Jensen v Nationwide News Pty Limited - [2017] WASC 63

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: JENSEN -v- NATIONWIDE NEWS PTY LIMITED [2017] WASC 63

CORAM: TOTTLE J

HEARD: ON THE PAPERS

DELIVERED : 15 MARCH 2017

FILE NO/S: CIV 1535 of 2016

BETWEEN: DENNIS GEOFFREY JENSEN
Plaintiff
AND
NATIONWIDE NEWS PTY LIMITED
First Defendant
ANDREW BURRELL
Second Defendant

Catchwords:

Practice and procedure - Strike out application - Defamation - Whether plea of publication discloses cause of action - Whether access to recordings constitutes publication - Whether imputations concerning journalist's professional duty capable of arising as false innuendo - Whether pleaded imputations sufficiently precise - Whether imputations concerning journalist's professional duty capable of arising as true innuendo

Legislation:

Nil

Result:

Application allowed in part; otherwise dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr M L Bennett
First Defendant              :     Mr J D MacLaurin
Second Defendant         :     Mr J D MacLaurin

Solicitors:

Plaintiff:     Bennett + Co
First Defendant              :     MacPherson & Kelley Lawyers
Second Defendant         :     MacPherson & Kelley Lawyers

Case(s) referred to in judgment(s):

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
Bowles v Truth (NZ) Ltd [1965] NZLR 768
Chapman v Radio 2CH Pty Ltd (Unreported, NSWSC, 16 December 1994)
Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575
Jameel v Wall Street Journal SPRL [2003] EWCA Civ 1694; [2004] EMLR 6
Maher v Nationwide News Pty Ltd [2013] WASC 254
Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Rayney v Pan MacMillan Australia Pty Ltd [2014] WASC 129
Sims v Jooste [No 2] [2016] WASCA 83
Wilson v Coxon [2014] WASC 268

TOTTLE J: The second defendant in this action, Mr Burrell, is the plaintiff by counterclaim and in that capacity sues for damages for defamation arising out of words spoken by the defendant by counterclaim, Dr Jensen (the plaintiff), in the course of separate interviews broadcast by ABC Radio and Radio 6PR on 4 April 2016. In the course of those interviews Dr Jensen made statements critical of Mr Burrell to the effect that Mr Burrell had not contacted Dr Jensen to check facts before writing an article about Dr Jensen's personal life published in The Australian newspaper on Friday, 1 April 2016. Dr Jensen complained this article was factually incorrect. Mr Burrell had written an earlier article published in The Australian newspaper on Thursday, 31 March 2016, and prior to the publication of that article he had spoken to Dr Jensen.
Dr Jensen has applied to strike out parts of, and to disallow proposed amendments to, various aspects of Mr Burrell's plea of the publication of the defamatory statements and the imputations Mr Burrell says arise.
The aspect of the publication plea challenged is that the statements were published to 'those who record or have access to recordings' of the programmes in the course of which the interviews were given. Dr Jensen complains that this plea fails to recognise that publication, in the context of the law of defamation, requires a plaintiff to establish as part of the cause of action that the defamatory material has been comprehended by a third party, and not merely that a third party had access to the defamatory material. Dr Jensen argues that there is no publication for the purposes of the law of defamation until those people (if any) who recorded the programmes or who have access to recordings of the programmes listen to the recordings and comprehend the statements made by him.
Two imputations are pleaded by Mr Burrell. First, that he acted contrary to his professional duty as a journalist by failing to contact or even try to contact Dr Jensen prior to writing the article about him. Second, that he acted unprofessionally by writing an article about Dr Jensen with reckless disregard to its truth or falsity, being motivated by serving the political objects of others in damaging Dr Jensen, rather than a legitimate journalistic purpose.
These imputations are pleaded as 'false innuendos' and in the alternative as 'true innuendos'.
Dr Jensen argues that:
(i)The imputation that Mr Burrell acted in breach of his professional duty by failing to contact or even try to contact Dr Jensen cannot arise as a false innuendo as there is nothing in Dr Jensen's statements that expressly or inferentially alleges that Mr Burrell acted contrary to any professional duty. As a separate but related complaint, Dr Jensen argues that although the statements made in the ABC interview are capable of meaning that Mr Burrell failed to contact Dr Jensen, the statements in the 6PR interview cannot sustain that meaning.
(ii)The imputation that Mr Burrell acted in a way that is contrary to his professional duty is too imprecise to stand as a defamatory imputation without further exposition of the scope and content of the professional duty.
(iii)The second imputation does not have the capacity to arise from the words spoken in either interview.
(iv)The imputation that Mr Burrell acted 'unprofessionally' and with 'reckless disregard' is too imprecise to stand as a defamatory imputation. Moreover, Dr Jensen argues there is an inconsistency within the imputation that Mr Burrell acted with reckless disregard and that he was motivated by serving the political objects of others in damaging the plaintiff.
(iv)Alternatively, the second imputation is impermissible because it contains a rolled up plea of two distinct imputations: first, that Mr Burrell acted with reckless disregard to the truth of the article; and, second, that Mr Burrell was motivated by serving the political objects of others in damaging the plaintiff rather than a legitimate journalistic approach.
Mr Burrell has proposed amendments to dispose of the criticisms advanced by Dr Jensen, and disputes that the counterclaim is defective as alleged. His overarching submission is that the points raised by Dr Jensen are matters for trial and are not the proper subject of an interlocutory application.
For the reasons that follow I uphold Dr Jensen's complaints about the publication plea but not his complaints about the imputations.

Procedural detail

There have been three versions of the counterclaim. The first was incorporated in a defence and counterclaim dated 28 September 2016. This was the subject of complaint by Dr Jensen and led to the second version that was incorporated in a proposed amended defence and counterclaim dated 31 October 2016. Conferral between the parties about Dr Jensen's pleading complaints resulted in a third version incorporated in a 'Further minute of proposed amended defence and counterclaim' dated 29 November 2016, attached to written submissions filed and served on Mr Burrell's behalf on 30 November 2016. The proposed amendments have been made in an attempt to resolve the interlocutory dispute. It is unnecessary to trace the evolution of the pleading in detail. For the purposes of this application I have focussed on the proposed further amended counterclaim in the minute of 29 November 2016 and for ease will refer to it simply as 'the counterclaim'.

The relevant paragraphs of the counterclaim

The interviews and their publication

At paragraphs 50 to 51 of the counterclaim, Mr Burrell pleads the ABC interview and publication as follows:
50.On or about 4 April 2016 the Defendant by Counterclaim spoke ~~the following words or words to the following effect~~ during and in the context of a live interview conducted by interviewer Mr Geoff Hutchison, upon and broadcast by the Australian Broadcasting Corporation (ABC) Radio Station 720, and thereby published to Mr Hutchison, ~~and the ABC~~ persons at the ABC, listeners of the ABC 720 Radio Station, and to those who record or have access to recordings of such ABC Radio programmes, the words or words to the effect of those set out in Annexure A hereto in the context of words spoken by Mr Hutchison, which were of and concerning the Plaintiff by Counterclaim (ABC Radio Statements) and in particular:
Mr Hutchison: To a rather colourful political career. Yesterday, liberal party members in the federal seat of Tangney voted overwhelmingly to dump the sitting member, Dr Dennis Jensen and replace him with a former state director, Ben Morton. Now, you'll remember we spoke to Dr Jensen last week after an article appeared in The Australian newspaper which revealed he was not just a politician but had been a novelist too and had used parliamentary letterhead to spruik that novel to publishers. The novel was called 'The Sky Warriors' and apparently it was about a crazed Indonesian dictator going to war with Australia and it did as you'll remember, feature in parts in rather risqué language, all this is a bit by the by. Doctor Jensen conceded he shouldn't have used the letterhead but he expressed concern when he spoke to me on that day that the publication of the article had been designed to undermine his preselection. Well, yesterday he was emphatically defeated and he drove away from that meeting without comment. Dr Jenson joins me this morning. Good morning to you.
Dr Jensen:Good morning Geoff.
Mr Hutchison ~~Interviewer~~: You said you were the victim of an absolute smear campaign. Is that correct?
Dr Jensen:Yes Geoff. That is correct and in fact, subsequent to our discussion on Thursday about the book, there was an even worse chapter, if you will, that came out on Friday in The Australian where the headline was 'new chapter as Jensen leaves family home' and he talks about, this is Andrew Burrell spoke about moving out of his blue ribbon electorate Tangney even as the Federal Liberal MP intensifies his bid to convince local preselectors they should allow him to extend his term. And it is emerged Dr Jensen recently left the family home in Leeming (cough), pardon me, in suburban Perth to live about 60km away to live with his new girlfriend. This is completely, factually incorrect and Burrell never attempted to contact me to ascertain the bona fides of this story and this is why I have Martin Bennett representing me and he will be presenting a Writ to the Supreme Court for Defamation.
Mr Hutchison ~~Interviewer~~: Okay. Would you like to clear up the situation regarding your living arrangements? Because it did seem to be that you are not so concerned necessarily about the first story with you as a novelist but you were certainly concerned about the reference to your living arrangements. What's the truth of the matter?
Dr Jensen:The truth of the matter is my ex-wife left me in July 2014. At that time she lived in the house in Leeming and I was living in Halls Head where I've continued to live since that. She then, my ex-wife moved to Melbourne in December of 2014 with my son and younger daughter and my son has been in school in Melbourne for well over a year. Um, I have continued to live in the Halls Head home. The Leeming house sold in February. The proceeds and so on are still an ongoing issue in the Family Court. Further to the issue of the so-called new girlfriend, I met Trudy, my partner in November 2014 and we have been together ever since then. Well known in parliament. Burrell could have done very easy checking to ascertain the bona fides of these, he could have phoned me about it. He never attempted to.
Mr Hutchison: Okay. You've said it's a smear campaign and I guess you're arguing that it's through the pages of The Australian but on behalf of who?
Dr Jenson:Uh, well obviously it's, uh, it had to do with preselection and it had to do with the fact that I was being supported by Christians and this was - you know, this stuff would be very distasteful, in particularly the second issue about leaving the family home, in not only Christians' minds but I would suggest most people.
Particulars of Publication
i.ABC Radio 720 is aired in Perth with ratings of approximately 10% of radio listeners in Perth.
ii.Further details of publication will be provided after discovery.
~~50.~~51. Alternatively, in respect recipients referred to below, the Defendant by Counterclaim made the ABC Radio Statements to ABC Radio 720:
(a)with the knowledge that the ABC Radio Statements would be broadcast by ABC Radio 720 to listeners of ABC Radio 720 and those who record or have access to recordings of ABC Radio 720 broadcasts; and/or
(b)the publication of the ABC Radio Statements by ABC Radio 720 to those recipients was the natural and probable consequence of the Defendant by Counterclaim's publications of the same to ABC Radio 720.
At paragraphs 54 to 55 of the counterclaim Mr Burrell pleads the 6PR interview and its publication as follows:
54.On or about 4 April 2016 the Defendant by Counterclaim spoke~~, the following words, or words to the following effect,~~ during and in the context of a live interview conducted by Mr Basil Zempilas and Mr Steve Mills, and broadcast by the Radio Station 6PR, and thereby published to Messrs Zempilas and Mills, ~~Radio 6PR,~~ persons at Radio 6PR, listeners of Radio 6PR and those who record or have access to recordings of such Radio 6PR programmes ~~broadcasts~~, the words, or words to the effect of those set out in Annexure B hereto, in the context of words spoken by Messrs Zempilas and Mills which were of and concerning the Plaintiff by Counterclaim, ~~having been made after identifying the Plaintiff by Counterclaim by name in the course of the interview~~ and in particular: (6PR Statements):
STEVE MILLS: It's been a tough road, hasn't it really? You must hate pre-selections.
DENNIS JENSEN: [Sighs] Yeah, I do, and this one was the dirtiest of the lot, quite frankly, and one of the things that really bothered me was the personal nature, particularly an article in The Australian on Friday by Andrew Burrell, which alleged that I had left my family home just … you know, effectively days ago …
STEVE MILLS: [Interrupts] Well I can read out what it says. It says it's emerged Dr Jensen recently left the family home in Leeming in suburban Perth to live about 60 kilometres away with hi[s] new girlfriend.
DENNIS JENSEN: Yeah, absolutely false. My ex wife left me in July 2014; she moved to Melbourne in December 2014, and I've been living in Halls Head since July 2014. The Leeming house sold a year ago and this new girlfriend is my partner, who I've now been with since meeting her in November 2014.
STEVE MILLS: So that is dirty. That's what you mean by dirty politics.
DENNIS JENSEN: Yes, absolutely.
STEVE MILLS: How do you know that - I mean, that was reported by a journalist who's not associated with the Liberal Party.
DENNIS JENSEN: Well here's the interesting thing. I mean it was part of a one-two shot, you know, the first shot was obviously the shot about my book, and deliberately sort of exaggerating the sex aspect, knowing that I had support from Christians, knowing that that would put them off. The question here is, with this article he didn't even bother - the one about Jensen leaves family home, he didn't even bother phoning me up to ascertain my side of the story at all. He had on Wednesday, for the Thursday story, he hadn't asked me questions about, you know, quite a few things. I tried to contact this guy on Thursday afternoon in relation to a photographer outside my office on Wednesday, and asked if it was them. He didn't take my call, and so he had ample opportunity to ask me about this and instead he's just put this stuff out there, so.
STEVE MILLS: Well can I just take you up - so you brought it up, let's talk about first up the book. I mean, what was the book all about? Was this before you entered politics, that you thought you could write a sultry kind of book? Because it is …
BASIL ZEMPILAS: [talks over] Romance novel.
STEVE MILLS: … some of the lines that I've got here I can't actually use on the radio.
DENNIS JENSEN: Well …
STEVE MILLS: I mean, you would acknowledge that.
DENNIS JENSEN: Well …
STEVE MILLS: Particularly the one in regards to the pants and underpants and …
DENNIS JENSEN: Yeah, but - but here's the interesting thing. The thing was part that … it had one scene, one. A hundred and fifty-four words out of 69,000 was published in its entirety in The Australian. That is the whole contents of - the rest of the book, 154 words out of 69,000. It's a techno thriller. Basically it's Tom Clancy type stuff, and people would read it and find, you know, a whole lot of detail about combat and all the rest of it.
~~(a)'The first shot was obviously the shot about my book and deliberately exaggerating the sex aspect, knowing I had the support of Christians, knowing that that would put them off';~~
(b)'The allegation made by the Australian that the split from my wife had been recent was false. With this article the journalist didn't even bother phoning me up to ascertain my side of the story at all';
~~(c)'Why the need to down to this level of character assassination if there wasn't concern that it was in fact close?'~~
~~A copy of the full transcript is attached and marked 'Annexure D'.~~
Particulars of Publication
i.Radio 6PR is aired on radio in Perth with ratings of approximately 8% of radio listeners in Perth;
ii.Other media organisations, or entities who specialise in monitoring media publications record items such as the interview described above, and in any event, such items are available on, inter alia, the internet.
ii iii. Further particulars of publication will be provided after discovery.
~~54.~~55. Alternatively, in respect to recipients referred to below, the Defendant by Counterclaim made the 6PR Statements to Radio 6PR:
(a)with the knowledge that the 6PR Statements would be broadcast by 6PR Radio to listeners of Radio 6PR and those who record or have access to recordings of Radio 6PR; and/or
(b)the publication of the 6PR Statements by Radio 6PR to those recipients was the natural and probable consequence of the Defendant by Counterclaim's publications of the same to Radio 6PR.

The imputations

Mr Burrell pleads the imputations as follows:
~~51.~~52. In their natural and ordinary meaning, the ABC Radio Statements meant and were understood to mean that the Plaintiff by Counterclaim:
(a)acted contrary to his professional duty as a journalist by failing to contact or even try to contact the Defendant by Counterclaim prior to writing an article about him;
(b)acted unprofessionally by writing an article about the Defendant by Counterclaim with~~out~~ reckless disregard to its truth or falsity, being ~~wholly~~ motivated by serving the political objects of others in damaging the plaintiff ~~a malicious~~, rather than a legitimate journalistic purpose.
52A.Further and in the alternative by reason of true innuendo, the ABC Radio Statements mean and were understood to mean, to those recipients possessed of certain extrinsic facts or knowledge, the meanings set out in paragraph 52.
Particulars
(a)the ABC Radio conveyed such meanings to those persons who knew that journalists are subject to professional standards that involve acting, and/or it is a fundamental aspect of a performing their profession that they act, in a way that strives for accuracy, fairness and independence and that an aspect of those requirements is:
i.a duty to seek out both sides of a story and seek a response from someone who is the subject of a publication about them; and
iii. to act with impartiality and not in a conflict of interest for a particular person's interests.
Mr Burrell pleads the imputations arising from the 6PR interview in identical terms.

Legal principles

Applying to disallow pleading amendments

In Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281, in the context of an application for the substitution of new objections to a pleading, Martin CJ stated that modern case management leaves:
very little opportunity for surprise or ambush at trial and … that pleadings today can be approached in that context and therefore in a rather more robust manner, than was historically the case; confident in the knowledge that other systems of pre-trial case management will exist and be implemented to aid in defining the issues and apprising the parties to the proceedings of the case that has to be met [6].

I consider Dr Jensen’s submissions that the proposed amendments should be disallowed with that approach in mind.
The principles applicable to determining a strike out application are well established. In Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270, Steytler J, as his Honour then was, set out the principles applicable to a strike out application at [28] - [29] (with which Malcolm CJ and Murray J agreed). In essence, unless a pleading is shown to be unarguable, a party is entitled to have their case heard, to have the facts found, and then to argue the questions of law as they arise before the trial judge upon the facts as found. A pleading should be struck out only in cases in which, however the facts be found, there is no basis for the legal conclusion contended for by the party. Further, a court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that as the law develops it will be found that a cause of action will lie.

Striking out imputations in defamatory actions

In Mickelberg, Steytler J, citing Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, 675, stated at [30] that '[i]mputations in defamation actions will only be struck out upon the ground that the words complained of are incapable of supporting them if the contention is so obviously unfounded that it cannot possibly succeed or is manifestly groundless'.
In Rayney v Pan MacMillan Australia Pty Ltd [2014] WASC 129, a case dealing with false innuendo, Edelman J recorded at [14] that it was well established that an imputation will be struck out only if it is plainly capable of being conveyed by the words complained of, or if it is so clearly untenable that it cannot possibly succeed. At [28] his Honour stated:
the ultimate question is whether the pleaded meaning is incapable of being conveyed from the matter about which complaint is made. And that question is determined by reference to the hypothesised ordinary reasonable reader. In answering that question, it is well established the ordinary reader of a publication 'does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction'. And,
'[h]ypothetical reasonable readers should not be treated as either naïve or unduly suspicious [or avid for scandal]. They should be treated as being capable of reading between the lines and engaging in some loose thinking, but not as being avid for scandal. The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse the documents'. (footnotes omitted)
With respect to the technical pleading requirements for imputations, in Maher v Nationwide News Pty Ltd [2013] WASC 254, Kenneth Martin J noted that:
Meanings contended for by a plaintiff must be exact, be it a popular (false) innuendo arising exclusively from the words of the publication, or a legal (true) innuendo, arising out of the words as augmented by further knowledge held by the particular reader. The imputation must capture the true essence of the 'sting' of the publication concerning alleged wounds to the plaintiff's character complained of. An imputation must be a precise distillation of the essential grievance …
Failure to satisfy the precision criterion will render an imputation vulnerable to being struck down, on the basis that it is legally embarrassing. As imputations complained of might ultimately be assessed by a jury, precision is an indispensable requirement.
Formulated imputations also lay down the platform upon which pleaded defences (particularly a defence of justification raising the truth or substantial truth of the imputation) may seek to be advanced by a defendant. Absent requisite precision in formulating a plaintiff's imputations, there are likely to be generated diverting flowthrough consequences in subsequent pleadings which may impinge on the efficient running of a trial [27] - [29]. (citations omitted)

Plea of publication

As noted, Dr Jensen objects to Mr Burrell's plea that his statements were published to 'those who record or have access to recordings of such ABC Radio [and 6PR] programmes …'.
The question is whether this plea sufficiently discloses a cause of action in defamation, which, relevantly, requires Mr Burrell to plead that Dr Jensen's statements were published in the legal sense.
Publication, in the legal sense, is a bilateral act that requires, in the context of radio, for an interview to be broadcast or recorded, and for a person to listen to or otherwise comprehend that interview: Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 [26] (Gleeson CJ, McHugh, Gummow & Hayne JJ); Sims v Jooste [No 2] [2016] WASCA 83 [9] (Martin CJ).
In Sims, Martin CJ considered publication of material on the internet, and noted at [17] - [20] that a party must plead and prove facts that establish material posted on the internet has been downloaded and viewed by somebody before an action in defamation will be complete.
Accordingly, in this case it is necessary for Mr Burrell's plea to encompass not only that there are recordings of the ABC Radio or 6PR interviews, but that somebody has listened to or otherwise comprehended those recordings. I would strike out the words 'and to those who record or have access to recordings' in paragraph 50, 51(a), 54 and 55(a) of the counterclaim but grant the defendant leave to replead.

The first imputation

To recap, the first imputation pleaded to arise from both interviews is that Mr Burrell acted contrary to his professional duty as a journalist by failing to contact or try to contact Dr Jensen prior to writing an article about him.
First, I will address the question of whether the term 'professional duty' is sufficiently precise.
Without more, referring to the 'professional duty of a journalist' does not define the scope and content of that duty with precision. But Mr Burrell's plea is not limited to that bare phrase. He has gone on to set out the relevant incident of the professional duty - that a journalist is required to contact a person before writing an article about him or her.
In my view, the plea is sufficiently precise to capture the sting of the publication. It defines the imputation as a failure by Mr Burrell to take a particular step in the course of his profession. I consider a jury would be capable of assessing whether the imputation arises on that basis, without needing to consider the full scope and content of Mr Burrell's professional duty. Likewise a defendant would be able to plead any defence to an imputation drawn in those terms.
The second question is whether the imputation is capable of arising on the basis of the interviews alone without extrinsic knowledge, that is, as a 'false innuendo'.
Dr Jensen relied on Wilson v Coxon [2014] WASC 268, in which Kenneth Martin J considered at [23] - [24] that an imputation that a company chairman breached his duty by failing to act in accordance with the Corporations Act 2001 (Cth) could not arise without the reader holding knowledge of a particular section of that Act. By analogy, Dr Jensen contended that the first imputation could not arise unless an ordinary reasonable listener held extrinsic knowledge of a journalist's professional duty.
Mr Burrell responds that Wilson v Coxon may be distinguished because of the very specific nature of the extrinsic knowledge in issue in that case. He points to a New Zealand case, Bowles v Truth (NZ) Ltd [1965] NZLR 768, 771 - 773, in which ordinary reasonable readers were taken to have the knowledge that counsel are duty bound not to ask questions for which there is no reasonable basis, the implication being that knowledge of a journalist's professional duty is less obscure than of the duty of counsel.
On the other hand, in Chapman v Radio 2CH Pty Ltd (Unreported, NSWSC, 16 December 1994), Levine J found that 'it is clearly the case that' an imputation 'the plaintiff allowed personal interest to influence her professional duties, in breach of the journalists' code of ethics' was 'capable of arising only as [a] true innuendo'.
In my view, it is arguable that the ordinary reasonable listener would know that a journalist who writes an article critical of a subject's personal life would be expected to contact that subject and allow them an opportunity to comment. For that reason, I consider that the first imputation has the capacity to arise from the words used in the interviews without extrinsic knowledge.
I turn now to whether the 'failure to contact or try to contact' imputation can arise from the 6PR interview. Dr Jensen accepts that the ABC Radio interview is capable of supporting the imputation that Mr Burrell failed to contact or failed to try to contact him before writing an article about him. But Dr Jensen submits that his statements in the 6PR interview mean that the first imputation cannot arise from that interview.
In context the relevant words spoken by Dr Jensen are:
STEVE MILLS: It's been a tough road, hasn't it really? You must hate pre-selections.
DENNIS JENSEN: [Sighs] Yeah, I do, and this one was the dirtiest of the lot, quite frankly, and one of the things that really bothered me was the personal nature, particularly an article in The Australian on Friday by Andrew Burrell, which alleged that I had left my family home just … you know, effectively days ago …
…
… The question here is, with this article he didn't even bother - the one about Jensen leaves family home, he didn't even bother phoning me up to ascertain my side of the story at all. He had on Wednesday, for the Thursday story, he hadn't asked me questions about, you know, quite a few things. I tried to contact this guy on Thursday afternoon in relation to a photographer outside my office on Wednesday, and asked if it was them. He didn't take my call, and so he had ample opportunity to ask me about this and instead he's just put this stuff out there, so.
In Rayney, Edelman J stated at [13] that
when a strike out application is brought in the defamation context, the exercise of ascertaining the range of legitimate meanings that are possible is an exercise in generosity, not in parsimony. (citations omitted)
In Jameel v Wall Street Journal SPRL [2003] EWCA Civ 1694; [2004] EMLR 6 [14], Simon Brown LJ, as his Honour then was, said:
every time a meaning is shut out (including any holding that the words complained of either are, or are not, capable of bearing a defamatory meaning) it must be remembered that the judge is taking it upon himself to rule in effect that any jury would be perverse to take a different view on the question. It is a high threshold of exclusion ...
The first imputation alleges a failure by Mr Burrell to contact Dr Jensen before writing an article. The use of the indefinite article in the plea, rather than in anything said by the plaintiff, is important. Dr Jensen's statement is clearly capable of meaning that Mr Burrell failed to contact him about the subject matter of the article published on 1 April 2016. In fact, Dr Jensen makes much of Mr Burrell having the opportunity to contact him about the second article but failing to do so.
For the reasons set out above the first imputation is capable of arising, and it should not be struck out.

The second imputation

The second imputation said to arise from both the ABC Radio and 6PR interviews is that Mr Burrell, 'acted unprofessionally by writing an article about [Dr Jensen] with reckless disregard to its truth or falsity, being motivated by serving the political objects of others in damaging [Dr Jensen] rather than a legitimate journalistic purpose'.
The first question is whether the terms 'acted unprofessionally' and 'reckless disregard' are sufficiently precise. For reasons similar to those I have given above as to why the term 'professional duty' is sufficiently precise, I consider the term 'acted unprofessionally' is also sufficiently precise. In context, the 'unprofessionalism' is pleaded as Mr Burrell's writing an article with reckless disregard as to its truth or falsity with a perverse motivation for so doing. That provides a sufficiently precise definition for the term 'acted unprofessionally'.
In my view, the term 'reckless disregard' is also sufficiently precise when the context of the imputation is considered. In context, it is clear that the term refers to an imputation that Mr Burrell wrote the article without caring sufficiently to check the veracity of, or without having an honest belief in the allegations included in the article. So understood, the imputation is sufficiently precise for a jury to determine whether the imputation arises.
The second question is whether the pleaded imputation is a single imputation, or an instance of two or more imputations being impermissibly rolled up into one.
In my view, Dr Jensen's submission to the effect that the second imputation involves inconsistent allegations should not be accepted. It is possible than an author of a newspaper article could be motivated by an external factor to adopt an attitude of apathy concerning the truth of allegations made in the article. By way of example, such factors might be an impending deadline, animosity towards the subject of the article or the instructions of a superior to go to print without making enquiries.
Accordingly, it is possible for Mr Burrell to have been motivated by serving the political objects of others in damaging Dr Jensen, and, because of that motivation, to include allegations in an article which are damaging to Dr Jensen without caring whether the allegations were true or without having an honest belief in their truth.
For that reason, I do not consider that the second imputation is two imputations impermissibly rolled into one.
The third question is whether the second imputation is capable of arising from the words spoken in the interviews.
The following exchange in the ABC interview is relevant:
Mr Hutchison ~~Interviewer~~: You said you were the victim of an absolute smear campaign. Is that correct?
Dr Jensen:Yes, Geoff. That is correct and in fact, subsequent to our discussion on Thursday about the book, there was an even worse chapter, if you will, that came out on Friday in The Australian where the headline was 'new chapter as Jensen leaves family home' and he talks about, this is Andrew Burrell spoke about moving out of his blue ribbon electorate Tangney even as the Federal Liberal MP intensifies his bid to convince local preselectors they should allow him to extend his term. And it is emerged Dr Jensen recently left the family home in Leeming (cough), pardon me, in suburban Perth to live with his new girlfriend. This is completely, factually incorrect and Burrell never attempted to contact me to ascertain the bona fides of this story and this is why I have Martin Bennett representing me and he will be presenting a Writ to the Supreme Court for Defamation.
…
Mr Hutchison: Okay. You've said it's a smear campaign and I guess you're arguing that it's through the pages of The Australian but on behalf of who?
Dr Jenson:Uh, well obviously it's, uh, it had to do with preselection and it had to do with the fact that I was being supported by Christians and this was - you know, this stuff would be very distasteful, in particularly the second issue about leaving the family home, in not only Christians' minds but I would suggest most people.
The following exchange in the 6PR interview is relevant:
STEVE MILLS: So that is dirty. That's what you mean by dirty politics.
DENNIS JENSEN: Yes, absolutely.
STEVE MILLS: How do you know that - I mean, that was reported by a journalist who's not associated with the Liberal Party.
DENNIS JENSEN: Well here's the interesting thing. I mean it was part of a one-two shot, you know, the first shot was obviously the shot about my book, and deliberately sort of exaggerating the sex aspect, knowing that I had support from Christians, knowing that that would put them off. The question here is, with this article he didn't even bother - the one about Jensen leaves family home, he didn't even bother phoning me up to ascertain my side of the story at all. He had on Wednesday, for the Thursday story, he hadn't asked me questions about, you know, quite a few things. I tried to contact this guy on Thursday afternoon in relation to a photographer outside my office on Wednesday, and asked if it was them. He didn't take my call, and so he had ample opportunity to ask me about this and instead he's just put this stuff out there, so.
In my view, the second imputation is capable of arising from both interviews.
In the ABC Radio interview, the characterisation by Dr Jensen of Mr Burrell's articles as being part of a smear campaign, the allegation that Mr Burrell never attempted to contact him and Dr Jensen's apparent attempt to connect the articles to the purpose of reducing his support not only among Christians but 'most people', read together are capable of conveying the second imputation.
In the 6PR interview, the characterisation by Dr Jensen of Mr Burrell's articles as constituting dirty politics, the description of the articles as a deliberate attempt to reduce support from Christians and the allegation that Mr Burrell did not bother contacting Dr Jensen taken together are capable of conveying the second imputation.
In neither case is the pleaded imputation so obviously unfounded that it could not possibly succeed nor is it manifestly groundless.

The true innuendos

The true innuendos are pleaded in the same terms as the false innuendos, but with the addition of certain extrinsic knowledge about the professional duties of journalists. It follows from the fact that I have held that the pleading of the false innuendos is not defective, that the pleading of the true innuendos is likewise not defective.
I will hear the parties as to the terms of the orders and costs.