from the jury because there would be no rational basis upon which the jury could find in favour of the defendant. It is always for the judge to rule in regard to any particular issue whether there is a case to go to the jury: Jones v Skelton (1963) 63 SR (NSW) 644, at p 65680 WN 1061, at p 1070.
In between these two extremes there must, of course, be many degrees. If the publication described the plaintiff (falsely) as a share swindler and (truly) as a rapist, the jury could well have considerable difficulty in weighing or measuring the relative worth or value of the two imputations conveyed. In those circumstances, it seems that the trial judge would be obliged to leave the issue to the jury.
[2] [1981] 1 NSWLR 36, 38-39.
The pleaded contextual imputations
Judge Lunn reproduced only the defendant’s pleadings in respect of the first two publications and I will adopt the same practice. The defendant pleaded in paragraph 10 of the defence as follows:
10In the further alternative, if the first publication or the first web publication conveyed either of the imputations alleged in paragraph 5A of the third amended statement of claim, then the defendants say the first publication and the first web publication in their natural and ordinary meaning additionally carried the following contextual imputations: (‘the First Article Contextual Imputations’) which imputations are true in substance and in fact.
10.1 The Plaintiff engaged in sexual misconduct while an Anglican priest in that he had a homosexual relationship for years with a young male who had sought counselling from him over his sexuality.
PARTICULARS
10.1.1In about late 1973–early 1974 the plaintiff commenced counselling to a young man (‘Richard’) who approached him about his sexuality.
10.1.2Shortly afterwards the plaintiff commenced a sexual relationship with Richard.
10.1.3The relationship involved mutual masturbation on multiple occasions.
10.1.4The sexual relationship initially took place over approximately 18 months.
10.1.5The plaintiff encouraged Richard to move into St Mark’s College, North Adelaide. At the time the plaintiff also lived at St Mark’s College.
10.1.6Sexual activity occurred in the plaintiff's flat at St Mark’s College, North Adelaide, Anglican Society camps, Richard’s home at Woodville West and Richard’s room at St Mark’s College.
10.1.7The sexual relationship continued while the plaintiff was married.
10.1.8 In about 1977 the plaintiff went overseas.
10.1.9After the plaintiff returned he officiated at Richard’s wedding in January 1980.
10.1.10In about 1981 the plaintiff encouraged Richard to move within the plaintiff’s parish at Plympton.
10.1.11In 1981 Richard and his wife moved into the plaintiff’s parish and started attending the plaintiff’s Church of Good Shepherd Plympton.
10.1.12The plaintiff encouraged Richard to be actively involved in church affairs.
10.1.13The plaintiff attended monthly meetings of Diocesan Council with Richard.
10.1.14On multiple occasions after the plaintiff returned from overseas and following Diocesan Council meetings, the plaintiff caused Richard to masturbate him in a car.
10.1.15On one occasion at an Adelaide Airport car park after the plaintiff returned from overseas the plaintiff caused Richard to masturbate him.
10.1.16 The sexual relationship finished in about 1985.
10.1.17Between 1973 and the end of his sexual relationship with Richard, the plaintiff was an Anglican priest.
10.1.18At the time of the homosexual relationship between Richard and the plaintiff, Richard was a vulnerable young man in respect of whom the plaintiff, by reason of his greater age, office, and the fact that Richard had sought counselling from him, was in a position of trust and authority.
10.2The plaintiff abused his position of trust as an Anglican priest and engaged in immoral behaviour by having a lengthy homosexual relationship with a young male who had sought counselling from him over his sexuality.
PARTICULARS
10.2.1In about late 1973–early 1974 the plaintiff commenced counselling to a young man (‘Richard’) who approached him about his sexuality.
10.2.2Shortly afterwards the plaintiff commenced a sexual relationship with Richard.
10.2.3The relationship involved mutual masturbation on multiple occasions.
10.2.4The sexual relationship initially took place over approximately 18 months.
10.2.5The plaintiff encouraged Richard to move into St Mark’s College, North Adelaide. At the time the plaintiff also lived at St Mark’s College.
10.2.6Sexual activity occurred in the plaintiff's flat at St Mark’s College, North Adelaide, Anglican Society camps, Richard’s home at Woodville West and Richard’s room at St Mark’s College.
10.2.7The sexual relationship continued while the plaintiff was married.
10.2.8 In about 1977 the plaintiff went overseas.
10.2.9After the plaintiff returned he officiated at Richard’s wedding in January 1980.
10.2.10In about 1981 the plaintiff encouraged Richard to move within the plaintiff’s parish at Plympton.
10.2.11In 1981 Richard and his wife moved into the plaintiff’s parish and started attending the plaintiff’s Church of Good Shepherd Plympton.
10.2.12The plaintiff encouraged Richard to be actively involved in church affairs.
10.2.13The plaintiff attended monthly meetings of Diocesan Council with Richard.
10.2.14On multiple occasions after the plaintiff returned from overseas and following Diocesan Council meetings, the plaintiff caused Richard to masturbate him in a car.
10.2.15On one occasion at an Adelaide Airport car park after the plaintiff returned from overseas the plaintiff caused Richard to masturbate him.
10.2.16 The sexual relationship finished in about 1985.
10.2.17Between 1973 and the end of his sexual relationship with Richard, the plaintiff was an Anglican priest.
10.2.18At the time of the homosexual relationship between Richard and the plaintiff, Richard was a vulnerable young man in respect of whom the plaintiff, by reason of his greater age, office, and the fact that Richard had sought counselling from him, was in a position of trust and authority.
10.3The Plaintiff was a sexual predator in that while an Anglican priest he engaged in sexual activity with a woman and a man who had sought counselling from him.
PARTICULARS
10.3.1In about late 1973–early 1974 the plaintiff commenced counselling to a young man (‘Richard’) who approached him about his sexuality.
10.3.2Shortly afterwards the plaintiff commenced a sexual relationship with Richard.
10.3.3The relationship involved mutual masturbation on multiple occasions.
10.3.4The sexual relationship initially took place over approximately 18 months.
10.3.5The plaintiff encouraged Richard to move into St Mark’s College, North Adelaide. At the time the plaintiff also lived at St Mark’s College.
10.3.6Sexual activity occurred in the plaintiff’s flat at St Mark’s College, North Adelaide, Anglican Society camps, Richard’s home at Woodville West and Richard’s room at St Mark’s College.
10.3.7The sexual relationship continued while the plaintiff was married.
10.3.8 In about 1977 the plaintiff went overseas.
10.3.9After the plaintiff returned he officiated at Richard’s wedding in January 1980.
10.3.10In about 1981 the plaintiff encouraged Richard to move within the plaintiff’s parish at Plympton.
10.3.11In 1981 Richard and his wife moved into the plaintiff’s parish and started attending the plaintiff’s Church of Good Shepherd Plympton.
10.3.12The plaintiff encouraged Richard to be actively involved in church affairs.
10.3.13The plaintiff attended monthly meetings of Diocesan Council with Richard.
10.3.14On multiple occasions after the plaintiff returned from overseas and following Diocesan Council meetings, the plaintiff caused Richard to masturbate him in a car.
10.3.15On one occasion at an Adelaide Airport car park after the plaintiff returned from overseas the plaintiff caused Richard to masturbate him.
10.3.16 The sexual relationship finished in about 1985.
10.3.17Between 1973 and the end of his sexual relationship with Richard, the plaintiff was an Anglican priest.
10.3.18At the time of the homosexual relationship between Richard and the plaintiff, Richard was a vulnerable young man in respect of whom the plaintiff, by reason of his greater age, office, and the fact that Richard had sought counselling from him, was in a position of trust and authority.
10.3.19In about 1973 the plaintiff was the parish rector at St Paul’s Anglican Church Adelaide and ran a youth group at that church.
10.3.20In or about 1973, ‘Jenny’, who was born on [date deleted for the purpose of this judgment], was a vulnerable young member of the St Paul’s Anglican Church congregation and youth group and sought counselling from the plaintiff at his house at Kermode Street, North Adelaide.
10.3.21When Jenny met with the plaintiff for counselling, the plaintiff caused her to masturbate him.
10.4The plaintiff was a hypocrite in that he held himself out as a moral, trustworthy and righteous man when the truth was that he was immoral, untrustworthy and sinful;
PARTICULARS
10.4.1The plaintiff on multiple occasions in the 1970’s had oral sexual intercourse with a teenage girl under the age of consent (Jane) and was masturbated by her.
10.4.2The conduct referred to in paragraph 10.4.1 occurred at the plaintiff’s flat at St Mark’s College and in the plaintiff’s car at South Brighton.
10.4.3During the period referred to in paragraph 10.4.1 the plaintiff was at all times an Anglican priest.
10.4.3A Jane was born on 10 November 1956.
10.4.4Jane met the plaintiff in about 1969-1970 when the plaintiff was aged about 26 years and Jane was aged about 13 years.
10.4.5In about 1969-1970 the plaintiff slept in the same room as Jane and X (who was then aged 13 years) in a town in country South Australia. The plaintiff was in a position of trust in relation to both girls and was at the time a Deacon in the Anglican Church of which Jane and X were parishioners and choir girls.
10.4.6On the occasion referred to in paragraph 10.4.5 above, the plaintiff, while laying on a bed, passionately kissed X while having his exposed erect penis held by Jane.
10.4.7The plaintiff was subsequently the priest in charge of a church youth group of which Jane was a parishioner and member between about 1970 and 1975 and in relation to whom he was in a position of trust when the acts referred to in paragraph 10.4.1 above occurred.
10.4.8At the time when the acts referred to in paragraph 10.4.1 occurred Jane was a vulnerable young person in respect of whom the plaintiff, by reason of his greater age and office, was in a position of trust and authority.
10.4.9In about late 1973–early 1974 the Plaintiff commenced counselling to a young man (‘Richard’) who approached him about his sexuality.
10.4.10Shortly afterwards the plaintiff commenced a sexual relationship with Richard.
10.4.11The relationship involved mutual masturbation on multiple occasions.
10.4.12The sexual relationship initially took place over approximately 18 months.
10.4.13The plaintiff encouraged Richard to move into St Mark’s College, North Adelaide. At the time the plaintiff also lived at St Mark’s College.
10.4.14Sexual activity occurred in the plaintiff’s flat at St Mark’s College, North Adelaide, Anglican Society camps, Richard’s home at Woodville West and Richard’s room at St Mark’s College.
10.4.15The sexual relationship continued while the plaintiff was married.
10.4.16 In about 1977 the plaintiff went overseas.
10.4.17After the plaintiff returned he officiated at Richard’s wedding in January 1980.
10.4.18In about 1981 the plaintiff encouraged Richard to move within the plaintiff’s parish at Plympton.
10.4.19In 1981 Richard and his wife moved into the plaintiff’s parish and started attending the plaintiff’s Church of Good Shepherd Plympton.
10.4.20The plaintiff encouraged Richard to be actively involved in church affairs.
10.4.21The plaintiff attended monthly meetings of Diocesan Council with Richard.
10.4.22On multiple occasions after the plaintiff returned from overseas and following Diocesan Council meetings, the plaintiff caused Richard to masturbate him in a car.
10.4.23On one occasion at an Adelaide Airport car park after the plaintiff returned from overseas the plaintiff caused Richard to masturbate him.
10.4.24 The sexual relationship finished in about 1985.
10.4.25Between 1973 and the end of his sexual relationship with Richard, the plaintiff was an Anglican priest.
10.4.26At the time of the homosexual relationship between Richard and the plaintiff, Richard was a vulnerable young man in respect of whom the plaintiff, by reason of his greater age, office, and the fact that Richard had sought counselling from him, was in a position of trust and authority.
10.4.27In about 1986 Richard’s wife (‘Wendy’) confronted the plaintiff about the affair. The plaintiff admitted the relationship.
10.4.28In about late 1994 the plaintiff told Wendy to deny his relationship with Richard if the media asked questions.
10.4.29In doing so, the plaintiff knew he was asking Wendy to be dishonest.
10.4.30In about 1982 the plaintiff counselled Richard’s wife (Wendy) on sexual matters concerning her relationship with Richard. The plaintiff made no reference to her of his sexual activities with Richard.
10.4.31In about 1973 the plaintiff was the parish rector at St Paul’s Anglican Church Adelaide and ran a youth group at that church.
10.4.32In or about 1973, ‘Jenny’, who was born on [date deleted for the purpose of this judgment], was a vulnerable young member of the St Paul’s Anglican Church congregation and youth group and sought counselling from the plaintiff at his house at Kermode Street, North Adelaide.
10.4.33When Jenny met with the plaintiff for counselling, the plaintiff caused her to masturbate him.
10.4.34The plaintiff regularly appeared on radio in the 1970’s speaking on matters of morality and was and is a well-known commentator on issues of morality and ethics.
10.4.35The plaintiff provided counselling to many people in the course of his roles as an Anglican priest and a Catholic priest.
10.4.36As an Anglican priest and a Catholic priest, the plaintiff held himself out as moral, trustworthy and righteous.
10.4.37In September 2008 the plaintiff issued a public statement falsely denying any impropriety:
10.4.37.1with Jane, Jenny, Richard or any sexual or other inappropriate behaviour with a minor;
10.4.37.2in the discharge of his responsibilities as a counsellor or priest or any lengthy relationship with Richard.
10.4.38By the public statement issued in September 2008, the plaintiff in reference to Richard said he had been a member of St Paul’s congregation, a close friend, and that their relationships became ‘personally complicated’.
10.5The Plaintiff engaged in reprehensible sexual misconduct while an Anglican priest;
PARTICULARS
10.5.1The plaintiff on multiple occasions in the 1970’s had oral sexual intercourse with a teenage girl under the age of consent (Jane) and was masturbated by her.
10.5.2The conduct referred to in paragraph 10.5.1 occurred at the plaintiff’s flat at St Mark’s College and in the plaintiff’s car at South Brighton.
10.5.3During the period referred to in paragraph 10.5.1 the plaintiff was at all times an Anglican priest.
10.5.3AJane was born on [date deleted for the purpose of this judgment].
10.5.4Jane met the plaintiff in about 1969-1970 when the plaintiff was aged about 26 years and Jane was aged about 13 years.
10.5.5In about 1969-1970 the plaintiff slept in the same room as Jane and X (who was then aged 13 years) in a town in country South Australia. The plaintiff was in a position of trust in relation to both girls and was at the time a Deacon in the Anglican Church of which Jane and X were parishioners and choir girls.
10.5.6On the occasion referred to in paragraph 10.5.5 above, the plaintiff, while laying on a bed, passionately kissed X while having his exposed erect penis held by Jane.
10.5.7The plaintiff was subsequently the priest in charge of a church youth group of which Jane was a parishioner and member between about 1970 and 1975 and in relation to whom he was in a position of trust when the acts referred to in paragraph 10.5.1 above occurred.
10.5.8At the time when the acts referred to in paragraph 10.5.1 occurred Jane was a vulnerable young person in respect of whom the plaintiff, by reason of his greater age and office, was in a position of trust and authority.
10.5.9In about late 1973–early 1974 the plaintiff commenced counselling to a young man (‘Richard’) who approached him about his sexuality.
10.5.10Shortly afterwards the plaintiff commenced a sexual relationship with Richard.
10.5.11The relationship involved mutual masturbation on multiple occasions.
10.5.12The sexual relationship initially took place over approximately 18 months.
10.5.13The plaintiff encouraged Richard to move into St Mark’s College, North Adelaide. At the time the plaintiff also lived at St Mark’s College.
10.5.14Sexual activity occurred at Plympton, in the plaintiff’s flat at St Mark’s College, North Adelaide, Anglican Society camps, Richard’s home at Woodville West and Richard’s room at St Mark’s College.
10.5.15The sexual relationship continued while the plaintiff was married.
10.5.16 In about 1977 the plaintiff went overseas.
10.5.17After the plaintiff returned he officiated at Richard’s wedding in January 1980.
10.5.18In about 1981 the plaintiff encouraged Richard to move within the plaintiff’s parish at Plympton.
10.5.19In 1981 Richard and his wife moved into the plaintiff’s parish and started attending the plaintiff’s Church of Good Shepherd Plympton.
10.5.20The plaintiff encouraged Richard to be actively involved in church affairs.
10.5.21The plaintiff attended monthly meetings of Diocesan Council with Richard.
10.5.22On multiple occasions after the plaintiff returned from overseas and following Diocesan Council meetings, the plaintiff caused Richard to masturbate him in a car.
10.5.23On one occasion at an Adelaide Airport car park after the plaintiff returned from overseas the plaintiff caused Richard to masturbate him.
10.5.24 The sexual relationship finished in about 1985.
10.5.25In about 1982 the plaintiff counselled Richard’s wife (Wendy) on sexual matters concerning her relationship with Richard. The plaintiff made no reference to her of his sexual activities with Richard.
10.5.26Between 1973 and the end of his sexual relationship with Richard, the plaintiff was an Anglican priest.
10.5.27In about 1973 the plaintiff was the parish rector at St Paul’s Anglican Church Adelaide and ran a youth group at that church.
10.5.28In or about 1973, ‘Jenny’, who was born on [date deleted for the purpose of this judgment], was a vulnerable young member of the St Paul’s Anglican Church congregation and youth group and sought counselling from the plaintiff at his house at Kermode Street, North Adelaide.
10.5.29When Jenny met with the plaintiff for counselling, the plaintiff caused her to masturbate him.
10.6The plaintiff abused his position as an Anglican priest to prey on vulnerable young people for his sexual gratification.
PARTICULARS
10.6.1The plaintiff on multiple occasions in the 1970’s had oral sexual intercourse with a teenage girl under the age of consent (Jane) and was masturbated by her.
10.6.2The conduct referred to in paragraph 10.6.1 occurred at the plaintiff’s flat at St Mark’s College and in the plaintiff’s car at South Brighton.
10.6.3During the period referred to in paragraph 10.6.1 the plaintiff was at all times an Anglican priest.
10.6.3AJane was born on [date deleted for the purpose of this judgment].
10.6.4Jane met the plaintiff in about 1969-1970 when the plaintiff was aged about 26 years and Jane was aged about 13 years.
10.6.5In about 1969-1970 the plaintiff slept in the same room as Jane and X (who was then aged 13 years) in a town in country South Australia. The plaintiff was in a position of trust in relation to both girls and was at the time a Deacon in the Anglican Church of which Jane and X were parishioners and choir girls.
10.6.6On the occasion referred to in paragraph 10.6.5 above, the plaintiff, while laying on a bed, passionately kissed X while having his exposed erect penis held by Jane.
10.6.7The plaintiff was subsequently the priest in charge of a church youth group of which Jane was a parishioner and member between about 1970 and 1975 and in relation to whom he was in a position of trust when the acts referred to in paragraph 10.6.1 above occurred.
10.6.8At the time when the acts referred to in paragraph 10.6.1 occurred Jane was a vulnerable young person in respect of whom the plaintiff, by reason of his greater age and office, was in a position of trust and authority.
10.6.9In about late 1973–early 1974 the plaintiff commenced counselling to a young male parishioner (‘Richard’) who approached him about his sexuality.
10.6.10Shortly afterwards the plaintiff commenced a sexual relationship with Richard.
10.6.11The relationship involved mutual masturbation on multiple occasions.
10.6.12The sexual relationship initially took place over approximately 18 months.
10.6.13The plaintiff encouraged Richard to move into St Mark’s College, North Adelaide. At the time the plaintiff also lived at St Mark’s College.
10.6.14Sexual activity occurred at Plympton, in the plaintiff’s flat at St Mark’s College, North Adelaide, Anglican Society camps, Richard’s home at Woodville West and Richard’s room at St Mark’s College.
10.6.15The sexual relationship continued while the plaintiff was married.
10.6.16 In about 1977 the plaintiff went overseas.
10.6.17After the plaintiff returned he officiated at Richard’s wedding in January 1980.
10.6.18In about 1981 the plaintiff encouraged Richard to move within the plaintiff’s parish at Plympton.
10.6.19In 1981 Richard and his wife moved into the plaintiff’s parish and started attending the plaintiff’s Church of Good Shepherd Plympton.
10.6.20The plaintiff encouraged Richard to be actively involved in church affairs.
10.6.21The plaintiff attended monthly meetings of Diocesan Council with Richard.
10.6.22On multiple occasions after the plaintiff returned from overseas and following Diocesan Council meetings, the plaintiff caused Richard to masturbate him in a car.
10.6.23On one occasion at an Adelaide Airport car park after the plaintiff returned from overseas the plaintiff caused Richard to masturbate him.
10.6.24 The sexual relationship finished in about 1985.
10.6.25Between 1973 and the end of his sexual relationship with Richard, the plaintiff was an Anglican priest.
10.6.26At the time of the homosexual relationship between Richard and the plaintiff, Richard was a vulnerable young man in respect of whom the plaintiff, by reason of his greater age, office, and the fact that Richard had sought counselling from him, was in a position of trust and authority.
10.6.27In about 1973 the plaintiff was the parish rector at St Paul’s Anglican Church Adelaide and ran a youth group at that church.
10.6.28In or about 1973, ‘Jenny’, who was born on [date deleted for the purpose of this judgment], was a vulnerable young member of the St Paul’s Anglican Church congregation and youth group and sought counselling from the plaintiff at his house at Kermode Street, North Adelaide.
10.6.29When Jenny met with the plaintiff for counselling, the plaintiff caused her to masturbate him.
10.7The plaintiff engaged in criminal sexual behaviour while an Anglican priest.
PARTICULARS
10.7.1The plaintiff on multiple occasions in the 1970’s had oral sexual intercourse with a teenage girl under the age of consent (Jane) and was masturbated by her.
10.7.2The conduct referred to in paragraph 10.7.1 occurred at the plaintiff’s flat at St Mark’s College and in the plaintiff’s car at South Brighton.
10.7.3During the period referred to in paragraph 10.7.1 the plaintiff was at all times an Anglican priest.
10.7.3AJane was born on [date deleted for the purpose of this judgment].
10.7.4Jane met the plaintiff in about 1969-1970 when the plaintiff was aged about 26 years and Jane was aged about 13 years.
10.7.5In about 1969-1970 the plaintiff slept in the same room as Jane and X (who was then aged 13 years) in a town in country South Australia. The plaintiff was in a position of trust in relation to both girls and was at the time a Deacon in the Anglican Church of which Jane and X were parishioners and choir girls.
10.7.6On the occasion referred to in paragraph 10.7.5 above, the plaintiff, while laying on a bed, passionately kissed X while having his exposed erect penis held by Jane.
10.7.7The plaintiff was subsequently the priest in charge of a church youth group of which Jane was a parishioner and member between about 1970 and 1975 and in relation to whom he was in a position of trust when the acts referred to in paragraph 10.7.1 above occurred.
10.7.8At the time when the acts referred to in paragraph 10.7.1 occurred Jane was a vulnerable young person in respect of whom the plaintiff, by reason of his greater age and office, was in a position of trust and authority.
10.7.9In about 1973 the plaintiff was the parish rector at St Paul’s Anglican Church Adelaide and ran a youth group at that church.
10.7.10In or about 1973, ‘Jenny’, who was born on [date deleted for the purpose of this judgment], was a vulnerable young member of the St Paul’s Anglican Church congregation and youth group and sought counselling from the plaintiff at his house at Kermode Street, North Adelaide.
10.7.11When Jenny met with the plaintiff for counselling, the plaintiff caused her to masturbate him.
10.7.12In engaging in the conduct particularised in paragraphs 10.7.1 – 10.7.11 above the plaintiff committed offences against the Criminal Law Consolidation Act 1952 namely indecent interference with a female under the age of 17 years (s 57b) and/or gross indecency (s 58).
10.7.13At the time of the publication of the matters complained of by the plaintiff the acts of oral sexual intercourse particularised in paragraphs 10.7.1-10.7.2 above constituted the criminal offence of unlawful sexual intercourse.
The correct approach to an application to strike out a defendant’s pleadings of contextual truth
The plaintiff submitted that the correct approach to an application to strike out a defendant’s pleadings of contextual truth is to consider whether it is reasonably arguable that the plea complies with the parameters of s 24 of the Defamation Act 2005.
Judge Lunn rejected that submission and held that the correct approach is by reference to the question as to whether the pleas are reasonably capable of supporting a finding in the defendant’s favour. His Honour stated:
[27]The test for striking out the defendant’s pleadings of contextual truth under s 24 is whether those pleas are reasonably capable of supporting a finding in the defendant’s favour. This is in accordance with 6R 104. I do not accept the plaintiff’s submission that the test should be whether it is reasonably arguable that the plea complies with the parameters of s 24.
His Honour cited the decision in Newnham v Davis[3] in support of that approach. In Newnham v Davis (No 2)[4] Kaye J stated:
[48]The first point, raised by Ms Schoff, is whether the contextual imputations pleaded by the defendant are, or are capable of being, additional to the imputations pleaded by the plaintiff. It is clear, from the express terms of s 26(a), and also from the structure of a contextual truth defence, that the contextual imputations must be “additional to” the imputations pleaded by the plaintiff. Section 26(a) expressly requires that the contextual imputations arise “in addition to” the defamatory imputations of which the plaintiff complains. The structure of s 26 is such that it requires a comparison, by the Court, of two sets of imputations to be derived from the defamatory material, namely, the plaintiff’s imputations, and the contextual imputations. Thus, as Hunt J stated in the John Fairfax & Sons Ltd case, it is necessary that the contextual imputations relied on by the defendant “differ in substance” from those pleaded by the plaintiff.
[49]Mr Wilson submitted that it is sufficient if I were to conclude that a jury could find that the imputations, pleaded by the defendant, were different from, and additional to, the imputations pleaded by the plaintiff. In response, Ms Schoff submitted that the question, as to whether the contextual imputations are additional to the plaintiff’s imputations, is not a matter for the jury, but for the judge. In my view, Mr Wilson is correct. In Jackson’s case, Hunt J considered that the relevant test, which he was to apply, was whether the contextual imputations were capable of being conveyed “at the same time and in addition to the imputations pleaded by the plaintiff”. With respect, I consider that that test is correct. If a defence of contextual truth were to proceed before a jury, it would be a matter for the jury (and not the judge) as to determine whether the defamatory matter conveyed the contextual imputations and, also, whether those contextual imputations were “in addition to” the defamatory imputations. That issue would not fall for determination by the trial judge. At this stage, and at trial, the role of the judge is to determine whether the contextual imputations relied upon by the defendant, are capable of being derived from the defamatory matter and, if so, whether those contextual imputations are reasonably capable of being considered to be additional to the defamatory imputations pleaded by the plaintiff. Similarly, I consider that the applicable test for a judge, in considering s 26(b) of the Defamation Act, is whether a jury might reasonably conclude that the plaintiff’s imputations did not further harm the reputation of the plaintiff, because of the substantial truth of the defendant’s imputations, if in fact the defendant’s imputations are found to be contextual imputations.
[Footnotes omitted]
[3] Newnham v Davis (No 2) [2010] VSC 94.
[4] [2010] VSC 94.
I consider that the approach taken in Newnham v Davis (No 2)[5] and by Judge Lunn in the present case is plainly correct.
[5] [2010] VSC 94.
The correct construction of s 24 Defamation Act 2005
Judge Lunn correctly appreciated that the imputations relied upon by the defendant must be different to those pleaded by the plaintiff and also adopted the correct approach, as adumbrated in Hepburn v TCN Channel Nine Pty Ltd,[6] that:
[28]the relevant comparison is not simply between individual imputations, but whether the defendants’ contextual imputations, taken in aggregate and including the facts and matters pleaded by the defendants, are such that they are capable of so affecting the plaintiff’s reputation that the defendant’s pleaded imputations, assuming they are established, do not further injure his reputation.
[6] (1984) 1 NSWLR 386, 400.
His Honour found that the contextual imputations pleaded by the defendant were capable of being conveyed at the same time and in addition to the imputations pleaded by the plaintiff. His Honour further found that such imputations, if found to be substantially true, could well have substantially harmed the reputation of the plaintiff. These findings are plainly correct.
However, there is one passage in Judge Lunn’s reasons which I would respectfully question (although I do not think that senior counsel for the plaintiff made express reference to it). Following the extract last reproduced above, his Honour stated:
[30]… It is reasonably arguable under s 24(b) that such harm would at least equal that flowing to the plaintiff’s reputation from the pleaded imputations.
It seems to me that it is not enough that proof of harm to the plaintiff’s reputation from the defendants’ pleaded imputations would at least equal that flowing to the plaintiff’s reputation from the plaintiffs pleaded imputations. As a matter of logic, such a formulation appears to allow for the possibility that the plaintiff might nevertheless still suffer some harm from the plaintiff’s pleaded imputations additional to the harm arising from the defendants’ imputations. I note that in Hepburn v TCN Channel Nine Pty Ltd[7] Hunt J stated:
… The defence afforded by s 16 does not raise an issue simply of whether the combined effect of the defendant’s contextual imputations is greater than the effect of the plaintiff’s imputation to which they are pleaded. The defendant would not succeed even if the jury were satisfied that that was the situation, for obviously the plaintiff's imputation would still have some effect upon the plaintiff’s reputation notwithstanding the effect of the truth of the defendant’s contextual imputations. …
(Emphasis added)
[7] (1984) 1 NSWLR 386, 405.
It may well be that Judge Lunn did not mean to be understood in this sense and it can be seen that his Honour in fact correctly directed himself at another part of his judgment. However, where it can be said that one of two formulations is possibly indicative of error of approach, the safest course is for me to reconsider the particular matter.
On reconsideration, I direct myself that the correct approach is to ask whether it is reasonably arguable that the nature of the contextual imputations (assuming them to be true for the purposes of this argument) so affected the plaintiff’s reputation that the plaintiff’s imputation does not further harm that reputation. I take into account the observations of Hunt J in Hepburn v TCN Channel Nine Pty Ltd[8] referred to immediately above when considering that question.
[8] (1984) 1 NSWLR 386, 405.
The plaintiff essentially argues that because his imputation is based on a more serious criminal offence than any offence alleged in the defendants’ imputations, the harm flowing from his imputation must necessarily exceed the harm flowing from the defendant’s imputations and that, in any event, the plaintiff’s imputation will further harm the reputation of the plaintiff notwithstanding the substantial truth of the defendant’s pleaded imputation.
That argument might have substantial force if both the plaintiff and defendants each made one imputation of one factual occurrence and that of the plaintiff was inherently more serious than that of the defendants. But here, while the imputation made by the plaintiff is the most serious standing alone, the defendants make a number of imputations the cumulative effect and force of which must be taken into account. In this regard, I agree with Judge Lunn’s observation:
[30]… Against the seriousness of the criminal conduct alleged in the plaintiff’s imputation must be weighed the extent and the frequency of the sexual improprieties as pleaded by the defendant as contextual truth.
On reconsideration, taking the correct approach to be as I have formulated it above, but bearing in mind “the extent and the frequency of the sexual improprieties as pleaded by the defendants as contextual truth”, I am not satisfied that the defendants will not be able to satisfy the trial Judge, that the publication of the plaintiff’s imputation did not cause additional injury to the plaintiff’s reputation notwithstanding the substantial truth of the defendants’ pleaded imputations.[9]
[9] I realise that the distinction of using a triple negative is a dubious one, but it seems necessary in the particular circumstances.
I reject ground 3 of appeal.
Ground 7 of appeal – the use of pseudonyms
Ground 7 of appeal appears as follows:
The learned Master erred in failing to order that the respondents name the persons to whom they have applied pseudonyms.
The relevant portion of the judgment of Judge Lunn is sufficient to reveal the setting, the arguments and his Honour’s reasons in relation to the subject matter of this ground of appeal. His Honour stated:
[37]By an application taken out on 21 September 2010 (FDN18) the defendant sought permission to refer to persons in the defence by the pseudonyms of X, Jenny, Jane and Richard. This was later orally extended to include Wendy as the wife of Richard. It was opposed by the plaintiff.
[38]The Court has an inherent power to allow witnesses to be identified only by pseudonyms. [Footnote: his Honour refers to his work, Civil Procedure SA Vol 2 at [18.750.70]] Here I am only concerned with the use of pseudonyms in the pleadings and in the interlocutory stage of the action. It will be for the trial Judge to determine whether any continued use of pseudonyms should be permitted at the trial. X, Jane, Jenny and Richard have all requested that they not be named. Presumably the naming of Wendy would identify Richard. Each of X, Jane, Jenny and Richard were young people at the time of the relevant events. [Footnote: “The age of Richard has not been given, but he is described as young.”] Public revelation of their involvement in such sexual activity is likely to be a source of potential embarrassment for them.
[39]The plaintiff relied on the decision of the Federal Court in Fraser-Kirk v David Jones Ltd where the plaintiff there was refused permission not to name other persons who had complained about the activities of the defendant’s manager. However, that case turned principally on fairness requiring that the defendant know the identities of the persons whose activities were pleaded in the statement of claim. Here the defendant has indicated it will supply to the plaintiff on a confidential basis the names of those persons represented by the pseudonyms. The plaintiff does not allege any particular prejudice to him from these names not being pleaded. He says that publication of the names may lead to other relevant information being obtained which might assist the plaintiff’s case. However, there is at least an equal possibility that such publication might lead to further information being supplied to the defendant which would be adverse to the plaintiff’s case.
[40]While the basic principle is that there should be open justice and public knowledge of who is involved in cases before the Court, in this case, at least at the interlocutory stages, the other factors mentioned above override the need to disclose the names publicly. It is in the interests of justice that the pseudonyms be permitted in the interlocutory stages of the action.
(Emphasis added)
At the hearing before Judge Lunn, counsel for the defendants asserted that it appeared that the plaintiff already knew the names of at least some of the persons but that, in any event, the defendants would supply to the plaintiff the names “on a confidential basis”. Counsel for the plaintiff did not make any submission as to whether the plaintiff did, or did not, know some or all of the names and did not submit that a supply of information as to the names on a confidential basis was opposed. Rather, the plaintiff simply opposed the making of any order authorising the use of pseudonyms and essentially relied upon the submission that by preventing the identities of the persons becoming known publicly, the accused might lose the opportunity of valuable information being supplied to them during the trial by readers, listeners or viewers of reports of the evidence given. This argument may have some substance at the trial stage,[10] but it will be appreciated that its importance is much less at the interlocutory stage which is not likely to generate any such information.
[10] See generally R v Savvas (1989) 43 A Crim R 331 where the Court considered an argument against the use of pseudonyms similar to that put by the present plaintiff, namely that by preventing the identities of the two witnesses becoming known publicly, the accused may lose the opportunity of valuable information being supplied to them during the trial by readers, listeners or viewers of reports of the evidence given.
Obviously the ability to investigate and prepare for trial is of critical importance. However, it is clear that his Honour well appreciated this: he declined to rule against the use of pseudonyms in the pleadings only because he proceeded on the specific basis that the defendants had (during the course of the hearing before him) “indicated it will supply to the plaintiff on a confidential basis the names of those persons represented by the pseudonyms.” His Honour obviously assumed that that would shortly occur and that the plaintiff would therefore be able to prepare adequately for trial.
Judge Lunn made it clear that he was only addressing the interlocutory stage and I am not inclined to interfere in relation to his Honour’s decision as to the interlocutory stage, bearing in mind that the trial Judge will be free to consider the matter afresh in the different context of the trial.
However, on the hearing of the appeal before me, it became apparent that the defendants had not supplied the names of the persons to the plaintiff since the hearing before Judge Lunn and that this abstention was tied up with a dispute between the parties as to whether such supply should occur only “on a confidential basis”. This imbroglio was the subject of a letter from the solicitors for the defendants to the solicitors for the plaintiff dated 8 December 2011 (written after judgment on the appeal was reserved,[11]) the relevant portion stating:
As you know, we have written to you on multiple previous occasions (including, at least 19 March, 22 July and 14 September 2010) to:
1ask whether or not your client is aware of the identities of the witnesses referred to by use of the pseudonyms “Jane”, “Jenny” and “Richard” in our client’s defence, and
2offer, in the event that your client is not so aware, to provide the names of those witnesses to your client on a confidential basis.
In response to each of our letters, your client has declined to confirm or deny whether he is aware of the identities of the witnesses, and either declined or failed to respond to our client’s offer of confidential provision of the witnesses’ names.
As set out in previous correspondence, our clients believe, based in part on your client’s public statement issued in 2008, that your client is well aware of the identities of the relevant witnesses. That belief has only been strengthened by the clear inference available to be drawn from your client’s failure to deny that he is so aware following three separate invitations to do so.
Nevertheless, we are instructed to confirm, in response to the Honourable Justice Peek’s invitation, that our client is prepared to provide you, on a confidential basis, with the names of any of those witnesses where your client says that he does not already know their identity.
[11] Written after judgment was reserved on 7 December 2011 but supplied to me by agreement of both parties.
The defendants did not supply any names with that letter. The reply of the plaintiff’s solicitors to this “proposal” was by email dated 16 December 2011, the relevant portion stating:
We understand your client’s proposal to be that our client accept, in full resolution of the positions put before Master Lunn and Justice Peek on the issue of the use of pseudonyms, your clients’ offer to provide on a confidential basis the names of witnesses our client indicates he does not know the identity of.
Our client doest not agree to this proposal.
One notes that this email does not address either the assertions of the defendants that the plaintiff in fact already knows the names of the person referred to by pseudonyms or the defendants’ requests to the plaintiff to inform them as to whether he does or does not have this knowledge.
This correspondence was sent by the plaintiff’s solicitors to my Associate with a covering email dated 20 December 2011 which stated:
I am sending this email with the consent of the solicitors for the defendants.
I refer to the orders made by his Honour at the appeal hearing on 7 December and advise that the issue relating to the use of pseudonyms in the pleadings has not resolved between the parties.
The parties accordingly invite his Honour to:
– consider the attached correspondence which has passed between the parties in relation to the issue since 7 December; and
– rule on the issue as part of the appeal judgment.
Neither party wishes to make any further oral submission on the issue, but both parties remain, of course, more than willing to do so if that would be of assistance to his Honour.
I am apparently invited by both parties to “consider the correspondence” and “rule on the issue” and I take this to mean that both parties agree that I should rule afresh in relation to the matter of pseudonyms having regard to both this correspondence and facts which have, or have not, occurred since the hearing before Judge Lunn, all of which matters were ex hypothesi not before his Honour. With some reluctance, I will do so in the interests of saving further waste of time and expense.
I consider that, absent very special circumstances not applying here, a party should only be permitted to use pseudonyms in the pleadings on the basis that they supply to the other party the correct names of the persons being thus referred to. I consider that the mere contention by the defendants in the present case that the plaintiff already has that information, in circumstances where the plaintiff makes no such concession, is insufficient to alter this general position.
As to whether that information should be supplied only “on a confidential basis”, no significant argument was put before me by either side, and no authorities were cited, as to why such supply should be only on a “confidential” basis or, indeed, what that term would precisely mean or entail in the present circumstances.
I simply observe that the present case is very different from decisions such as R v Savvas,[12] John Fairfax Group Pty Ltd v Local Court of NSW,[13] R v Gibson,[14] Jarvie v Magistrates Court of Victoria,[15] and R v Smith[16] where the relevant persons were in the category of “informers” (it being traditionally accepted that it is at least arguable that a matter amounting to public interest immunity may be involved in such circumstances). In my view, no sufficient considerations are established in the present case to justify requiring the plaintiff to be informed of the persons’ true identities only “on a confidential basis”.
[12] (1989) 43 A Crim R 331.
[13] (1992) 26 NSWLR 131.
[14] (1991) 57 A Crim R 322.
[15] [1995] 1 VR 84.
[16] (1996) 86 A Crim R 308.
I decide that the defendants should only be permitted to use pseudonyms in the pleadings on the basis that they promptly supply to the plaintiff the correct names of the persons referred to (and that the supply of such information is not to be made only on a confidential basis).
One way of effectuating that outcome would be to reformulate Judge Lunn’s order as to the use of pseudonyms by adding a condition to it. However, it seems to me that the most expeditious way to proceed is to leave his Honour’s order on foot and to order the defendants to provide the relevant names to the plaintiff within a stated time period. Obviously, a failure to do so would lead to the setting aside of any permission to use pseudonyms in the defendants’ pleadings, which would in turn lead to those pleadings being struck out if unamended by the insertion of the correct names therein.
Disposition of the appeal and proposed orders
Subject to hearing the parties, I propose to make the following orders:
1All grounds of appeal except for ground 7 having been rejected or withdrawn, the appeal is allowed only for the limited purpose of making order 2.
2The solicitors for the defendants do supply in writing to the solicitors for the plaintiff by no later than the expiration of three days after the making of this order the full and correct names of each of the persons respectively referred to in the pleadings as “X”, “Jane”, “Jenny”, “Richard” and “Wendy” and specifically identify which pseudonym relates to which name.
3The orders made by Judge Lunn are otherwise confirmed.
I will hear the parties as to the form of the above proposed orders and as to costs below and of the appeal.
3
4
1