Gant v The Age Co Ltd
[2011] VSC 169
•29 April 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 6515 of 2010
| PETER GANT | Plaintiff |
| v | |
| THE AGE COMPANY LIMITED STEPHEN NALL WENDY WHITELEY | Firstnamed Defendant Secondnamed Defendant Thirdnamed Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 April 2011 | |
DATE OF JUDGMENT: | 29 April 2011 | |
CASE MAY BE CITED AS: | Gant v The Age & Ors | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 169 | |
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DEFAMATION – Pleading – Whether material published capable of giving rise to imputations pleaded by plaintiff – Whether imputations are bad in form – Whether material published capable of being defamatory – Whether imputations defamatory.
LIMITATION OF ACTIONS – Cause of action in respect of first article statute-barred – Limitation of Actions Act 1958, ss 5(1AAA) and 23B.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.A. Ribbands | T F Grundy |
| For the Firstnamed Defendant | Dr M.J. Collins | Minter Ellison |
| For the Secondnamed Defendant | Dr T.J.F. McEvoy | Stynes Dixon |
| For the Thirdnamed Defendant | Mr T. Molomby | PHI Legal |
HIS HONOUR:
Introduction
In this proceeding, the plaintiff, Peter Gant, claims damages for defamation in respect of five articles published by the first defendant, The Age Company Limited. The five articles were:
(a)an article published on 20 November 2008 headed “Top artists move to block dealers selling ‘fakes’” (“the first article”);
(b)an article published on 19 July 2010 headed “A striking similarity, but spot the suspected fake” (“the second article”);
(c)an article published on 21 July 2010 headed “Spurious Whiteleys focus failings on art fraud” (“the third article”);
(d)an article published on 11 October 2010 headed “Suspect Whiteley painting used to cover debt” (“the fourth article”); and
(e)an article published on 6 November 2010 headed “Whiteley genius in the flesh” (“the fifth article”).
The Age is sued in respect of the publication of each of the five articles. The second defendant, Stephen Nall, is referred to in the first, third and fourth articles. The plaintiff claims damages from him in respect of words alleged to have been spoken by Mr Nall with the intention that they be published, or in the reasonable expectation that they would be published. The third defendant, Wendy Whiteley, is referred to in the fourth and fifth articles. The plaintiff claims damages from her in respect of words alleged to have been spoken by Ms Whiteley with the intention that they be published or in the reasonable expectation that they would be published. Neither the second defendant nor the third defendant is sued in respect of the publication of any of the five articles. The claims against them are limited to what they are alleged to have said as reported in the articles in which they are named.
Each of the defendants has filed a summons seeking to strike out various paragraphs of the statement of claim.[1] Additionally, the first and second defendants seek summary judgment in respect of the causes of action pleaded against them in relation to the publication of the first article. The complaints made about the statement of claim may be broadly summarised as follows:
(a)a complaint that the causes of action pleaded in respect of the first article are statute-barred by s 5(1AAA) of the Limitation of Actions Act 1958;
(b)a complaint that the imputations pleaded in respect of each article and impugned statement are not capable of arising or are bad in form;
(c)complaints concerning the failure by the plaintiff to plead precisely the specific words of the second and third defendants relied upon to support causes of action against them;[2] and
(d)a complaint that the final paragraph of the statement of claim (paragraph 25) is embarrassing on the basis that the allegations in that paragraph are not relevant to any element of the causes of action pleaded by the plaintiff.
[1]The first defendant’s summons was filed on 10 February 2011. The second defendant’s summons was filed on 8 February 2011. The third defendant’s summons was filed on 11 February 2011.
[2]The third defendant made a related complaint that the words attributed to her in the fourth and fifth articles make no reference to the plaintiff, and therefore cannot be defamatory of him. It was thus submitted by the third defendant that she was entitled to judgment against the plaintiff.
The first defendant has filed a jury notice pursuant to rule 47.02(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005. Subject to s 21 of the Defamation Act 2005 and rule 47.02(3), this proceeding will be tried by a jury.[3] I turn now to consider the first article and whether the causes of action pleaded in respect of it are statute barred.
[3]See also s 24 of the Juries Act; French v The Herald and Weekly Times Pty Limited [2010] VSC 127 and Ange v Fairfax Media Publications Pty Ltd & Ors [2010] NSWSC 1383.
The first article
The writ in this proceeding was issued on 2 December 2010. The first article was published on 20 November 2008. The statements attributed to the second defendant in the first article were obviously made on or before 20 November 2008.
Section 5(1AAA) of the Limitation of Actions Act provides:
“An action for defamation must not be brought after the expiration of one year from the date of the publication of the matter complained of.”
The plaintiff’s causes of action pleaded against the first and second defendants in relation to the first article are barred by the operation of s 5(1AAA) of the Limitation of Actions Act. Indeed, no argument was sought to be mounted by the plaintiff to the contrary. Ultimately, the plaintiff abandoned any reliance upon these causes of action.[4] Accordingly, there will be judgment:
(a)for the first defendant on the claims made against it in paragraphs 2, 3 and 22(a) of the statement of claim; and
(b)for the second defendant on the claims made against him in paragraphs 2, 4 and 5 of the statement of claim.
[4]Whilst s 23B of the Limitation of Actions Act provides for an extension of the limitation period for up to three years if the Court is satisfied that “it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within one year from the date of publication”, authorities such as Rametta v Deakin University [2010] FCA 1341, [18]–[30], show the difficulty of satisfying the test set out in s 23B.
As a consequence of the judgment entered in favour of the second defendant on the claims made in paragraphs 2, 4 and 5 of the statement of claim, the words “4 and/or” in paragraph 23 of the statement of claim must be struck out.
The statement of claim
Before dealing with the defendants’ applications in respect of the second, third, fourth and fifth articles and the underlying words of the second defendant in relation to the third and fourth articles and the third defendant in relation to the fourth and fifth articles, it is necessary to describe the statement of claim in some detail. In paragraph 1, the first defendant is alleged to be the publisher of The Age newspaper. Surprisingly, the statement of claim does not give any description of the position of the plaintiff or the second or third defendants. However, from the articles, it would appear that the plaintiff is an art dealer, the second defendant is the stepson of prominent artist, Robert Dickerson, and director of the Dickerson Gallery, and the third defendant is the widow of Brett Whiteley.
Paragraphs 2 to 5 of the statement of claim concern the first article and the causes of action previously alleged by the plaintiff in respect of it. Having regard to the entry of judgment against the plaintiff in respect of the claims made in these paragraphs, nothing further needs to be said about them.
Paragraphs 6 and 7 deal with the second article. In respect of the second article, the only cause of action pleaded is against the first defendant.
In paragraph 7 of the statement of claim, the plaintiff sets out the false innuendos said to arise from the second article. The imputations pleaded are:
“(a) the plaintiff sold artworks that were fake in the knowledge that they were fake;
(b) the plaintiff fabricated a catalogue so as to demonstrate proof of the authenticity of a work by Brett Whiteley and in respect of which claims had been made that the Brett Whiteley painting was a fake; and
(c) the plaintiff was a knowing participant in illegal conduct.”
In particulars of the imputations alleged in relation to the second article, the plaintiff asserts reliance upon the whole of the article. However, with respect to imputation 7(a), the following passage in the second article is specifically relied upon:
“Another name linked to the suspect work is Carlton dealer Peter Gant, who was the subject of a landmark Supreme Court case and in June this year was found in breach of the Fair Trading Act for selling three fake drawings, two attributed to Charles Blackman and one to Robert Dickerson.”
Similarly, in relation to imputation 7(b), particular reliance is placed upon material in the following paragraph contained in the second article:
“The Sydney collector was told that Orange Lavender Bay had been shown in an exhibition, A Private Affair held in 1989 by Mr Gant. A catalogue was provided to the Sydney collector as proof of the painting’s authenticity – but the catalogue itself appears to be fabricated. The collector was told that the catalogue was rare and that only two copies existed, one at the State Library of Victoria and the other at the National Gallery of Victoria. However, this was found to be untrue and the Sydney collector’s lawyer wrote to Mr Playfoot stating so. [Inquires by The Age confirmed that neither the NGV nor the State Library has original copies of the catalogue in their collections.]”
It is not entirely clear whether the passage I have set out in the previous paragraph contains all of the material upon which “particular reliance is placed”. This is because the particulars in relation to imputation 7(b) are expressed in a form assertion reliance upon “the passage beginning with ‘A catalogue was provided to the Sydney collector as proof of the painting’s authenticity – but the catalogue itself appears to be fabricated …’”. It may be that the pleader intends that the passage is wholly within the paragraph I have identified. On the other hand, there is material in the next paragraph of the second article which might be relied upon by the plaintiff. The next paragraph of the second article states:
“In response to several questions raised by the Sydney collector’s lawyer, … Mr Playfoot’s laywer replied: ‘It is not our intention to enter [sic] long correspondence on all the matters you allege except to say that our client acted for Peter Gant (who was acting on behalf of his client) in selling Orange Lavender Bay. To the best of our client’s knowledge, the painting is genuine. Our client has not reason to suspect or doubt its authenticity.’”
It is trite to say that when giving particulars of passages relied upon in articles to support defamatory imputations, a pleader should identify with precision the boundaries of the passages relied upon. The giving of particulars identifying passages with their commencement and not their end is, at least, unhelpful – if not embarrassing in the technical sense.[5]
[5]The same problem can be found in the particulars given under paragraphs 13, 16, 19 and 20 of the statement of claim.
Paragraphs 8 to 11 of the statement of claim deal with the third article. In paragraph 9 of the statement of claim, the plaintiff sets out the false innuendos said to arise from the publication of the third article. The imputations pleaded are:
“(a) the plaintiff was a part of the art industry who was involved in the sale of fake artworks and/or participated in art fraud;
(b) a Brett Whiteley painting known as ‘Orange Lavender Bay’ was a fake and that it was obtained from the plaintiff in circumstances where he knew it to be a fake; and
(c) the plaintiff was a knowing participant in illegal conduct.”
In support of these imputations, the plaintiff relies upon the whole of the third article. No specific passage is identified in respect of any particular imputation.
In paragraphs 10 and 11 of the statement of claim, a cause of action is pleaded against the second defendant. In paragraph 10, the plaintiff asserts reliance upon all of the words in the third article attributed to the second defendant. Whilst relying on all the words attributed to the second defendant in the third article, the plaintiff relies specifically on the following quote attributed to the second defendant:
“It is a joke and unfortunately there are people in the industry who are in on the joke. If the fakes that are being created are now worth a million dollars it’s clear that the people who are making these fakes have become emboldened.
The latest picture is supposed to have changed hands for $1 million plus. If it were $1 million of counterfeit notes sitting on the table, I am certain the police would not give the money back after a complaint was withdrawn.”
In paragraph 11 of the statement of claim, the plaintiff pleads the false innuendos in relation to the words spoken by the second defendant. The imputations pleaded are:
“(a) the plaintiff was a participant in the art industry who sold artworks that were fake in the knowledge that they were fake;
(b) the plaintiff would continue to knowingly sell fake artworks if given the opportunity; and
(c) the plaintiff was a knowing participant in illegal conduct.”
The fourth article is dealt with in paragraphs 12 to 17 of the statement of claim. There is a claim made against the first defendant in relation to the publication of the fourth article, and there are claims against the second and third defendants in relation to words attributed to each of them in the fourth article.
In paragraph 13 of the statement of claim, the plaintiff pleads four false innuendos said to arise from the publication of the fourth article. The imputations pleaded are:
“(a) the works described in the article were fake and were known by the plaintiff to be fake;
(b) the plaintiff was aware that the artworks were fake yet represented that they were authentic;
(c) the plaintiff was a knowing participant in illegal conduct; and
(d) the plaintiff has not sought to defend himself against the serious allegations that have been made and in those circumstances he is more likely to be guilty of the conduct alleged.”
In support of these four imputations, the plaintiff relies upon the whole of the fourth article. However, identified passages are specifically relied upon in respect of imputations 13(a), 13(b) and 13(c). In respect of imputation 13(a), the following passage is relied upon:
“Lavender Bay Through the Window is one of three suspect Whiteley works that have emerged recently, all of which are listed on a consignment note purportedly from 1988.”
In respect of imputation 13(b), the following passage is relied upon:
“In Ms Whiteley’s opinion, all three paintings are fake – and The Age understands that Ms Sloggett, who is bound by client confidentiality, backs her judgment on the two that have been seen: Big Blue Lavender Bay and Orange Lavender Bay.”
In respect of imputation 13(c), the following passage is relied upon:
“’The fact that Gant has not called this product disparagement adds to the suspicion about these pictures … and it continues to ruin the marketability of Brett Whiteley’s work,’ Mr Nall said.”
In paragraph 14 of the statement of claim, the quote of the second defendant (Mr Nall) set out in the previous paragraph is pleaded against him. In paragraph 15, the imputations said to arise from this statement of the second defendant are set out as follows:
“(a) the plaintiff was involved in the sale and/or promotion of three artworks that were fake in the knowledge that they were fake;
(b) the plaintiff was a knowing participant in illegal conduct; and
(c) the plaintiff has not sought to defend himself against the serious allegations that have been made and in those circumstances he is more likely to be guilty of the conduct alleged.”
In paragraph 16 of the statement of claim, the plaintiff identifies the words of the third defendant relied upon for his cause of action against her in relation to the fourth article. The passages relied upon are as follows:
“The artist’s widow, Wendy, is furious that this potential fraud of about $4.5 million is not being investigated by the police.
…
In Ms Whiteley’s opinion, all three paintings are fake … .”
In paragraph 17 of the statement of claim, these statements of the third defendant are alleged to mean:
“(a) the plaintiff was involved in the sale and/or promotion of three artworks that were fake in the knowledge that they were fake; and
(b) the plaintiff was a knowing participant in illegal conduct.”
Paragraphs 18 to 21 of the statement of claim deal with the fifth article. The claims in relation to this article are against the first defendant and the third defendant. In paragraph 19 of the statement of claim, the plaintiff sets out the false innuendos said to arise from the publication of the fifth article. The imputations pleaded are:
“(a) three works [of][6] Whiteley described in the article were fake and were known by the plaintiff to be fake;
(b) the plaintiff was aware that the artworks were fake yet represented that they were authentic; and
(c) the plaintiff was a knowing participant in illegal conduct.”
[6]I have inserted this word as neither Brett Whiteley nor the third defendant actually describe three works in the fifth article. More correctly, three works of Brett Whiteley are described in the article.
In support of these three imputations, the plaintiff relies upon the whole of the fifth article. However, particular reliance is placed upon specified passages in relation to each imputation. In relation to imputation 19(a), the following passage is relied upon:
“But we digress. Not that Wendy minds much. At least we’re not talking about the elephant in the room. Although she knows it can’t [be] avoided. ‘I was wondering when you’d get onto that,’ she says, when asked about the three fake paintings purportedly by Whiteley that have emerged on the art market this year, and for which three unwitting buyers forked out a total of $4.5 million.
‘I’m sick of talking about them. I don’t know where it’s going to go’, says Wendy, who refuses to take action alone. ‘I don’t want to spend my life being angry running around after some crooks.’”
In respect of imputation 19(b), particular reliance is placed upon the following passage:
“The source of at least two of the purported Whiteleys is controversial Melbourne art dealer Peter Gant. Steven Nasteski, who bought one of the alleged fakes, Orange Lavender Bay, for $1.1 million, filed a police complaint then withdrew it, seeking, instead a refund.”
With respect to imputation 19(c), two passages are specifically relied upon, the passage “I don’t want to spend my money being angry running around after some crooks”, and another quote attributed to the third defendant:
“Ask the police commissioner to direct one of his people to take this seriously, because it is quite serious, and they should be doing it. It is a serious issue but it is a bigger issue than just me or Brett.”
In paragraph 20 of the statement of claim, the plaintiff identifies the third defendant’s words in the fifth article about which he makes complaint. The words are:
“I’m sick of talking about them, I don’t know where it’s going to go … .
I don’t want to spend my life being angry running around after some crooks.
…
Ask the police commissioner to direct one of his people to take this seriously, because it is quite serious, and they should be doing it. It is a serious issue but it is a bigger issue than just me or Brett.”
In paragraph 21 of the statement of claim, the plaintiff asserted that these words attributed to the third defendant meant and were understood to mean:
“(a) the plaintiff was involved in the sale and/or promotion of three artworks that were fake in the knowledge that they were fake; and
(b) the plaintiff was a knowing participant in illegal conduct.”
In paragraph 22, an allegation of damage is made in respect of the publication of each article (paragraph 22(b) in respect of the second article, paragraph 22(c) in respect of the third article, paragraph 22(d) in respect of the fourth article and paragraph 22(e) in respect of the fifth article).
In paragraph 23 of the statement of claim, an allegation of damage is made in respect of the second defendant’s statements referred to in the third and fourth articles. In paragraph 24 of the statement of claim, an allegation of damage is made in respect of the third defendant’s statements referred to in the fourth and fifth articles.
Finally, paragraph 25 of the statement of claim is in the following terms:
“Further, none of the defendants at any time prior to either of (sic) any of the first to fifth publications:
(a) showed the plaintiff the content of the proposed publication;
(b) gave the plaintiff any or any sufficient opportunity to consider the allegations that were to be raised in the publications and to provide an adequate response to same; or
(c) afforded an opportunity to the plaintiff to demonstrate the authenticity of the alleged fake Brett Whiteley artworks;
in circumstances where The Age had previously been put on notice by way of letter dated 2 February 2009 and/or letter dated 22 October 2010 as to the plaintiff’s intention to sue for defamation.”
Imputations: the principles to be applied
I turn now to consider the various complaints made by each defendant in respect of the imputations pleaded by the plaintiff. Before doing so, it is necessary to set out some relevant principles.
The principles for determining whether or not a matter complained of is capable of conveying particular imputations were summarised by Hunt J in Farquhar v Bottom.[7] His Honour said:[8]
“In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v Skelton ([1063] SR (NSW) 644). I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence: Slatyer v Daily Telegraph Newspaper Co Ltd ((1908) 6 CLR 1 at 7); who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland ((1910) 2 Ir R 577 at 586); nor avid for scandal: Lewis v Daily Telegraph Ltd ([1964] AC 234 at 260).
This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (supra at 258); Jones v Skelton (supra at 650); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412). It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer: Lewis v Daily Telegraph Ltd (supra at 277); Morgan v Odhams Press Ltd ([1971] 2 All ER 1156 at 1163); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412); Middle East Airlines Airliban SAL v Sungravure Pty Ltd ([1974] 1 NSWLR 323 at 34).”
[7][1980] 2 NSWLR 380.
[8]Ibid at pp 385-6.
In Soultonov v The Age Company Limited & Another,[9] Kaye J described the hypothetical ordinary reasonable reader in the following terms:[10]
“The issue which I must determine on the defendants’ summons is a question of law, namely, whether the article was reasonably capable of conveying the imputation, pleaded by the plaintiff, to the ordinary reasonable reader. The hypothetical “ordinary reasonable” reader has been described as an ordinary person who does not live in an ivory tower, and who reads between the lines in the light of his or her general knowledge and experience of worldly affairs. Such a reader is described by the law as someone who is not “avid for scandal” and who is neither “unusually suspicious nor unusually naïve”. He (or she) does engage in a degree of loose thinking, and is understood to read between the lines. In particular, it is important to take into account that the ordinary reasonable reader is a lay person, and not a lawyer, and that his or her capacity for implication is much greater than that of a lawyer. On the other hand, as observed by Mason J in Mirror Newspapers Limited v Harrison, it is necessary to draw a distinction between the reader’s understanding of what the article is actually saying, and a judgment or conclusion which the reader may reach as a result of his or her own beliefs and prejudices after reading the particular matter in question.”[11]
[9](2009) 23 VR 182.
[10]Ibid at [11].
[11]Footnotes omitted.
Many authorities have dealt with the rules relating to the pleading of imputations. Whilst whether an imputation has been properly pleaded is to be determined as a matter of practical justice, the following propositions emerge from the authorities:
(a)First, distinct meanings should be pleaded – and the test for distinctiveness is whether the evidence required to justify each meaning would be substantially different.
(b)Secondly, distinct meanings should be distinctly pleaded – because of the potential for a rolled up plea to cause confusion.
(c)Thirdly, an imputation must express the precise act or condition asserted of or attributed to the plaintiff or of which the plaintiff is charged.
(d)Fourthly, an imputation should represent the final distillation of the alleged defamatory meaning.[12]
[12]See generally, Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519, 543; Lewis v Daily Telegraph Limited [1964] AC 234, 282; Taylor v Jecks (1993) 10 WAR 309, 321; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 137; Sungravura Pty Ltd v Middle East Airlines Airliban S.A.L. (1975) 134 CLR 1, 13-14; Vitale v Bednall [2001] WASC 278, [8] and Lim v TVW Enterprises Limited [2002] WASC 214, [43]-]57].
The principals to be applied when determining whether an imputation has been properly pleaded on the one hand, or is too vague and imprecise on the other hand, were discussed by Kaye J in Trkulja v Google Inc Llc & Anor.[13] His Honour said:[14]
“First, the question, whether an imputation has been properly pleaded, is to be determined as a matter of practical justice, rather than as an exercise of close semantic or linguistic refinement. Secondly, the question whether a particular imputation is sufficiently specific depends, essentially, on the context in which it is pleaded. In some publications, the allegation about a plaintiff may be so unspecific as to give rise only to the most general imputation. For example, a billboard alleging that a particular plaintiff is “corrupt” may, in an appropriate case, only give rise to an imputation pleaded in the most general form. On the other hand, and by contrast, a publication may, by its context, give rise to one or more possible meanings of a particular condition attributed to the plaintiff. In such a case, where the plaintiff pleads that the publication imputed that condition to him, the plaintiff is obliged to specify how and in what respects that condition is conveyed in the imputation.
Those two propositions can be derived from the leading judgment of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation. In that case, the primary judge had struck out three imputations in a statement of claim, which alleged “corrupt” conduct or acts of the plaintiff council. The Court of Appeal (by majority) upheld that decision. In doing so, Gleeson CJ stated the principle as follows:
‘The requirement that a plaintiff must ‘specify’ the act or condition which he claims was attributed to him, that is to say, the statement which he says is made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. ... Furthermore, whilst the principles relevant to the plaintiff’s obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. ... If a defendant has posted in a public place a sign that simply says ‘X is disgusting’, the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter’.”[15]
[13][2010] VSC 226.
[14]Ibid at paragraphs [19] and [20].
[15]Footnotes omitted.
Finally, as to whether a publication is defamatory, the test of what is defamatory was set out and explained by French CJ, Gummow, Kiefel and Bell JJ in Radio 2UE Sydney Pty Ltd v Chesterton[16] as follows:
“A person’s reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.
Lord Atkin proposed such a general test in Sim v Stretch, namely that statements might be defamatory if ‘the words tend to lower the plaintiff in the estimation of right-thinking members of society generally’. An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as too narrow. It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff’s reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society.
The common law test of defamatory matter propounded by Lord Atkin was applied in Slatyer, although Griffith CJ expressed some concern about the ambiguity of the expression ‘right thinking members of the community’. The general test, stated as whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, was confirmed by this court in Mirror Newspapers, Chakravarti v Advertiser Newspapers Ltd and by Callinan and Heydon JJ in John Fairfax Publications Pty Ltd v Gacic. Gummow and Hayne JJ in John Fairfax referred to the likelihood that the imputations might cause ‘ordinary decent folk’ in the community to think the less of the plaintiff.
Putting aside Lord Atkin’s additional requirement of being ‘right-thinking’, the hypothetical audience, that is to say the referees of the issue of whether a person has been defamed, has been regarded as composed of ordinary reasonable people, whom Spencer Bower described as ‘of ordinary intelligence, experience, and education’. Such persons have also been described as ‘not avid for scandal’ and ‘fair-minded’. They are expected to bring to the matter in question their general knowledge and experience of worldly affairs.
In Reader’s Digest Brennan J explained that any standards to be applied by the hypothetical referees, to an assessment of the effect of imputations, are those of the general community:
‘... Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ... being a standard common to society generally ...’.”[17]
[16](2009) 238 CLR 460, [3] – [7].
[17]Footnotes omitted.
I turn now to consider the various imputations pleaded by the plaintiff.
Imputation 7(a)
Before considering the text of imputation 7(a), it is necessary to say something about the way in which the plaintiff has pleaded the imputations he relies upon. The argument in this matter proceeded on the basis that each imputation pleaded in each sub-paragraph of the statement of claim was a standalone imputation: that is, each sub-paragraph constituted a distinct meaning which the words complained of were alleged to bear. However, rather than pleading each imputation in one sentence, the pleader has pleaded what appear to be composite meanings for each article or statement complained of. For example, in respect of the second article, on the face of the pleading, it might be contended that the plaintiff pleads only one imputation – which imputation contains three clauses.
Notwithstanding the potential for confusion caused by the form of the pleading, as I have said above, the parties proceeded on the basis that each statement in each sub-paragraph of the statement of claim was a separate imputation. In the circumstances, I am prepared to proceed on that basis. However, for reasons which I will come to, that approach creates difficulty in respect of some of the later imputations (for example, 13(b), 13(d), 15(c) and 19(b)).
Imputation 7(a) is in terms “the plaintiff sold artworks that were fake in the knowledge that they were fake”. The first defendant contends that imputation 7(a) is not defamatory. The first defendant submits that many people have on display in their homes and elsewhere reproductions of famous artworks that they have acquired with full knowledge that they were not the original artwork. Further, it is put that there is obviously a legitimate market for the knowing sale and supply of fake artworks. Ultimately, it is put that to say of a plaintiff that he or she knowingly sells fake artworks without more is incapable of diminishing that person’s reputation. There is undoubted force in this submission.
From the plaintiff’s submissions in these applications, it is apparent that his case is that he has been defamed by allegations that he has sold as genuine, artworks which he knew to be fake. Specifically, the plaintiff does not seek to run a case that it is defamatory to say that a person knowingly sold, as fakes (or reproductions), fake (or reproduction) artwork. A problem with imputation 7(a) is that it is not confined to the case the plaintiff wishes to run. In its current form, imputation 7(a) is capable of being relied upon to support two cases:
(a)first, a case that it is defamatory to say of someone that he or she sells, as fakes, artworks that he or she knows to be fake; and
(b)secondly, a case that it is defamatory to say of someone that he or she sells, as genuine, artworks that he or she knows to be fake.
Even if the plaintiff could argue that it is defamatory to say of someone that he or she sells, as fakes, artworks that he or she knows to be fake, that is not the case the plaintiff is actually running. Leaving imputation 7(a) in its current form has the capacity to confuse the jury as to the basis upon which the plaintiff seeks to succeed in respect of the second article. The plaintiff sought to answer this problem by submitting:
“The imputation arising from paragraph 7(a) is not merely alleging the sale of reproduction artworks. The concept of a fake is the sale of an artwork which was a forgery in circumstances where it is represented as being that of the original artist. That is to say, that ‘they were fakes masquerading as the genuine article’.”[18] (emphasis in original)
[18]Paragraph 3 of the plaintiff’s outline of argument dated 19 April 2011.
In support of this submission, reliance was placed upon the decision of Vickery J in Blackman v Gant.[19] Whilst in some circumstances, context may confine the meaning of the word “fake”, nothing in Blackman v Gant confines (or purports to confine) the meaning of “fake” (or the meaning of imputation 7(a)) in the way contended for by the plaintiff, or so as to remove the ambiguity and lack of precision I have already identified. At the very least, the current form of imputation 7(a) has the capacity to confuse by opening up the possibility of a case which the plaintiff does not seek to run (and the first defendant submits is not, in any event, capable of being run). Paragraph 7(a) is thus embarrassing and must be struck out.
[19][2010] VSC 229, and in particular at [2]-[4].
Imputation 7(b)
Imputation 7(b) is in terms “the plaintiff fabricated a catalogue so as to demonstrate proof of the authenticity of a work by Brett Whiteley and in respect of which claims had been made that the Brett Whiteley painting was a fake”.
The relevant passages in the second article relating to imputation 7(b) are as follows:
“Another name linked to the suspect work is Carlton dealer Peter Grant, who was the subject of a landmark Supreme Court case and in June this year was found in breach of the Fair Trading Act for selling three fake drawings, two attributed to Charles Blackman and one to Robert Dickerson.
The Sydney collector was told that Orange Lavender Bay had been shown in an exhibition, A Private Affair, held in 1989 by Mr Gant. A catalogue was provided to the Sydney collector as proof of the painting’s authenticity - but the catalogue itself appears to be fabricated. The collector was told that the catalogue was rare and that only two copies existed, one at the State Library of Victoria and the other at the National Gallery of Victoria. However, this was found to be untrue and the Sydney collector's lawyer wrote to Mr Playfoot stating so. [Inquiries by The Age confirm that neither the NGV nor the State Library has original copies of the catalogue in their collections.]
In response to several questions raised by the Sydney collector’s lawyer, in a letter dated June 7, Mr Playfoot's lawyer replied: ’It is not our intention to enter [sic] long correspondence on all the matters you allege except to say that our client acted for Peter Gant (who was acting on behalf of his client) in selling Orange Lavender Bay. To the best of our client’s knowledge, the painting is genuine. Our client has no reason to suspect or doubt its authenticity.’”
The first defendant submits that the second article is silent as to:
(a)who fabricated the catalogue;
(b)when the catalogue was fabricated;
(c)the reason why the catalogue was fabricated;
(d)who provided the fabricated catalogue to the Sydney collector;
(e)who represented to the Sydney collector that the fabricated catalogue was proof of the painting’s authenticity; and
(f)who told the Sydney collector that the fabricated catalogue was rare and that only two copies existed.
Further, the first defendant submitted that if an inference was to be drawn as to who represented to the Sydney collector that the fabricated catalogue was proof of the painting’s authenticity, or if an inference was to be drawn as to who told the Sydney collector that the fabricated catalogue was rare and that only two copies existed, then the second article appears to infer that it must have been Mr Playfoot who made such statements.
It is true that the second article does not in terms state the matters referred to in (a) to (f) above. However, the second article records Mr Playfoot’s denial of any knowledge that the work was a fake. Additionally, the second article records Mr Playfoot’s lawyer as saying that Mr Playfoot acted for the plaintiff in selling the work.
It is not my role to determine whether the second article actually conveys imputation 7(b). The only issue at this stage is whether the second article is capable of conveying imputation 7(b). Further, it is to be remembered that the ordinary, reasonable reader can, and does, read between the lines. The critical question is whether a jury, properly instructed, could reasonably conclude that the second article conveyed, in its ordinary and natural meaning, the meaning alleged by the plaintiff. Reading the second article as a whole, acknowledging that a degree of loose thinking and reading between the lines may occur, and noting Mr Playfoot’s lawyer’s statement that his client acted for the plaintiff, in my view a jury, properly instructed, could reasonably conclude that the second article conveyed imputation 7(b). In the result, the first defendant’s attack on imputation 7(b) fails.
Imputation 7(c)
Imputation 7(c) is in terms “the plaintiff was a knowing participant in illegal conduct”. The first defendant contends that imputation 7(c) is defective in form.
In support of its contention, the first defendant submits that imputation 7(c) is pleaded at an embarrassingly high level of generality in a way that has a tendency to prejudice, embarrass or delay the fair trial of this proceeding within the meaning of rule 23.02(c).[20] Further, it is submitted that a defendant “could potentially meet an imputation to the effect of meaning 7(c) by relying on, for example, speeding or parking tickets issued to the plaintiff”.
[20]Supreme Court (General Civil Procedure) Rules 2005.
There is force in the first defendant’s submissions. In part, the matter falls to be assessed by reference to the level of generality in the publication complained of (in this case, the second article). It would be hard for a defendant to complain about an imputation such as 7(c) if it was pleaded in respect of an article that made high level and very general allegations of criminal conduct against a plaintiff. However, that is not this case.
Imputation 7(c) (like all imputations) should be a final distillation of the defamatory essence of the publication complained of.[21]
[21]Cf Sungravure Pty Ltd v Middle East Airlines Airliban S.A.L. (1975) 134 CLR 1, 15 (per Stephen J, in dissent, but not on this issue).
The language used in the second article is not so loose, or of such high level generality, so as to justify an imputation as broad as imputation 7(c). Accordingly, imputation 7(c) must be struck out.
Imputation 9(a)
Imputation 9(a) is in terms “the plaintiff was a part of the art industry who was involved in the sale of fake artworks and/or participated in art fraud”. The first defendant’s complaints concerning this meaning are as to its form.
The tenor of the whole of the plaintiff’s case is that the publications he complains of allege that he has knowingly sold, as genuine, fake artworks. Like imputation 7(a), imputation 9(a) suffers from ambiguity and lack of precision. On one view, the words “the plaintiff was a part of the art industry who was involved in the sale of fake artworks” in imputation 9(a) could be read as asserting some innocent involvement. That is clearly not the plaintiff’s case. The plaintiff should plead his case. The problem is not remedied by tacking on to the end of the imputation “and/or participated in art fraud”. The practice of making disjunctive allegations in one imputation should be discouraged. It is only rarely that it will be appropriate to do so.
For these reasons, imputation 9(a) must be struck out. Had it been necessary to consider the use of the word “participated”, I would have also concluded that, in the circumstances of this case, the use of the word “participated” (without more – for example, an imputation might say “participated by [doing some specified act]”) was impermissibly imprecise.[22]
[22]The word “participated” was characterised by Hunt J in Armitage v Double Bay Newspapers Pty Ltd (unreported Supreme Court of New South Wales, 26 September 1991) as a “weasel word” which should not be used in the pleading of an imputation unless the imputation itself makes clear the sense in which the word is to be understood. See further Lim v TVW Enterprises Limited [2002] WASC 214, [46] and Vitale v Bednall [2001] WASC 278, [20]. But cf Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763, [23].
Imputation 9(b)
Imputation 9(b) is in terms “a Brett Whiteley painting known as Orange Lavender Bay was a fake and that it was obtained from the plaintiff in circumstances where he knew it to be a fake”. The first defendant attacks imputation 9(b) on the same basis that it attacked imputation 7(a). There is force in this attack.
Again, the principal problem in respect of this imputation is the failure to confine it to the case the plaintiff wishes to put: that is, allegations that the plaintiff knowingly dealt in fake artwork that was represented to be genuine. For this reason alone, imputation 9(b) must be struck out.
However, the first defendant relies upon an additional basis for contending that imputation 9(b) must be struck out. The first defendant contends that imputation 9(b) is incapable of arising. The submission is that the third article only refers to the sale of Orange Lavender Bay in the following terms:
“Orange Lavender Bay was sold to Sydney car dealer, Steven Nasteski by Melbourne art dealer John Playfoot last year.
Mr Playfoot claims he genuinely believed the painting was authentic and will support a police inquiry. He has agreed to refund Mr Nasteski and will try to recuperate his money from Mr Gant, who was the agent for the painting’s previous, unnamed owner.
Mr Nall says it’s imperative that Mr Gant and Mr Playfoot name the previous owner.”
The first defendant submits that from those paragraphs there is no reference in the third article to the “circumstances” in which Orange Lavender Bay “was obtained from the plaintiff”, nor to the state of the plaintiff’s knowledge. That may be so. However, I am not persuaded that it is not possible for the plaintiff to plead an appropriate defamatory imputation in relation to references to Orange Lavender Bay in the third article. That said, for the reasons already given, the current imputation 9(b) will be struck out.
Imputation 9(c)
Imputation 9(c) is identical to imputation 7(c). It must be struck out for the reasons given in respect of imputation 7(c). The language used in the third article is not so loose, or of such high level generality, as to justify an imputation as broad as 9(c).
Imputation 11(a)
Imputation 11(a) is in the following terms: “the plaintiff was a participant in the art industry who sold artworks that were fake in the knowledge that they were fake”. The second defendant attacks this imputation, advancing arguments of the same kind advanced by the first defendant in respect of the first defendant’s attack on imputation 7(a). For the reasons given in respect of imputation 7(a), imputation 11(a) must be struck out.
Imputation 11(b)
Imputation 11(b) is in terms “the plaintiff would continue to knowingly sell fake artworks if given the opportunity”. This imputation falls for the same reason that imputation 11(a) fell: it fails to be confined to the plaintiff’s real case that he was alleged to be selling, as genuine, fake artworks, and would continue to do so.
Imputation 11(c)
Imputation 11(c) is identical to imputations 7(c) and 9(c). For the reasons given in respect of imputation 7(c), imputation 11(c) must be struck out. Assuming, in the plaintiff’s favour, that imputation 11(c) is capable of arising from the second defendant’s words, the second defendant’s words are not of such a high level generality as to justify an imputation as broad as 11(c).
Imputation 13(a)
Imputation 13(a) is in terms “the works described in the article were fake and were known by the plaintiff to be fake”. The problems with this imputation are manifest.
First, the opening words (“the works described in the article were fake”) attribute no disreputable characteristic or conduct to the plaintiff. Secondly, simply knowing particular works “to be fake”, says nothing about the person who has that knowledge. More is required. As currently pleaded, imputation 13(a) is not capable of being defamatory of the plaintiff. Accordingly, this imputation must be struck out.
Imputation 13(b)
Imputation 13(b) is in terms “the plaintiff was aware that the artworks were fake yet represented that they were authentic”. One immediately asks, “What artworks?”.
Imputation 13(b) appears to build on imputation 13(a), rather than being a standalone imputation. It may be that “the artworks” referred to in imputation 13(b) are meant to refer to “the works described in the article” referred to in imputation 13(a). This uncertainty is brought about by the failure of the plaintiff to plead in separate sentences the imputations he relies upon.[23]
[23]See paragraph 45 above.
A further problem with imputation 13(b) is that it is silent as to the circumstances in which the alleged representation was made. It might be one thing to express an opinion in one set of circumstances. It might be another to make a representation as to genuineness to a potential purchaser (or to a person to whom the work is being given as security for money owed). Given the terms of the fourth article, there is no justification for the lack of precision in imputation 13(b). Imputation 13(b) must be struck out.
Imputation 13(c)
Imputation 13(c) is identical to imputations 7(c), 9(c) and 11(c). For the reasons given in respect of imputation 7(c), imputation 13(c) must be struck out. Again, the language used in the fourth article is not so loose, or of such high level generality, so as to justify an imputation as broad as imputation 13(c).
Imputation 13(d)
Imputation 13(d) is in terms “the plaintiff has not sought to defend himself against the serious allegations that have been made and in those circumstances he is more likely to be guilty of the conduct alleged”. The problems with this imputation are manifest. One immediately asks, “What serious allegations?”, “What circumstances?” and “What conduct alleged?”. None of these questions can be answered from the pleading. These questions are not answered by reference to the relevant article. The question is not whether a defendant knows what meaning was in fact conveyed by its words (or even what it intended to convey by its words) but whether it knows what meaning the plaintiff will assert was in fact conveyed by its words to the ordinary, reasonable reader.[24]
[24]See Whelan v John Fairfax & Sons Limited (1988) 12 NSWLR 148, 154 (Hunt J).
Further, there is no statement in the fourth article that the plaintiff “has not sought to defend himself” against any claims. To the contrary, whilst the fourth article records that the plaintiff “hung up when The Age called [on 10 August 2010]”, it also records that the plaintiff had “previously denied that Orange Lavender Bay is fake”. If the pleader intended to convey that the fourth article meant that the plaintiff had not sought to defend himself to The Age in respect of specified allegations and that his failure to do so made it likely that he was guilty of particular specified discreditable conduct, then the pleader could (and should) have done so. The quote attributed to the second defendant (“The fact that Gant has not called this product disparagement adds to the suspicion about these pictures …”) does not assist the plaintiff in establishing that imputation 13(d) (if otherwise permissible) is capable of arising from the publication of the fourth article.
Additionally, the use of the word “more” in imputation 13(d) is confusing. Either the plaintiff is likely to be guilty of specified conduct or not. As to an allegation that he is more likely to be guilty of specified conduct, one asks “More likely than what?”. For all these reasons, imputation 13(d) must be struck out.
Imputation 15(a)
Imputation 15(a) is in terms “the plaintiff was involved in the sale and/or promotion of three artworks that were fake in the knowledge that they were fake”. This imputation suffers from the defects I have already identified in respect of imputations 7(a), 11(a) and 13(a). Accordingly, it must be struck out.
However, there is a more fundamental problem. Imputation 15(a) is said to be the meaning of the words used by the second defendant as attributed to him in the fourth article. The words relied upon by the plaintiff are:
“The fact that Gant has not called this product disparagement adds to the suspicion about these pictures … and it continues to ruin the marketability of Brett Whiteley’s work”.
No matter how one looks at those words, they cannot mean (without more, or without some intervening step or steps) that “the plaintiff was involved in the sale and/or promotion of three artworks that were fake in the knowledge that they were fake”. The fact that imputation 15(a) is incapable of arising from the words relied upon by the plaintiff is a further ground for striking out imputation 15(a).
Imputation 15(b)
Imputation 15(b) is in terms “the plaintiff was a knowing participant in illegal conduct”. Again, this imputation is identical to imputations 7(c), 9(c), 11(c) and 13(c). It must be struck out for the reasons given in respect of those imputations. Additionally, like imputation 15(a), imputation 15(b) is incapable of being conveyed by the words “the fact that Gant has not called this product disparagement adds to the suspicion about these pictures … and it continues to ruin the marketability of Brett Whiteley’s works” contained in the fourth article.
Imputation 15(c)
Imputation 15(c) is in terms “the plaintiff has not sought to defend himself against the serious allegations that have been made and in those circumstances he is more likely to be guilty of the conduct alleged”. Imputation 15(c) is identical to imputation 13(d). All of the defects identified in the form of imputation 13(d) are present in imputation 15(c). Imputation 15(c) must be struck out for (at least) the reasons given in relation to the defects relating to imputation 13(d), that is:
(a)the “serious allegations” are not specified;
(b)the “circumstances” referred to are not identified;
(c)the use of the word “more” is confusing; and
(d)the “conduct alleged” is not identified.
Imputation 17(a)
Imputation 17(a) is in terms “the plaintiff was involved in the sale and/or promotion of three artworks that were fake in the knowledge that they were fake”. Whilst this imputation is said to arise from the third defendant’s words as published in the fourth article, it is to be noted that it is identical to imputation 15(a), which was said to arise from the second defendant’s words as reported in the fourth article.
Imputation 17(a) must be struck out for the same reasons given with respect to imputation 15(a). It has the same problems as to form. Further, when one confines the material from which it is said to be drawn to the third defendant’s own words, the imputation is incapable of arising. Putting to one side the problems with form, for imputation 17(a) to be capable of arising as against the third defendant, the plaintiff would have to plead (and later prove) that the third defendant was responsible for parts of the article not attributed to her.[25]
[25]I should say that on the material to hand, any such plea would be entirely speculative.
The plaintiff sought to answer submissions made by the third defendant that imputations 17(a) and 17(b) could not arise from the words spoken by the third defendant as referred to in the fourth article, by saying that imputations 17(a) and 17(b) arose “from the context of the article as a whole coupled with the specific matters attributed to the third defendant”.[26] This submission was no answer to the third defendant’s contention. It is not alleged in the statement of claim that the third defendant was responsible for the whole of the fourth article (and, I interpolate, nor could it sensibly be so alleged in the absence of some extraordinary circumstance). It is thus not open to the plaintiff to seek to advance imputations alleged against the third defendant based upon material not alleged to have been attributed to her.[27] However, and in any event, for the reasons given above, imputation 17(a) will be struck out.
[26]See paragraph 21 of the plaintiff’s outline of argument dated 19 April 2001. A similar argument was made with respect to the third defendant’s words set out in the fifth article in relation to imputations 21(a) and 21(b).
[27]The same point is equally valid so far as the second defendant is concerned.
Imputation 17(b)
Imputation 17(b) is in terms “the plaintiff was a knowing participant in illegal conduct”. It is identical to imputations 7(c), 9(c), 11(c), 13(c) and 15(b). It must be struck out for the reasons given in respect of those imputations. Again, assuming (in the plaintiff’s favour) that imputation 17(b) is capable of arising from the third defendant’s words referred to in the fourth article, the third defendant’s words are not at such a high level of generality as to justify an imputation as general and vague as imputation 17(b).
Imputation 19(a)
Imputation 19(a) is in terms “three works Whiteley described in the article were fake and were known by the plaintiff to be fake”. In considering this imputation, I have considered it in the terms pleaded, and also as if the word “of” was inserted before the name ”Whiteley”.[28] Imputation 19(a) is identical to imputation 13(a), except that imputation 13(a) commences with the words “the works”, whereas imputation 19(a) commences with the words “three works Whiteley”. For present purposes, the difference is irrelevant. Imputation 19(a) suffers from the same defects as imputation 13(a). Imputation 19(a) must be struck out because it is defective, and for the reasons given in relation to the defects in imputation 13(a).
[28]See paragraph 28 and footnote 6 above.
Imputation 19(b)
Imputation 19(b) is in terms “the plaintiff was aware that the artworks were fake yet represented that they were authentic”. This imputation is identical to imputation 13(b). It contains the same defects. It must be struck out for the same reasons.
Imputation 19(c)
Imputation 19(c) is in terms “the plaintiff was a knowing participant in illegal conduct”. This imputation is identical to imputations 7(c), 9(c), 11(c), 13(c), 15(b) and 17(b). It must be struck out for the same reasons given in respect of those imputations. Put shortly, the language used in the fifth article is not so loose, or of such high level generality, so as to justify an imputation as broad as imputation 19(c).
Imputations 21(a) and (b)
Imputations 21(a) and (b) are alleged to arise from reported statements made by the third defendant in the fifth article. Notwithstanding that the statements attributed to the third defendant in the fifth article are different from the statements attributed to the third defendant in the fourth article, imputations 21(a) and (b) are identical to imputations 17(a) and (b) (which were the imputations said to arise from the statements attributed to the third defendant in the fourth article). Both imputations (21(a) and 21(b)) must be struck out for the reasons given in respect of imputations 17(a) and 17(b).
Paragraphs 10, 14, 16 and 20 of the statement of claim
Paragraphs 10, 14, 16 and 20 of the statement of claim are the paragraphs in which reference is made to what was said by the second and third defendants as referred to in the third, fourth and fifth articles. What I have said so far assumes that there is nothing embarrassing or impermissibly imprecise about paragraphs 10, 14, 16 and 20. I have dealt with the various imputations first, because that was the focus of the attack made by the defendants (or more precisely, the first and second defendants).
However, some of the plaintiff’s problems with pleading causes of action against the second and third defendants stem from the way in which paragraphs 10, 14, 16 and 20 of the statement of claim are pleaded. Ordinarily, a plaintiff wishing to sue a party quoted in an article would plead, as material facts, the precise words used by the party quoted. For example, the third defendant submits that the appropriate plea against her in relation to the fourth article would be that she spoke the following words:
“I am furious that this potential fraud of about $4.5 million is not being investigated by the police”, and “In my opinion, all three paintings are fakes.”
The plaintiff has not done this. Instead, the plaintiff has chosen to refer generally to words attributed to the second and third defendants in the various articles, and then to give particulars of various passages (which particulars are not always in themselves precise as to the boundaries of the passages).
In my view, there is an unacceptable level of generality in relation to paragraphs 10, 14, 16 and 20. The plaintiff should plead with precision the specific words that will be alleged against the second and third defendants and from which defamatory imputations are said to arise.
However, the third defendant submits that even when one identifies the various words she spoke that are relied upon by the plaintiff, no imputation defamatory of the plaintiff arises. Clearly, if the plaintiff only relies upon the third defendant saying (as reported in the fourth article), “I am furious that this potential fraud of about $4.5 million is not being investigated by the police”, and “In my opinion, all three paintings are fakes”, nothing in these words alone is defamatory of the plaintiff. The same might be said in respect of the fifth article from which it might be inferred that the third defendant said:
“I’m sick of talking about them. I don’t know where it’s going to go. I don’t want to spend my life being angry running around after some crooks”, and
“Ask the police commissioner to direct one of his people to take this seriously, because it is quite serious, and they should be doing it. It is a serious issue but it is a bigger issue than just me or Brett.”
The third defendant seeks judgment on the basis that the mere quotes identified by the plaintiff as being relied upon cannot give rise to any imputation defamatory of the plaintiff. That may be so. Indeed, the force of this submission is obvious. However, I am not at this stage prepared to conclude that there is no cause of action open to the plaintiff to be pleaded against the third defendant. It may be that the plaintiff can allege other words spoken by the third defendant or some extrinsic facts giving rise to a true innuendo. In my view, the plaintiff should be given an opportunity to make such a plea if the same is open on the facts known to him. For these reasons, I will not give judgment for the third defendant against the plaintiff at this stage. However, consistently with what I have said above, paragraphs 10, 14, 16 and 20 of the statement of claim must be struck out.
I turn now to consider the defendants’ remaining complaint – paragraph 25 of the statement of claim.
Paragraph 25 of the statement of claim
Paragraphs 22, 23 and 24 of the statement of claim make allegations of damage. They appear under the heading “Damage”. In paragraph 25, allegations are made that the plaintiff was not shown the content of any of the articles before publication, that the plaintiff was not given sufficient opportunity to provide an adequate response and that the plaintiff was not afforded an opportunity to demonstrate the authenticity of the allegedly fake Brett Whiteley works. Further, it is contended that the plaintiff was not shown the articles or given the opportunities described in circumstances where The Age had been put on notice that it was the plaintiff’s intention to sue for defamation.
Each of the defendants contends that paragraph 25 is embarrassing, and that the allegations in it are not relevant to any element of the causes of action sued upon or the relief sought by the plaintiff. Certainly, if it is intended that the facts in paragraph 25 support some claim for aggravated damages, it must be said that nowhere in the statement of claim is there an express claim for aggravated damages.[29]
[29]Cf s 35(2) of the Defamation Act 2005. But cf rule 13.07(3) of the Supreme Court (General Civil Procedure) Rules 2005 – but noting the abolition of the awarding of exemplary damages for defamation by s 37 of the Defamation Act.
The plaintiff’s submission justifying the inclusion of paragraph 25 in the statement of claim is in the following terms:
“In circumstances, where the plaintiff can demonstrate the authenticity of the works, but was not given the opportunity, it demonstrates the damage arising from the defamatory publications. The plaintiff is unequivocally putting the authenticity of the works in play and ‘rebutting’ any allegation of truth that might arise in a subsequent defence.”[30]
[30]Paragraph 28 of the plaintiff’s outline of argument dated 19 April 2011.
Paragraph 25 cannot be used to “rebut” some allegation of truth that may or may not be made by a defendant in a subsequent pleading. However, it is possible that the matters in paragraph 25 may bear on any assessment of damages. In the circumstances, I am not prepared to strike out paragraph 25 of the statement of claim in its entirety.
However, the allegations in paragraph 25 are made against all defendants. Specifically, it is alleged that none of the defendants showed the plaintiff the content of the proposed articles, and none of the defendants gave the plaintiff an opportunity to consider the allegations that would be raised in the articles. Whilst this pleading might survive at this stage against the first defendant, there is nothing pleaded in the statement claim articulating the basis upon which it might be said that either of the second or third defendants could have shown the plaintiff the content of the proposed articles, or given the plaintiff an opportunity to consider any allegations that might be raised in the articles that the first defendant was about to publish. Further, there is nothing in paragraph 25 that links the giving of notice to the first defendant to any act or omission complained of in relation to the second and third defendants. One might ask rhetorically how the giving of notice to The Age of the plaintiff’s intention to sue could or should have required the second or third defendants to give the plaintiff either of the opportunities pleaded in paragraph 25. In such circumstances, paragraph 25 requires amendment. Rather than striking it out at this stage, I will give the plaintiff leave generally to re-plead – which leave will include leave to re-plead paragraph 25.
Conclusion
For the reasons given above:
(a)there will be judgment for the first defendant on the claims made against it in paragraphs 2, 3 and 22(a) of the statement of claim;
(b)there will be judgment for the second defendant on the claims made against him in paragraphs 2, 4 and 5 of the statement of claim;
(c)the words “4 and/or” in paragraph 23 of the statement of claim will be struck out;
(d)paragraphs 7(a), 7(c), 9(a), 9(b), 9(c), 10, 11, 13(a), 13(b), 13(c), 13(d), 14, 15, 16, 17, 19(a), 19(b), 19(c), 20 and 21 of the statement of claim will be struck out; and
(e)the plaintiff will be given leave to file and serve an amended statement of claim.
I will hear the parties on the appropriate form of orders and costs.
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