Hue v The Vietnamese Herald Pty Ltd

[2009] NSWSC 1292

CITATION:	Hue v The Vietnamese Herald Pty Ltd [2009] NSWSC 1292
HEARING DATE(S):	19 November 2009
JUDGMENT DATE :	27 November 2009
JURISDICTION:	Common Law
JUDGMENT OF:	McCallum J
DECISION:	(1) Imputations 10(iv), 12(ii) and 14(i), (iii) and (v) are struck out. (2) I grant leave to the plaintiff to file a further amended statement of claim in accordance with these reasons.
CATCHWORDS:	DEFAMATION – interlocutory application – whether imputations pleaded by plaintiff are reasonably capable of being conveyed by the matter complained of
CATEGORY:	Procedural and other rulings
CASES CITED:	Favell v Queensland Newspapers Pty Limited [2005] HCA 52 Mayfield-Smith v Mirror Newspapers (1982) 2 NSWLR 419
PARTIES:	Thich Nhu Hue (Plaintiff) The Vietnamese Herald Pty Ltd (1st Defendant) Loc Van Nguyen (2nd Defendant) Thi Thanh Son Nguyen (3rd Defendant) Anh Dung Le (4th Defendant) Xiem Van Bui (5th Defendant) Ty Van Nguyen (6th Defendant)
FILE NUMBER(S):	SC 20396/09
COUNSEL:	Mr C Dibb (Plaintiff) Mr R Brender (1st & 4th Defendants) Mr R Glasson (2nd & 3rd Defendants)
SOLICITORS:	Ledinh Lawyers (Plaintiff) Than & Co (1st & 4th Defendants) Kennedys (2nd & 3rd Defendants)

- 10 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

27 NOVEMBER 2009

20396/09 THICH NHU HUE v THE VIETNAMESE HERALD PTY LTD

JUDGMENT

1 HER HONOUR: These are proceedings for defamation commenced by Thich Nhu Hue arising out of a series of articles concerning his conduct as a Buddhist monk. The application before the Court concerns objections raised by some of the defendants as to the manner in which the plaintiff has pleaded his claim in an amended statement of claim filed on 4 September 2009.

2 The first matter complained of is an article alleged to have been published in the “Viet Luan” newspaper, also known as the Vietnamese Herald. The first and fourth defendants in these proceedings are, respectively, the company that owns that newspaper and the sole director and shareholder of that company. Those parties have not raised any objections to the manner in which the plaintiff has pleaded his claim. A defence has been filed on their behalf and they participated in the present application only as observers. However, two of the imputations pleaded against those parties are in the same terms as imputations the subject of objection on the part of the second and third defendants. Counsel for the plaintiff accepted, accordingly, that my rulings in respect of those imputations would apply to the claim against the first and fourth defendants, notwithstanding the fact that they have not raised the objection themselves.

3 The second, third, fourth, fifth and sixth matters complained of are all alleged to have been published by the proprietor of the Vietnamese newspaper called Nam Uc Tuan Boa, also referred to in the pleading variously as “the South Australian Weekly News” and “the South Australian Weekly Times”. Each of the second and third defendants is an individual who is alleged to be one of the owners and publishers of that newspaper.

4 Each of the six matters complained of was published in the Vietnamese language. At the hearing of the present application, the plaintiff provided translations of the articles which I am told are agreed between the parties.

The second matter complained of

5 The second matter complained of (annexure D to the original statement of claim) is headed “Return the Holiness to Phap Hoa Pagoda”. The article contains a discussion of recent stories said to have exposed the unholy actions of the plaintiff. The plaintiff is a Buddhist monk and the leader of Phap Hoa Pagoda, a Buddhist temple in South Australia. The first imputation identified by the plaintiff in respect of the second matter complained of is imputation 10(i) in the amended statement of claim:

“The plaintiff is a hypocrite who pretends to be a holy man for his own material gain.”

6 The second and third defendants complain that the imputation is incapable of arising on the basis that the expression “for his own material gain” does not appear in the article and may not otherwise be inferred from its terms.

7 Although those words do not appear in terms, there are statements in the article which tend to convey the sense that material gain was the plaintiff’s object in portraying himself as a holy man. In particular, paragraphs 16 to 19 openly accuse the plaintiff of having lived by public donation for nearly thirty years and invite him to “return whatever is not [his] to the real owner” in order that he might have peace of mind in the last days of his life.

8 Elsewhere, the article refers to the earlier stories “exposing the unholy actions” of the plaintiff. In paragraph 9, it is stated, in what might be perceived as a mocking tone, that he left his small home to live a monk’s life in the Pagoda, which is huge.

9 The test to be applied in determining the defendant’s objection is whether the meaning contended for is reasonably capable of being conveyed by the matter complained of. In Favell v Queensland Newspapers Pty Limited [2005] HCA 52, the High Court stated that the question is ultimately what a jury could properly make of it: at [17] per Gleeson CJ, McHugh, Gummow and Heydon JJ.

10 In my view, the charge that the plaintiff had the object of material gain is reasonably capable of being conveyed by the matter complained of.

11 A second objection to the imputation was that it was bad in form in that the words “who pretends to be a holy man for his own material gain” do not describe hypocrisy, and should therefore be struck from the imputation. Mr Glasson, who appeared for the second and third defendants, accepted that the charge of hypocrisy was capable of being conveyed. He submitted, however, that in order to describe hypocrisy, it is necessary to identify specifically what the person should do in contrast with what he or she does. I do not accept that submission. In my view, the notion of hypocrisy can be conveyed accurately by implication, without necessarily having each element spelled out in terms. In the present case, the identification of overt appearance for a purpose capable of being understood to be inconsistent with that appearance would, in my view, be understood to sustain the charge of hypocrisy. Imputation 10(i) should be permitted to stand.

12 Imputation 10(ii) is:

“That the plaintiff lords it over his fellow monks.”

The second and third defendants contend that the imputation is defective in form because the expression “lords it over” is imprecise and does not distil the true condition charged. Separately, the defendants submit that the imputation is incapable of arising.

13 The particular passage of the matter complained of said to give rise to that imputation is paragraph 10, which states:

“Nhu Hue was wearing a monk’s robe but he behaved like a mandarin in ancient times. He liked to be served by his attendant. Mr Liem wrote: “Ven Hanh Phap served him attentively, from the hot bottle to warm him up in cold winter.” But hot water bottle was not enough, Ven Hanh Phap had to do massage for Nhu Hue when he watched films. Mr Liem continued: “When Mr (sic) Nhu Hue watched films, Ven Hanh Phap had to stand with his back towards the TV … Venerable Hanh Phap was very devoted but Mr (sic) Nhu Hue treated him badly as an old saying goes “no more rice, no more relation”, “after passing the bridge, taking out the plank”.”

14 It was submitted on behalf of the defendants that the passage in question describes an episode of behaviour involving only one monk, and is incapable of supporting an imputation as to the plaintiff’s conduct in relation to “monks” generally.

15 Mr Dibb, who appeared for the plaintiff, submitted that the term “lords it over” is well understood, conveying the notion of exercising authority in a way that is peremptory and arrogant, or having authority but using it in a self-aggrandising way. Mr Glasson submitted in reply that, during the course of argument, Mr Dibb had identified a number of different meanings conveyed by the term, demonstrating its ambiguity.

16 I do not have any difficulty accepting that the passage set out above is capable of conveying a defamatory sense of the kind identified by Mr Dibb, such as the exercise of authority in a high-handed or self-aggrandising fashion.

17 As to the complaint that the article only deals with the plaintiff’s treatment of one monk, and is therefore not capable of conveying an imputation as to his treatment of “monks”, I disagree. The very next sentence following the passage set out above is “Mr (sic) Nhu Hue’s behaviour is only consistent with his nature…”. Many other parts of the article are capable of suggesting description of the plaintiff’s character, not confined to description of his conduct on a particular occasion. There is reference to “good and bad apples” and “the bad elements (whether who joined the organisation to attract reputation or gain interests…)” who “should be expelled so that the organisation will be able to serve the fellow compatriots”. The whole tenor of the piece is redolent with criticism of the plaintiff’s character, and the paragraphs set out above must be read in that context.

18 Further, I accept Mr Dibb’s submission that the term “lords it over” is well-understood. The notion of lording it over someone readily evokes the worst conduct of a lord, a term of clear meaning. I do not think that the variety of definitions identified by Mr Dibb demonstrates that the term “lords it over” is liable to be struck out on the grounds of ambiguity. An imputation should not be struck out on that ground unless it uses a term that is susceptible of such different meanings as to cause embarrassment in the conduct of the proceedings. Such embarrassment does not arise merely as a result of differences of nuance. Imputation 10(ii) should be permitted to stand.

19 Imputation 10(iii) is “that the plaintiff, by pretending to be a holy man, has lived on public donations for nearly 30 years”.

20 The second and third defendants object to that imputation as being incapable of arising. I do not think there is any force in that objection. In my view, that is the whole tenor of the article. Separately, the defendants complain that imputation (iii) fails to identify the defamatory sting complained of, unless it is hypocrisy, in which event the imputation does not differ from imputation 10 (i). I accept that there is a measure of similarity between the two meanings. On balance, however, I think there is a sufficient difference in their substance by reason of the specific charge in imputation 10(iii) that the plaintiff has lived on public donations for nearly thirty years. That amounts to a charge that his pretence has been successful, while the charge of imputation 10(i) goes to purpose. Imputation 10(iii) should be permitted to stand.

21 Imputation 10(iv) is “that the plaintiff appropriates to himself property of other people”. The second and third defendants objected that the term “appropriates” is ambiguous. Further, it is arguably not defamatory, since property can be appropriated with authority in some circumstances. In my view, there is force in those contentions. If the term “appropriates” is intended to capture the notion of theft or exploitation, the imputation should say so. Imputation 10(iv) should be struck out.

The third matter complained of

22 The third matter complained of (annexure F to the original statement of claim) is an article under the heading “A fox under the cloak of an old woman’s robe”. The principal subject of that article is the distribution of a public notice of a prayer ceremony to be held at the Phap Hoa Pagoda. The article questions whether the notice was intended to advertise a genuine prayer session, and urges readers to boycott any ceremonies organised by Phap Hoa Pagoda.

23 The first imputation pleaded in respect of that article is 12(i):

“That the plaintiff, who pretends to be a holy monk, is a hypocrite who violates the ethical precepts of Buddhism”.

24 Mr Glasson raised the same complaint in respect of that imputation as in respect of imputation 10(i), namely, that an imputation of hypocrisy, if the hypocrisy is identified within the imputation, must specifically identify the hypocritical overt conduct and the underlying truth. For the reasons already identified, I think a charge of hypocrisy can be appropriately identified with greater subtlety. In any event, in my view, imputation 12(i) does identify both aspects of the behaviour. It refers to the plaintiff’s pretence to be a holy monk and accuses him of in fact violating the ethical precepts of Buddhism. In my view, imputation 12(i) should be permitted to stand.

25 Separately, the second and third defendants submitted that imputation 12(i) does not differ from imputation 12(ii), which is “that the plaintiff, who pretends to be a holy monk, is in fact a merchant of the Buddha and the Darma, buying and bragging of fame and positions”.

26 I think there is force in the complaint that those two imputations do not differ in substance. In my view, imputation 12(ii) suffers from the further vice that the language of the imputation (drawn directly from the matter complained of), while lyrical and evocative, does not have a clear meaning. Imputation 12(ii) should be struck out.

The fourth matter complained of

27 The fourth matter complained of (annexure H to the original statement of claim) is an article under the heading “What should be done if the Pagoda is abused?”. That article returns to the theme of bad characters within the Pagoda misusing their positions as monks for financial gain.

28 The second and third defendants raised objections to imputations 14(i), 14(iii) and 14(v). Mr Dibb conceded that there were difficulties with those imputations, and sought to withdraw them. They should be struck out with leave to replead.

The fifth and sixth matters complained of

29 The fifth matter complained of (annexure J to the original statement of claim) is an open letter to the plaintiff published in the South Australian Weekly Times. The critical passage states:

“According to Mr Nham’s account previously in Vietnam, Mr Tich Nhu Hue was from the same hometown that was why Mr Nham could tell the story in details. When Mr Tich Nhu Hue was a monk in Hoi An, he had a sexual relationship with a young student, [named], and later on, with another girl, [named], a student at Bo De secondary school. Major Nguyen Duoc, the Ditrict (sic) Chief of Ly Tin, had to arrange to keep the peace…”

30 The sixth matter complained of (annexure L to the original statement of claim) is an article published two weeks later under the heading “Does Monk Thich Nhu Hue want to shut up the Reader’s Herald?”. The article reports that the plaintiff had alleged that the letter (the fifth matter complained of) was defamatory and expresses surprise at that allegation, asserting that the author of the letter had proposed suggestions to the plaintiff in order to glorify his reputation, not to defame him. The article concludes by reprinting the entire text of the original letter “in order to open up the public opinion”.

31 The plaintiff has pleaded identical imputations in respect of each of those two matters. The first objection raised by the second and third defendants relates to imputations 16(ii) and 18(ii), which are:

“That the plaintiff, a monk, had a sexual relationship with a young female high school student, [named].”

32 The defendants submitted that, in each case, the letter identifies the first female as a “young student” and the second female as a “secondary school student”. The defendants submitted that, since the word “young” is expressly used in relation to one girl and not the other, the matter complained of is not capable of conveying the meaning that the second girl was young. They submitted, further, that if it is said that the word “young” is merely derived from the expression “secondary school student” then those words amount to unnecessary verbiage which is superfluous: Mayfield-Smith v Mirror Newspapers (1982) 2 NSWLR 419 at 420.

33 With great respect to the authors of those contentions, I think that represents an unduly technical approach. In my view, read as a whole, the letter is capable of being understood to mean that the plaintiff had sexual relationships with two young girls. I doubt whether the ordinary reasonable reader would necessarily pause to reflect on the juxtaposition of the description of one as a young student and the other as simply “another girl”. The clear suggestion, in my view, is that both girls were young, explaining the need for Major Nguyen Duoc to arrange to keep the peace when it was reported that the plaintiff had sexual relationships with them. Those imputations should be permitted to stand.

34 The third imputation relied on in relation to the fifth and sixth matters complained of is “that the sexual misconduct of the plaintiff when he was a monk in Hoi An made him unfit to be the Abbott of Phap Hoa Pagoda”.

35 Mr Glasson submitted that the term “misconduct” is ambiguous. I do not accept that submission. In my view, it would be understood simply to mean inappropriate sexual conduct. I do not think the imputation is liable to be struck out on that account.

36 During the course of argument I raised the separate question whether imputations 16(i) and (ii) and 18(i) and (ii) identify any defamatory sting. The issue that concerned me in that respect is whether it is defamatory to say that a monk had a sexual relationship with a young girl. After further reflection, however, I have come to the view that that is a question for the jury. I note, however, that Mr Dibb indicated that he proposed to give some further consideration to those imputations. The plaintiff should have leave to replead them, if required.

37 The orders are:

(1) that imputations 10(iv), 12(ii) and 14(i), (iii) and (v) be struck out.

(2) that the plaintiff have leave to file a further amended statement of claim in accordance with these reasons.

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