Jneid v West Australian Newspapers Limited
[2015] WASC 68
•26 FEBRUARY 2015
JNEID -v- WEST AUSTRALIAN NEWSPAPERS LIMITED [2015] WASC 68
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 68 | |
| Case No: | CIV:1927/2014 | 3 DECEMBER 2014 | |
| Coram: | KENNETH MARTIN J | 26/02/15 | |
| 50 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| A | |||
| PDF Version |
| Parties: | RATEB JNEID WEST AUSTRALIAN NEWSPAPERS LIMITED |
Catchwords: | Defamation Pleadings Application to strike out statement of claim Publication Photograph Whether open to plead front page of newspaper displayed under glass as discrete publication complained of alternatively to that page and subsequent part of newspaper Imputation as to guilt concerning criminal misconduct Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11, level one Whether arguably arising |
Legislation: | Nil |
Case References: | Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; (2006) 66 NSWLR 605 Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 Buckingham v Murray (1825) 2 Car & P 46; 172 ER 22 Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 Chalmers v Payne (1835) 2 Cr M & R 156; 150 ER 67 Charleston v News Group Newspapers Ltd [1995] 2 AC 65 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 Day v William Hill (Park Lane) Ltd [1949] 1 KB 632 Dee v Telegraph Media Group Ltd [2010] EWHC 924 (QB); [2010] EMLR 20 Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Farquhar v Bottom [1980] 2 NSWLR 380 Favell v Queensland Newspapers Pty Ltd [2003] QSC 368 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Grand Theatre & Opera House (Glasgow) Ltd v George Outram & Co Ltd [1909] SC 1018; [1909] 2 SLT 75 Huynh v Tang (2003) 2 DCLR (NSW) 321 Jameel v Times Newspapers Ltd [2004] EWCA Civ 983; [2004] EMLR 31 John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 Jones v Skelton [1964] NSWR 485; [1963] 1 WLR 1362 Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 Leighton v Garnham [2012] WASC 314 Leon v Edinburgh Evening News Ltd [1909] SC 1014; [1909] 2 SLT 65 Lewis v Daily Telegraph Ltd [1964] AC 234 Loo v Regional Publishers Pty Ltd [2003] NSWSC 834 Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 Maher v Nationwide News Pty Ltd [2013] WASC 254 Mark v Associated Newspapers Ltd [2002] EWCA Civ 772; [2002] EMLR 38 McFarlane v Nationwide News Pty Ltd [2014] NSWSC 1574 Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270 Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632 Nationwide News Pty Ltd v Abboud (Unreported, WASC, Library No 960710A, 12 September 1996) Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 Niven v Grant (1903) 29 VLR 102 Oracle International Pty Ltd v West Australian Newspapers Ltd (Unreported, WASC, Library No 970696, 11 December 1997) Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 R v Slaney (1832) 5 Car & P 212; 172 ER 944 Rayney v Pan Macmillan Australia Pty Ltd [2014] WASC 129 Robinson v Australian Broadcasting Corporation [2004] QCA 319 Robinson v Brighton [2007] NSWSC 1125 Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250 Shea v News Ltd [2015] WASC 1 Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1 The Age Corporation Ltd v Beran [2005] NSWCA 289 The Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210 The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 Waites v Macquarie Radio Network Ltd [2006] NSWSC 507 Warne v The Herald & Weekly Times Ltd [2000] VSC 210 West v Mirror Newspapers Ltd (1973) A Def R 50-001 World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS LIMITED
Defendant
Catchwords:
Defamation - Pleadings - Application to strike out statement of claim - Publication - Photograph - Whether open to plead front page of newspaper displayed under glass as discrete publication complained of alternatively to that page and subsequent part of newspaper - Imputation as to guilt concerning criminal misconduct - Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11, level one - Whether arguably arising
Legislation:
Nil
Result:
Application dismissed
Category: A
Representation:
Counsel:
Plaintiff : Mr S M Davies SC
Defendant : Mr A V McCarthy
Solicitors:
Plaintiff : Lemonis & Tantiprasut Lawyers
Defendant : Lavan Legal
Case(s) referred to in judgment(s):
Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; (2006) 66 NSWLR 605
Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107
Buckingham v Murray (1825) 2 Car & P 46; 172 ER 22
Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741
Chalmers v Payne (1835) 2 Cr M & R 156; 150 ER 67
Charleston v News Group Newspapers Ltd [1995] 2 AC 65
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11
Day v William Hill (Park Lane) Ltd [1949] 1 KB 632
Dee v Telegraph Media Group Ltd [2010] EWHC 924 (QB); [2010] EMLR 20
Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Farquhar v Bottom [1980] 2 NSWLR 380
Favell v Queensland Newspapers Pty Ltd [2003] QSC 368
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Grand Theatre & Opera House (Glasgow) Ltd v George Outram & Co Ltd [1909] SC 1018; [1909] 2 SLT 75
Huynh v Tang (2003) 2 DCLR (NSW) 321
Jameel v Times Newspapers Ltd [2004] EWCA Civ 983; [2004] EMLR 31
John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706
Jones v Skelton [1964] NSWR 485; [1963] 1 WLR 1362
Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263
Leighton v Garnham [2012] WASC 314
Leon v Edinburgh Evening News Ltd [1909] SC 1014; [1909] 2 SLT 65
Lewis v Daily Telegraph Ltd [1964] AC 234
Loo v Regional Publishers Pty Ltd [2003] NSWSC 834
Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147
Maher v Nationwide News Pty Ltd [2013] WASC 254
Mark v Associated Newspapers Ltd [2002] EWCA Civ 772; [2002] EMLR 38
McFarlane v Nationwide News Pty Ltd [2014] NSWSC 1574
Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270
Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293
Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632
Nationwide News Pty Ltd v Abboud (Unreported, WASC, Library No 960710A, 12 September 1996)
Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68
Niven v Grant (1903) 29 VLR 102
Oracle International Pty Ltd v West Australian Newspapers Ltd (Unreported, WASC, Library No 970696, 11 December 1997)
Phelps v Nationwide News Pty Ltd [2001] NSWSC 130
Polly Peck (Holdings) Plc v Trelford [1986] QB 1000
R v Slaney (1832) 5 Car & P 212; 172 ER 944
Rayney v Pan Macmillan Australia Pty Ltd [2014] WASC 129
Robinson v Australian Broadcasting Corporation [2004] QCA 319
Robinson v Brighton [2007] NSWSC 1125
Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16
Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250
Shea v News Ltd [2015] WASC 1
Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1
The Age Corporation Ltd v Beran [2005] NSWCA 289
The Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210
The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1
Waites v Macquarie Radio Network Ltd [2006] NSWSC 507
Warne v The Herald & Weekly Times Ltd [2000] VSC 210
West v Mirror Newspapers Ltd (1973) A Def R 50-001
World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712
World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189
1 KENNETH MARTIN J: By a chamber summons filed 18 September 2014, the defendant, West Australian Newspapers Ltd (The Newspaper) applies to strike out paragraphs of the amended statement of claim (ASOC) filed by the plaintiff, Dr Rateb Jneid, on 15 September 2014. For the reasons given below, I dismiss the application.
The publication
2 Dr Jneid is, and was at the time of the events the subject of this action, President of the Islamic Council of WA. His defamation action was commenced by writ filed 2 July 2014, complaining of the publication of:
(a) the article (the Article) which, as defined, is everything appearing over pages one and ten of the 29 May 2014 edition of The West Australian newspaper; and
(b) the first page of the same edition of The West Australian, displayed as on its own, in a glass display box.
3 By orders made 15 July 2014, the action was admitted to my CMC List for intensive case management.
4 As enlarged upon in par 3 of the ASOC, the Article is said to comprise:
(a) on Page One, large photographs of Dr Jneid and his brother, Ziad Jneid, adjacent to their respective printed names as backdrop to a headline 'GUNS, DRUGS AND MONEY - Islamic boss and brothers implicated in organised crime probe'; and
(b) on Page Ten, the headline 'CRIME SYNDICATE RAIDS - Islamic chief firearms charge'. This was followed by words which need to be analysed in a lot more detail (alluded to by the plaintiff at par 6 in his submissions filed 10 November 2014).
5 [I have attached photocopies of pages one and ten from The West Australian of 29 May 2014, as Schedules A and B respectively, at the end of these reasons.]
6 The one defamatory imputation complained of by Dr Jneid as arising from the Article is formulated at par 4 of the ASOC as a popular (false) innuendo:
In its natural and ordinary meaning, the Article meant and was understood to mean that the Plaintiff is a member of an organised crime syndicate that engaged in trafficking large quantities of methylamphetamine.
7 Dr Jneid pleads what is commonly termed a Chase level one imputation, which is the most serious of the descending levels of reputational harm as categorised by the Court of Appeal of England and Wales in Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11. As explained by Mullis A and Parkes R, Gatley On Libel And Slander (12th ed, 2013) at [11.13], the three levels of seriousness range between:
(a) the plaintiff is guilty;
(b) there are reasonable grounds to suspect the plaintiff is guilty; and
(c) there are serious grounds to investigate whether the plaintiff is guilty.
8 That tripartite taxonomy may be traced back further, to observations of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234. His Lordship had said, 'there could have been three distinct categories of justification - proof of the fact of an inquiry, proof of reasonable grounds for it and proof of guilt' (282).
9 By par 5 of his ASOC, Dr Jneid discretely complains further about a stand-alone publication of just the front page of this edition of the newspaper, or the 'Poster', as he defines it, in his pleading.
10 Although no defence has been filed, it looks to be a matter of some dispute whether the deployed term 'Poster' is the appropriate description. On Dr Jneid's case, the front page alone of the newspaper was published 'in newspaper stands with a glass cover, through which the Poster was visible to all persons walking past the stands'. The Newspaper would seem to challenge that publication proposition and in written submissions refers simply to the 'Front Page'. As I ultimately explain, the present interlocutory strike out application is not the appropriate forum to resolve disputed questions of fact.
11 I do not in these reasons adopt the 'Poster' term used by Dr Jneid in his ASOC. It carries, on my provisional view, a potential to be distracting. Instead, I will use the terminology Page One Isolated in the reasons, in referring to Page One of the 29 May 2014 edition of The West Australian, displayed under glass, and assessed by itself as the argued stand-alone publication by Dr Jneid.
12 Moving on, it is next pleaded at ASOC par 6 that:
In its natural and ordinary meaning, [Page One Isolated] meant and was understood to mean that the Plaintiff is a member of an organised crime syndicate that engaged in trafficking drugs.
13 The level of that plea is also seen to present as a Chase level one imputation, albeit this time, less specifically, as to 'trafficking drugs'.
14 The distinct imputations as between the two argued distinct publications reflect the fact Page One Isolated does not mention methylamphetamine specifically.
15 Paragraphs 7 and 8 of the ASOC then display the boilerplate plea common in defamation actions that, by reason of the publication of the Article (par 7) and Page One Isolated (par 8), Dr Jneid has been injured in his character, credit and reputation, brought into hatred, ridicule and contempt, and has suffered and will continue to suffer damage.
16 Before dealing with the Newspaper's application to strike out parts of the ASOC, I need to briefly canvass some relevant principles of law.
The law
17 On a pleading strike out application asserting the absence of a reasonably arguable cause of action, the threshold for success by an applicant is high. Only where the pleading under attack is shown to be essentially unarguable, may the application succeed: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. In determining a strike out application, the Court does not enter into resolving disputed issues of fact. Facts as alleged in the statement of claim are taken as proved: see Niven v Grant (1903) 29 VLR 102, 106, cited in Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270 [29] (Steytler J, as his Honour then was, with whom Malcolm CJ and Murray J agreed).
18 In Mickelberg, Steytler J went on to say:
a plaintiff is entitled as of right to have her case heard, to have the facts found and then to argue the question of law as it arises before the trial Judge upon the facts as found. The pleading should only be struck out where it can be seen from the outset that, however the facts might be found, there is no basis for the legal conclusion contended for by the plaintiff [29]. (case citations omitted)
19 The exposition concerning the hypothetical ordinary reasonable reader undertaken by Steytler J in Oracle International Pty Ltd v West Australian Newspapers Ltd (Unreported, WASC, Library No 970696, 11 December 1997), referring at 9 - 10 to Jones v Skelton [1964] NSWR 485; [1963] 1 WLR 1362, and therein to remarks by Lord Selbourne LC in Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741, is also helpful. In Jones, the Privy Council had said:
It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital and Counties Bank v George Henty & Sons Lord Selborne LC said:
The test according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men to whom the publication was made, would be likely to understand it in a libellous sense.
The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words (see Lewis v Daily Telegraph Ltd). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader, guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction, would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense (1370 - 1371). (case citations omitted)
20 After reproducing that passage in Oracle, Steytler J continued to observe:
Those who read a newspaper article are assumed to be reasonable people of ordinary intelligence and education who are also fair minded and entertain a sense of justice. It is also assumed that they will read the article as a whole and in the context of its publication. ... . The reader does not live in an ivory tower and is not inhibited by strict rules of construction. Nor is that person unusually suspicious, unusually naive or avid for scandal (10). (case citations omitted)
21 A plaintiff's pleaded defamatory imputations raise issues which could ultimately have to be resolved before a civil jury. Precision is therefore essential.
22 A plaintiff's defamatory imputation must distil the 'sting' of the publication: see Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1, 17 - 18 (Stephen J); which I discussed in Maher v Nationwide News Pty Ltd [2013] WASC 254 [27]. I observed at [30] that a pleading can be rendered impermissibly imprecise and hence embarrassing in at least three ways:
(a) an imputation not being reduced to its absolute essence out of the words complained of;
(b) an imputation being cluttered by unnecessary words or concepts; and
(c) a mixing or merging of more than one essential grievance, so as to create overall confusion or uncertainty as to the intended meaning.
23 I now turn to mention some case authorities dealing more specifically with defamatory imputations at the level of suggesting guilt, or lesser meanings that may arise surrounding the reports of criminal trials, the laying of criminal charges or investigations. A reliable starting point in this territory is found in the observations of Lord Devlin in Lewis, recognising that a defamatory meaning as to misconduct might present at the level of guilt, but on other occasions as something less serious. His Lordship said:
It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man; a rule cannot be made about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded (285).
24 The context, of course, was a case in which it had been reported that Mr Lewis and his related corporation had been under investigation by the City of London Fraud Office.
25 By contrast, I am dealing here with a scenario of a front page newspaper report relaying that Dr Jneid has been 'implicated', followed at Page Ten by further information concerning police raids, and as to the laying of a charge against Dr Jneid.
26 It is established as a part of the defamation law of Australia that an ordinary reasonable reader would no more infer guilt from a mere report of a charge being laid, than they would from a report of an investigation taking place: see Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16, cited by Mason J (as his Honour then was) in Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293, at 300.
27 Mason J observed in Harrison:
As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.
In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition (300 - 301).
28 All four members of the High Court who delivered reasons in Harrison (Sir Keith Aickin, the fifth member, passing away after the appeal decision had been reserved) agreed that the mere newspaper report concerning the respondent being arrested, and as to a laying of charges being imminent, was not sufficient to support a defamatory imputation pitched at the level of the plaintiff's guilt of a serious assault (on NSW MP Peter Baldwin).
29 On the other hand, the High Court in Harrison divided 2:2 on the obiter issue of whether the newspaper report could sustain the defamatory imputation of the respondent plaintiff being suspected by the police, on reasonable grounds, of committing that assault. Mason and Wilson JJ considered it could. But Gibbs CJ and Brennan J preferred not to express a view on what was then only an obiter issue.
30 The issue of the availability conceptually of a lesser defamatory imputation of reasonable grounds to suspect a person of guilt by participating in criminal conduct emerged again in the High Court, in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186. In that appeal, plurality justices Gleeson CJ, McHugh, Gummow and Heydon JJ invoked the smoke and fire analogy first used by Lord Devlin in Lewis. They noted the passages discussed above from Lewis and Harrison, before observing:
A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise [12]. (footnotes omitted)
31 It had been held at first instance in Favell that the impugned article could not sustain the Chase level one imputation that the plaintiffs were guilty of arson, or even a Chase level two imputation, that there were reasonable grounds to suspect the plaintiffs were guilty of arson: Favell v Queensland Newspapers Pty Ltd [2003] QSC 368 [8] – [10].
32 In the intermediate appeal by the plaintiffs to the Queensland Court of Appeal, Jerrard JA (with whom McPherson JA and Philippides J agreed) concluded the article was at least 'capable of conveying to an ordinary reasonable reader the imputation that there are reasonable grounds for suspecting that the Favells may have been responsible for causing the fire to happen, because of their apparent motive and the circumstances in which the fire occurred' [28]. In other words, the Queensland Court of Appeal would have allowed a plea close to a Chase level two imputation.
33 The plaintiffs obtained special leave and appealed again - successfully, to the High Court. The plurality reasons concluded, in effect, that both Chase level one and two imputations were arguably open to be raised from the matter complained of. The full text of the matter complained of in Favell is found set out at [1] in the reasons of Gleeson CJ, McHugh, Gummow and Heydon JJ.
34 The plurality in Favell noted that one of the 'most obvious features of the article' was a link drawn in both the headline and the body of the article between a controversial redevelopment plan, and a removal of one of the obstacles to that plan by destruction of the existing house [2]. Contrary to the findings of the primary judge, the article did not 'simply report the fire without comment'. Rather, 'the main thrust of the article is to link the fire with the contentious development proposal'. In such circumstances, the ordinary reasonable reader might well ask why the proposal was given such prominence in the context of a report of a fire, if the two were 'merely coincidental, and not causally related' [8]. Beyond that, the plurality also noted that the article said that 'the police treat all fires as suspicious' [13] and observed:
Once it is accepted that the article could convey that there were reasonable grounds for suspicion, why could not a reader conclude that the police were aware of those grounds, and entertained that suspicion? If the police are investigating a fire, and there are reasonable grounds for suspicion, and those grounds relate to a neighbourhood controversy that the police would be likely to have found out about, it would be natural for the police to be suspicious. There is no convincing reason to prefer the imputation accepted by Jerrard JA to imputation (b) above.
As to imputation (a), an article which is capable of conveying the meaning that there are reasonable grounds for suspicion of arson, and which also states and elaborates those grounds, taking as the introduction to an account of the fire the existence of the controversial development proposal, and developing the story by giving the neighbours’ point of view, could reasonably be found by a jury to convey that the suspicion is well-founded and that the suspects are guilty. An article which gives otherwise irrelevant prominence to the existence of smoke may be found to suggest the existence of fire [13] - [14].
35 In Favell, there was a report about facts from which it could be inferred the plaintiffs had a motive for committing arson. But motive is merely a circumstantial fact to be considered alongside other such facts, in an exercise of inferring guilt. Motive, by itself, is not capable of showing guilt beyond reasonable doubt.
36 In Favell there were also statements that the police and fire and emergency services were investigating, and that all fires were prima facie treated as suspicious. In most criminal trials, of course, a jury will usually know (no doubt from the weight of witness statements, VROIs and forensic reports) that there has been a criminal investigation. But the mere fact of an investigation (as distinct from revealing the fruits of that investigation) is not capable of proving, or even tending to show criminal guilt. Neither is a prima facie view of the police that all 'fires are suspicious'. Contrary to a submission of the newspaper, one may therefore put to one side the notion that 'smoke' in a defamation context described in Lewis and Favell can mean only a report of circumstantial facts constituting admissible evidence from which guilt could be inferred in a criminal trial.
37 In Favell, addressing a pleading at the interlocutory level, the 'smoke' communicated by the article was to be found in an inferred motive, the fact of an investigation, the expressed view of authorities that all fires are suspicious, and the existence perhaps of the convenient opportunity of the plaintiffs to be overseas when the fire occurred. Assessed together, a report raising all those matters was assessed by the High Court as capable of giving rise both to arguable Chase level one or two imputations, in respect of the plaintiffs and their involvement in the crime of arson.
38 Earlier cases need to be read in the light of the Favell plurality observations, towards assessing a published report about the existence of an official investigation, culminating in a criminal charge being laid. As Lord Devlin observed in Lewis, there can be no blanket rule about what meanings published words convey to the ordinary person. Consequently, every publication must be afforded a bespoken evaluation.
39 With the benefit of those observations, I can advance to examine the respective submissions of the parties.
The Newspaper strike out application against Dr Jneid's pleading
40 The Newspaper seeks orders that pars 4, 5, 6 and 8 of the ASOC be struck out, pursuant to either:
(a) O 20 r 19(1)(a) of the Rules of the Supreme Court 1971 (WA), as not disclosing a reasonable cause of action; or
(b) O 20 r 19(1)(c), as being such as may prejudice, embarrass or delay the fair trial of the action.
41 The Newspaper's application does not dispute its publication of the Article, as is pleaded under par 3 of the ASOC. It does challenge the defamatory imputation pleaded by par 4. However, the Newspaper attacks the alleged publication of Page One Isolated as pleaded under par 5, as well as challenging the arguability of the discrete imputation argued to arise under par 6.
42 The Newspaper filed an outline of written submissions of 3 October 2014, attaching the Article, plus what it says in truth was the actual poster it used for the 29 May 2014 edition of The West Australian. A substituted outline of written submissions was filed on 7 October 2014, correcting a number of typographical errors. The submissions are not addressed at any point against par 8 of the ASOC.
43 Of course, if pars 5 and 6 stand, it is difficult to see how par 8 could be challenged. The argued for imputation, if it arises, looks to be defamatory of Dr Jneid. On the other hand, if pars 5 and 6 are struck out, then a basis for reputational harm from Page One Isolated, viewed as a stand-alone publication, must fall away. Nothing was advanced by way of a direct challenge against par 8 by counsel for the Newspaper at the hearing on 3 December 2013 (ts 3).
44 It became apparent from the way counsel presented their submissions, both in writing and orally, that there are three key issues to resolve, namely:
(1) Is it arguably open to Dr Jneid to plead Page One Isolated as a distinct publication that can be complained of?
(2) If question (1) is answered in the affirmative, is it arguable that Page One Isolated carried the imputation that Dr Jneid was 'a member of an organised crime syndicate that engaged in trafficking drugs?'
(3) In any event, is it arguable that the Article as a whole carried the imputation that Dr Jneid was a 'member of an organised crime syndicate that engaged in trafficking large quantities of methylamphetamine?'
The Newspaper argues that Page One Isolated cannot be pleaded as a distinct matter complained of
45 The starting point for the Newspaper's arguments is the concept of the 'ordinary reasonable reader' in defamation case law. In this regard, reference was made to three passages from leading cases. First, in Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575, the plurality reasons of Gleeson CJ, McHugh, Gummow and Hayne JJ observed:
[T]he law of defamation seeks to strike a balance between, on the one hand, society's interest in freedom of speech and the free exchange of information and ideas (whether or not that information and those ideas find favour with any particular part of society) and, on the other hand, an individual's interest in maintaining his or her reputation in society free from unwarranted slur or damage [23].
46 That theme was echoed by Edelman J in Rayney v Pan Macmillan Australia Pty Ltd [2014] WASC 129, where his Honour said:
The ordinary reasonable person is a legal construct. He or she is not a fiction who is supposed to represent some judicial guess about the likely behaviour of the general public. Instead the reasonable ordinary reader is constructed to illustrate the boundaries of legal rights; in this case the boundary between the right to reputation and the freedom of speech [40].
47 According to the Newspaper, the ordinary reasonable reader is essentially a synthesis of two competing imperatives, namely the free exchange of information, and the protection of a person's good reputation (ts 5). As to that, it is said that it would be an unacceptable imposition upon free speech to allow defamation actions to proceed upon isolated parts of a publication the ordinary reasonable reader holds in their possession, but which is a segment taken out of its proper context.
48 From there, the Newspaper advances to correlatively argue that an ordinary reasonable reader must be taken to read the whole of any relevant publication: and towards that point see my reasons in Maher [26]. That, of course, is a well-established principle. However, the Newspaper advances even further to argue that in this particular case a hypothesised ordinary reasonable reader must surely 'suspend judgment' upon a reading of only Page One Isolated (ie until reading Page Ten). That submission seeks to invoke in support some concurring observations rendered by Hodgson JA in Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; (2006) 66 NSWLR 605. Due to the key importance of Hodgson JA's reasons to the Newspaper's arguments, I need to set out parts of those reasons in full. His Honour had said:
In my opinion, a plaintiff in defamation proceedings cannot be compelled to include additional material in the statement of claim unless (1) this additional material is part of what can reasonably be regarded as one publication that includes the material relied on by the plaintiff, and (2) the material relied on by the plaintiff must reasonably be regarded as part of a publication that includes the additional material.
In my opinion, the underlying reason for the first requirement is that defamation depends on how the ordinary reasonable reader/listener/viewer would understand the material relied on by the plaintiff; and while an ordinary reasonable reader/listener/viewer could be expected to take into account the context provided by the publication of which that material is part (and indeed, to suspend judgment if unable for any reason to take in that context), such a person could not be expected to look for material outside that publication in order to understand the material relied on.
The reason for the second requirement is that, where there can be reasonable differences of opinion about what constitutes the publication of which the material relied on is part, the plaintiff can choose (in a case where there are two possibilities) to rely on one or the other or both, at least unless the plaintiff's choice can be considered as unduly complicating the proceedings. If the plaintiff chooses to rely on one, and if the different context provided by the other is capable of affecting the meaning of the material relied on by the plaintiff, then damages may be recoverable only in relation to those ordinary reasonable readers/listeners/viewers who took that one (and not the other) to be the publication; while if the plaintiff chooses (and is permitted) to rely on both, then damages would certainly be recoverable in relation to both sets of ordinary reasonable readers/listeners/viewers.
In my opinion, those propositions are consistent with Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410, Burrows v Knightley (1987) 10 NSWLR 651, Phelps v Nationwide News Pty Ltd [2001] NSWSC 130, Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 and The Age Corporation Ltd v Beran [2005] NSWCA 289.
In the case of radio broadcasts, an ordinary reasonable listener may not hear the whole publication; for example, if listening to the radio while driving to work and arriving before the program finishes. However, it is still appropriate to identify what is the publication of which the material relied on by the plaintiff is part, because such an ordinary reasonable listener could be expected to realise that only part of the publication had been heard, and to suspend judgment to an extent that is reasonable having regard to the effect that the rest of the program could have on the meaning of the part that was heard.
In the present case, I do not think that even the first requirement was satisfied. Mr Blackburn submitted that the ordinary reasonable listener would have realised it was an unfolding story; but in the absence of any indication between about 9.00am and about 9.30am of when, if at all, further developments could be expected, I do not think an ordinary reasonable listener would regard what was heard between those times as part of some larger whole, or would have seen any need to suspend judgment until some time in the indefinite future when there may or may not have been further developments.
But even if the first requirement had been satisfied, so that some ordinary reasonable listeners would have taken that view, it is in my opinion indisputable that some ordinary reasonable listeners would have taken the publication as complete by about 9.30am, so the second requirement was plainly not satisfied [2] - [8].
49 I will return to that passage in the reasons of Hodgson JA in the dispositive part of these reasons.
50 For the time being, I record that the Newspaper basically invokes his Honour's reference to a principle of the reasonable reader 'suspend[ing] judgment' in [3].
51 In effect, the Newspaper argues it is a cardinal principle that a hypothetical ordinary reasonable reader must look at the whole of the matter complained of. But if they cannot, for whatever reason, access or absorb the entire context, they will suspend their judgment (ts 9).
52 From that platform, the Newspaper then highlights what is termed to be an express 'pointer' seen, on Page One, which mentions the byline 'GARY ADSHEAD EXCLUSIVE PAGE 10', juxtaposed near a picture of that named author. I will refer to this reference as the 'Adshead Pointer'.
53 If the reader gets to Page Ten, the Newspaper says, they will again see a picture of that same author, next to words 'EXCLUSIVE - Gary Adshead'.
54 On this basis, it is ultimately argued by the Newspaper that an ordinary reasonable reader would surely understand that the relevant publication extends to embrace all of what is found published on pages one and ten to be relevant to what is written about Dr Jneid in that issue, and surely not just Page One, viewed or read in isolation.
55 So, Dr Jneid seeks to complain of Page One Isolated as a discrete, stand-alone defamatory publication, on the basis of that Page One being displayed at various locations in a glass cabinet visible to the public. In response, the Newspaper invokes as a shield the plenary words of Hodgson JA in Obeid. It argues the ordinary reasonable reader must surely suspend their judgment about what they had read or seen at Page One, 'if unable for any reason' to open and read Page Ten of the newspaper - which was not displayed. '[A]ny reason', the Newspaper says, could include lack of interest, a lack of time, lack of money to purchase that day's whole newspaper, or any physical or logistical inaccessibility towards Page Ten (ts 11 - 12).
Case authorities: isolating components of a publication
56 Accepting this precise line of defence does not appear to have been dealt with locally, counsel for the Newspaper referred me to a number of the NSW authorities - including some referred to by Hodgson JA in Obeid, which were said to broadly support the Newspaper's position.
57 A number of the cases deal with so-called 'strike in' applications, where a defendant has effectively sought orders requiring that further surrounding published words must be added to what is the pleaded publication (ts 4). The 'strike in' cases could offer some broad assistance, in principle, towards resolving the present application by the Newspaper to 'strike out' Dr Jneid's attempted discrete reliance upon Page One Isolated, as a stand-alone publication (ie, without Page Ten).
58 The first case relied upon by the Newspaper is a first instance decision of Simpson J, Phelps v Nationwide News Pty Ltd [2001] NSWSC 130. Her Honour had observed at [22] and [28]:
Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field.
…
The material contained in Schedule A to the statement of claim was placed on the cover page of a weekend newspaper. While the newspaper itself was not formally put before me, the technique is a familiar one. The synopsis is designed to enliven the interest of and direct the reader to the more comprehensive detail contained further into the newspaper. The reference to the "full report" at p3 is intended to guide the reader to the more expansive account. In other words, there is a clear invitation to the reader to read the expanded version. (emphasis added)
59 The Newspaper emphasises disjunctive language of Simpson J seen to be used in [22], to the effect that either an unfairness to the defendant, or the untenability of the pleading, may deliver distinct grounds for striking out the separate pleading of two or more publications complained of.
60 The Newspaper proceeds to invoke two subsequent decisions, both of the NSW Court of Appeal concerning similar, but not identical publications concerning a Mr Roy Beran, in various newspapers circulating chiefly in NSW or Victoria.
61 The first appeal decision is Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107. McColl JA delivered reasons with which Mason P and Beazley JA (as her Honour then was) agreed.
62 At [6], McColl JA described the publication complained of in the Sydney Morning Herald:
The matter complained of appeared on two pages of The Sydney Morning Herald; the first and page four. I have set out the text of the matter complained of, with numbered paragraphs, in the schedule to this judgment. On the first page the article was divided into two sections. A red banner with the words "A HERALD INVESTIGATION" printed within it united the articles across the top of the page, while a borderline down the right hand side of the article separated the investigation story from the other few items on the front page. The two sections of the matter complained of were respectively entitled "The drug body-snatchers" and "No cure, Mrs James, but thanks for all the money." The latter portion of the matter complained of appeared under a photograph of a woman who was identified as Mrs James. A portion of the photograph of Mrs James extended into the text of the first section. The reader’s attention was directed to the continuation of the story on p 4 of the newspaper in two ways: in the first section the words "Take this body" imprinted over a shadowy photograph apparently of a baby and “More reports PAGE 4" appeared in a break-out box; the words "continued p 4" appeared at the end of the section relating to Mrs James.
63 Page 1 in the Sydney Morning Herald had manifested, in newspaper parlance, a pointer. Mr Beran had pleaded page 1 and page 4 severally, as separate publications, and then jointly as one [9].
64 At first instance, Adams J held that pleading in this manner was impermissible as it would give rise to 'entirely unnecessary complexity'. His Honour had therefore struck out the pleading of separate publications.
65 That decision was upheld on appeal. McColl JA referred to Phelps, stating:
In my view his Honour’s decision was correct. The manner in which the two articles were presented was such that the ordinary reader would have read them as one publication. They were inseparably linked. Each qualified the other. It was incumbent upon the appellant to include within his pleading every passage which materially altered or qualified the complexion of the imputations of which he complained. It was, in my view, essential in order to discharge that obligation that he pleaded the two articles as one publication [56].
66 Invoking that decision, counsel for the Newspaper argued, as a matter of principle, it was equally untenable for Dr Jneid to plead only the front page as a separate publication, whereas here, it was argued, the front page displays a clear pointer to other parts of the newspaper (ts 25, ts 33).
67 To fortify that submission, the Newspaper contrasts the opposite result in a second appeal concerning Mr Beran, The Age Corporation Ltd v Beran [2005] NSWCA 289, with Hodgson JA delivering the primary reasons, Beazley JA and Brownie AJA agreeing. The primary judge had noted the appeal decision in Beran v John Fairfax, but distinguished it (in a passage quoted at [24] of Hodgson JA's reasons):
It seems to me on the facts of the present case, the two articles are not so interlinked that permitting them to be pleaded separately is embarrassing. In my view the ordinary reader may well have read them as two separate publications. Their situation in the paper, i.e. on pages 1 and 13, is such that the 'pointer' or 'teaser' at the bottom of the page 1 article may have directed the reader to the next article, but equally, the article may have directed the reasonable reader to the article about the child with leukaemia. I do not believe them to be so inextricably intertwined that they should be classed as one publication and are not sufficiently connected and identified with each other. The plaintiff has the option of pleading in such a situation and has chosen separate publication. I am not satisfied I should allow the defendant the orders sought in respect of the 'strike in' application, and I decline the orders sought.
68 The Newspaper invokes as supporting its arguments, in particular, two paragraphs from the reasons of Hodgson JA in The Age v Beran:
On page 1 there was material the text of which was similar to but not identical with the first section of The Sydney Morning Herald material, but there was no material similar to any part of the second section of The Sydney Morning Herald material. The material on page 1 appeared towards the bottom of that page, under the headline 'Patients in Soaring Drug Tests'; and at the end of the section there were the words 'Features 13: Testing Treatments'. Inside the material there was a box with a photograph, a heading 'Human Factor', some material unrelated to the material complained of, and concluding 'News 6: Genome Project' [19].
…
The question then is, is the material as published in The Age such that the only view reasonably open is that this was one publication? In my opinion, plainly not. No part of the second section of The Age material appeared on page 1; and the first section on page 1 did not indicate that what was on page 13 was to be read together with what was on page 1 as part of the same whole. There were none of the indications of unity of the two sections displayed in The Sydney Morning Herald material and referred to earlier. Reasonable readers could well read what appeared on page 1 of The Age and not read what appeared on page 13. In my opinion, this was a case where reasonably-minded people could regard the two sections as separate publications, and could also regard them as part of a whole: that is, they could regard both possible classifications as being valid [43].
69 Differing outcomes in the two Beran appeals, according to counsel, turn on the clarity of the pointer in the Sydney Morning Herald, in contrast to a lack of 'unity' as between the sections that were published in The Age.
70 The present case, it is argued, falls into the category of unity more akin to page 1 of the Sydney Morning Herald in Beran v John Fairfax. It was submitted there could be no doubt, as one examines Page Ten, to which article the Adshead Pointer at Page One had been referring.
71 The Newspaper also refers back to Obeid, for support in the reasons of Tobias JA, with whom Ipp and Hodgson JJA (subject to Hodgson JA's earlier mentioned additional observations) agreed.
72 At this point, the Newspaper draws particular attention to Tobias JA's assessment that there were no 'indications of unity', citing [66] and [70]:
To further explain my fourth point, although each of the segments related to the same subject matter, there were none of the “indications of unity” between the segments to provide a sufficient connection and identification of one with the other. Nor is it possible to detect either of the elements referred to by Hunt J in Burrows [v Knightley & Nationwide News Pty Ltd (1987) 10 NSWLR 651] at 657D-F, to adopt and adapt the test referred to by his Honour. Is it not possible to discern either an intention on the part of the appellant that the later segments be heard together with the earlier segment comprising the matter complained of. Nor were there direct references in the segments internally one to the other so that the listener of the segment constituted by the matter complained of might reasonably be expected to continue to listen to the later segments whenever they might be broadcast.
…
To put the converse proposition, in my opinion it cannot be the case that the only view reasonably open was that the matter complained of and the additional material constituted one broadcast containing the whole context in which the meaning or sense of the words used in the former were to be understood by a body of ordinary reasonable listeners. It plainly did not. This was due, firstly, to the intervals between the segments; secondly, to the unrelated subject matters between the segments; and, thirdly, the lack of any "indications of unity" constituted by indications in the matter complained of that it was only part of a breaking story and that there was more to come. As was the case in The Age Corporation [Ltd v Beran [2005] NSWCA 289], the present was, at the very least, a case where some reasonably minded listeners could regard the matter complained of as a separate, self-contained broadcast containing the whole context of what the respondent was complaining about. The result was that even though some listeners (who no doubt listened to the whole program) could reasonably have regarded both the matter complained of and the additional material as constituting the whole context or as one broadcast, the respondent was entitled to plead only the matter complained of as forming the one broadcast containing the whole context in which the jury, as the tribunal of fact, was to determine whether the pleaded imputations were conveyed.
73 Contrasting these observations taken from Obeid, by way of contradistinction, the Newspaper argues that here, there are very strong 'indications of unity' as between pages one and ten, namely, by the common subject matter that is clearly linked by the Adshead Pointer, previously referred to.
74 The Newspaper also seeks to garner international support for its position from the first instance decision of Sharp J, and which is argued to be on all fours with the present case, namely Dee v Telegraph Media Group Ltd [2010] EWHC 924 (QB); [2010] EMLR 20.
75 The plaintiff in Dee claimed to have been defamed by a front page article headlined 'World's worst tennis pro wins at last'. The front page of the Daily Telegraph had displayed an accompanying pointer, saying 'Full story: S20', directing the reader to a further item in the sports section of the newspaper. Nevertheless, that S20 sports section did not form a part of the matter complained of by the plaintiff. This was successfully challenged by the newspaper.
76 The 'heart' of Sharp J's reasons, as counsel for the Newspaper characterised them, are found at [27] - [32]:
When one is considering a single article the ordinary reasonable reader is taken to read the whole article before reaching a conclusion on meaning, even though, as the courts have readily recognised, many readers will not in fact have read the whole article. So too, where one article is spread over a number of pages, presumably for space or other editorial reasons, the ordinary reasonable reader is to be taken to have turned over the pages and found and read what he or she is directed to, on the continuation pages.
Mr Caldecott submits there is a real distinction between cases where an article is 'free standing' so that some readers will have read it on its own, and cases where there is a continuation page. In the latter case he submits, it is to be presumed the reasonably careful reader will not ignore a continuation page, whereas no such presumption can arise in respect of the former.
However, in my view the key question in this context is whether the various items under consideration 'were sufficiently closely connected as to be regarded as a single publication'—and this is so whether or not the items in the same publication are continuation pages or different items of published material relating to the same subject matter. It seems to me this approach is consistent with the flexibility as to the manner and form in which information and ideas may be expressed and imparted protected by the right to freedom of expression under art 10 of the European Convention on Human Rights, and with the relevant Strasbourg jurisprudence.
This will be the case even though the reality is that many people will have read one of the relevant articles only. That is not to say however, that the separation of the relevant articles, or the way they are presented may not be relevant on meaning, since meaning is affected by the mode of publication (that is, the relative prominence or emphasis given to what is published) as well as by context, as Lord Nicholls emphasised in Charleston [v News Group Newspapers Ltd [1995] 2 AC 65].
Ordinarily it is not controversial that articles appearing in the same publication relating to the same subject matter are to be read together for the purposes of determining meaning. But if the matter is controversial, in my view there is no reason why such a question should not be determined, in an appropriate case, on a CPR Pt 24 application. I do not accept Mr Caldecott's submission that the matter must be left to trial. Indeed it is obviously proportionate and sensible for the matter to be determined before trial given the potential importance of the issue to the parties for the future course of the litigation (for example, in determining their respective prospects of success and the legitimate ambit of the issues to be tried).
In this case the front page article was a limited one of a kind known as 'the write off' commonly put on a front page to invite attention to the 'full story'. There was a very clear cross reference in the front page article itself in bold type to the 'full story' and the reader was told where to find it. There was an obvious and clear link between the two. It would also have been obvious to all readers of the front page article, that read alone, it did not constitute or purport to be the full story. In my view in the light of the clear and close connection between them the two articles must be read together for the purpose of determining meaning; and the contrary is not arguable. There is no other compelling reason why this issue should be left to trial. Accordingly, the defendant succeeds on this part of its application. (original emphasis)
77 Leaving aside references to European human rights law, it was submitted that Dee is 'materially … identical' to Beran v John Fairfax and that the decision supports the force of a 'pointer' principle, the Newspaper derives from the two Beran appeals (ts 39).
78 Before leaving these cases, I should note what is a passing assertion at par 22 of the Newspaper's substituted submissions, that the present facts do not manifest a true 'poster' case. It is contended as a proposition of fact that the actual poster for the 29 May 2014 edition of The West Australian was a totally different document (found appended to the Newspaper's submissions as a Schedule B). The document displays the masthead of The West Australian, followed by words 'NUMBER OF KIDS NOT IMMUNISED ON RISE'.
79 The Newspaper's factual submission as to the true poster used that day was not, on my assessment, strongly pressed at the hearing, although it was not formally abandoned. But upon a strike out application, challenging the arguability of a plaintiff's cause of action, it is not open to advance contradictory factual evidence. Objection to the Newspaper's approach on this issue was rightly taken: see RSC O 20 r 19(2).
80 I will have more to say about so-called poster case principles later. But I do note at this point that the Newspaper appears to accept, as it must upon the decided cases, that a mere newspaper poster may be pleaded alone as a discrete defamatory publication which may be complained of (ts 13).
The Newspaper argues Dr Jneid's pleaded imputations do not arise
81 In its written submissions, the bulk of the Newspaper's arguments were directed against the Article as a whole, that is, Page One and Page Ten of the edition read together. I will therefore summarise those arguments first.
82 The Newspaper makes an early point that any assessment as to meaning, should be made in the context of the publication as a whole. The proposition is not contentious. In particular, it is said that the ordinary reasonable reader will only read the whole Article once.
83 Next, the Newspaper says (also uncontroversially) that a strained, forced or unreasonable interpretation of the published matter complained of is impossible: see again, Jones 1370 - 1371, cited by Malcolm CJ in Nationwide News Pty Ltd v Abboud (Unreported, WASC, Library No 960710A, 12 September 1996).
84 From that authority base, the Newspaper moves to invoke the line of defamation cases discussed above, particularly Lewis and Harrison, advancing the general proposition that an imputation as to a plaintiff's guilt concerning criminal misconduct, cannot be drawn out of a mere report that an inquiry by police or another official organisation, is on foot, or from the bare report of an arrest, or a factual report as to the laying of a criminal charge. Again, so much may all be accepted as a matter of principle.
85 The Newspaper then moves to invoke the classic exposition by Lord Reid from Lewis, concerning the assumed dialogue passing between two hypothetical ordinary reasonable readers at 259 - 260, but adapted by the Newspaper as an exercise in contemporary juxtaposition in the present case (see the right-hand column below) and in the Australian colloquial vernacular, at pars 13 and 17 of its written submissions:
| Lord Reid (259 - 260) So let me suppose a number of ordinary people discussing one of these paragraphs which they had read in the newspaper. No doubt one of them might say - 'Oh, if the Fraud Squad are after these people you can take it they are guilty.' But I would expect the others to turn on him, if he did say that, with such remarks as - 'Be fair. This is not a police state. No doubt their affairs are in a mess or the police would not be interested. But that could be because Lewis or the cashier has been very stupid or careless. We really must not jump to conclusions. The police are fair and know their job and we shall know soon enough if there is anything in it. Wait till we see if they charge him. I wouldn't trust him until this is cleared up, but it is another thing to condemn him unheard'. | The Newspaper's submitted colloquial adaption to the present facts Suppose a number of ordinary reasonable readers of The West Australianhad read the whole story (front page and Page Ten) of which the plaintiff complains. No doubt one of them might say: 'If the organised crime squad is after these blokes you can bet they are as guilty as sin'. But you would expect the others to arc up, if he did say that, with remarks such as: 'Fair go, the cops don't run this State. It looks like a mess all right; that's why the cops are onto it. But that Ratneb bloke might just be stupid or careless. Don't count the chickens til the eggs are hatched. If there is something there the cops will charge him. They had 70 cops on a police raid and all they got him on was not securing a licensed gun in a gun cabinet. Give me a break; let's see if they charge him with anything else. I don't reckon they've got anything else on him'. |
86 The Newspaper then submits from that comparative platform, that any person who takes part in selling or supplying, or offering to sell or supply drugs, or who conspires to do the same, commits a serious criminal offence: Misuse of Drugs Act 1981 (WA) s 6(1)(c) and s 33(2), read with s 7 - s 9 of the Criminal Code (WA).
87 As to that, I would doubt whether a hypothetical ordinary, reasonable reader of the Article is likely to be aware of the specific content of sectors of the Misuse of Drugs Act or the Criminal Code. Nevertheless, I accept it would be open to assume that this hypothetical reader in today's society would surely know that methylamphetamine is an illicit drug, that the selling of that drug is a crime, and that the responsible parties to a serious crime may extend not only to those who physically or otherwise directly handle illicit drugs or receive money in exchange for drugs, but also extend to include other persons within the overall scope of any criminal enterprise surrounding the sale or distribution of such illicit drugs.
88 The culminating thrust of the Newspaper's challenge, as I understood it, was that an ordinary reasonable reader of the Article would expect that if Dr Jneid had actually been thought by the police to be a party to an organised crime syndicate, and had thereby taken part in an illicit drug-related offence, or was reasonably suspected of doing so, that he would have been charged with a drug-related offence. Yet the Article (reading Page Ten) plainly does not say that. Page Ten only mentions as regard Dr Jneid a less serious (summary) gun cabinet security offence.
89 Hence it was contended by the Newspaper that while the Article was not limited to a mere report as to the laying of charges, or to the mere fact of a police inquiry, the Article overall had made it clear as regards Dr Jneid, that notwithstanding raids at his and various other properties by large numbers of police and a seizure of drugs at other properties, that no charges related to illicit drugs, or to drug trafficking, had ever been laid against Dr Jneid.
90 By reference to Lewis and to Favell, as earlier discussed, counsel for the Newspaper accepted the force of the analogy about writing about 'smoke', whilst nevertheless creating an overall impression of 'fire'. But the use of such terms in the case law, it was contended, ought properly be understood as raising no more than an allusion to the ability of the hypothetical ordinary reasonable reader to infer guilt from a report of sufficient published underlying objective facts. That approach was not appropriate here, it was argued, as regards the contents of pages one and ten.
91 In relation to Page One, the Newspaper says that all that it has there identified is the existence of a 'probe', without any mention of a 'syndicate', or of any 'trafficking' in drugs. It also invokes by way of shield these observations of Lord Devlin from Lewis at 286:
Let it be supposed, first, that a statement that there is an inquiry conveys an impression of suspicion; and, secondly, that a statement of suspicion conveys an impression of guilt, it does not follow from these two suppositions that a statement that there is an inquiry conveys an impression of guilt. For that, two fences have to be taken instead of one. While, as I have said, I am prepared to accept that the jury could take the first, I do not think that in a case like the present, where there is only a bare statement that a police inquiry is being made, it could take the second in the same stride.
92 Counsel for the Newspaper accepted the word 'implicated', used on Page One, could be taken to extend to all the persons referred to, namely to the 'Islamic boss and brothers'. However, he argued that the totality of the words amounted only to persons being 'implicated' in a 'probe', rather than to Dr Jneid being implicated in any actual 'crime'.
93 Reiterating earlier submissions against Page One Isolated pleaded as a discrete publication, the Newspaper argued that the ordinary reasonable reader must 'suspend judgment', only asking 'Implicated how?', after viewing or reading Page One. The ordinary reasonable reader would then continue, to read at Page Ten that Dr Jneid, after a raid on his home, had only been charged with a relatively minor firearms offence.
94 Use of the word 'boss', on Page One, was explained as being only a benign reference to Dr Jneid holding a leading or central role in 'something Islamic', such that only the reader who was impermissibly avid for scandal might assess the word 'boss' on Page One as suggesting 'crime boss' (ts 45).
95 Addressing Page Ten, the Newspaper submitted, as regards Dr Jneid, that there was only one reference in the body of the text to a 'syndicate', found in the third column of text, namely by the phrase 'same syndicate'. The ordinary reasonable reader, it was said, would understand that reference to say that only the six people as were mentioned (and thereby, not Dr Jneid) had been charged in connection with seized drugs, and it was they and, again, not Dr Jneid who were a part of the so-called syndicate (ts 45 - 46). The 'syndicate' reference, it was said, did not reasonably extend to draw in the earlier mention of the firearms charge against Dr Jneid. While Page Ten does mention drugs charges against his brothers, it is submitted the ordinary reasonable reader would not infer guilt as regards illicit drugs against Dr Jneid, based merely on some assumed association within the Article to the conduct of his brothers.
96 Counsel for the Newspaper also emphasised - and bearing in mind it has not yet pleaded a defence - that the Newspaper was not necessarily denying that the Article, when assessed as a whole, bore some level of defamatory meaning against Dr Jneid. It appeared to be foreshadowed that the Newspaper might eventually plead in its defence that to the extent the Article bore arguable (lesser) meanings defamatory of Dr Jneid, that this would not extend as high as him being guilty of trafficking in drugs. It was unclear if the Newspaper by this submission meant that the Article carried some Chase level two or three meaning, either that Dr Jneid was suspected by police on reasonable grounds of trafficking drugs, or that there were grounds to investigate his conduct (ts 77, 81 - 82). It was also unclear if there would also be a plea in due course that any such lesser imputation (ie, less than guilt), was true or substantially true: see generally Polly Peck (Holdings) Plc v Trelford [1986] QB 1000; Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147. As to a Chase level 3 meaning, see my reasons in Shea v News Ltd [2015] WASC 1.
The plaintiff's response
Dr Jneid contends he may legitimately plead Page One Isolated as a discrete defamatory publication
97 Opposing the strike out application, senior counsel for Dr Jneid, Mr Davies SC, made it clear that the nature of the evidence to be tendered at trial on behalf of Dr Jneid would not be that Page One Isolated had been published merely by being left displayed facing outwards, as the visible front page of that day's complete newspaper, available for purchase from dispensing machines upon payment. Rather, as he explained it, Page One Isolated, on Dr Jneid's case, had been published by being displayed, in isolation from all the other pages of the 29 May 2014 edition of The West Australian, but with the newspaper's content otherwise rendered inaccessible to an observer, from behind a glass cover. Hence it was said that Page One Isolated had been visible and readable, displayed under glass at various places in WA, including, it was said, in the lobby of Newspaper House in Osborne Park (ts 63; cf ts 10), for that day's edition.
98 The question of whether that type of display of Page One Isolated, visible under glass can constitute a sufficient defamatory publication, senior counsel submits, is basically a factual matter, properly to be resolved at a trial. He noted that while counsel for the Newspaper had provided the example of an ordinary reasonable reader seeing a front page of a newspaper available for purchase at a shop, that in such a situation, a potential purchaser might then still pick up the whole paper and flick through it at the shop and so get to read Page Ten. But this was not the scenario being sought to be raised as regards the Page One Isolated pleading.
99 Senior Counsel for Dr Jneid emphasised Page One Isolated was pleaded as a distinct publication, only to catch publication circumstances where that day's edition of the newspaper was put on display from front page up, and otherwise the rest of the newspaper had been physically isolated from the other pages of the 29 May 2014 edition of The West Australian, and was otherwise physically inaccessible beyond Page One Isolated, viewed through glass.
100 Senior counsel for Dr Jneid then argued that the Newspaper had placed far too much emphasis on the Adshead Pointer. He submitted that the words 'GARY ADSHEAD EXCLUSIVE PAGE 10' were essentially ambivalent. At any rate, they were, he said, a much less specific invitation to continue reading further at Page Ten, in comparison with the linkage terminology seen used in the other cases, such as 'full story', 'continued' or 'more on …' (ts 64). The pointer used in Phelps, for example, was noted to have said 'full report' [3].
101 More generally, senior counsel submitted, there was no rigid principle to the effect that a use of a pointer required all parts of a newspaper dealing with a topic or issue, to necessarily be read in conjunction. Indeed, he observed that in The Age v Beran, the front page had contained a pointer, as was described at [19] - [20]. Yet the plea as to a discrete publication put against The Ageby Mr Beran had survived scrutiny, in those particular circumstances.
102 Senior counsel accepted that a person who only sees a poster advertisement for a newspaper must, at some level, know that somewhere within the paper there is likely to be some further material relating to the subject matter of the poster. But the assumed awareness on the part of the ordinary reasonable reader about that likely existence of further material, whether or not augmented by a pointer, was not sufficient here, it was submitted, to render Page One Isolated plus Page Ten as necessarily only to be assessed as unified parts of one single publication.
103 Dr Jneid, of course, does (alternatively) plead pages one and ten as a single publication, which he defines together as the Article. I interpolate, although it is not completely clear, that Dr Jneid would seem to accept that where the ordinary reasonable reader of this edition of the newspaper could in fact physically obtain access therein to pages one and ten of this edition, that the two pages do constitute the relevant single publication. In that case, they should, or at any rate can, be pleaded together as the alleged defamatory publication.
104 Senior counsel for Dr Jneid argued as well that the test deployed by Tobias JA at [70] in Obeid, would require this application by the Newspaper to be dismissed, as long as some ordinary reasonable readers had viewed only Page One Isolated whilst secured and displayed inside a glass box - as comprising the whole publication.
105 Finally, senior counsel argued that even if the ordinary reasonable reader would take the relevant publication to comprise further, potentially relevant material to be found at Page Ten of that edition of the newspaper, that the hypothetical reader would not necessarily 'suspend judgment', in the manner contended for by the Newspaper. He submitted that this reader would instead more likely infer that any further Page Ten material would likely either support, or at least be consistent with the impact of what had already been read at Page One.
106 In short, the Newspaper's generalised 'suspension' of judgment principle was rejected as a matter of principle by senior counsel as being a fallacy. Each case needed to be distinctly evaluated. Here, it was submitted that there was no basis for the hypothetical reader to suspend judgment until Page Ten was reached and read, as the 'dye' had, in effect, already been permanently cast and well set by reason of the reputational harm delivered from Page One.
Dr Jneid submits his pleaded imputations arguably arise
107 Dr Jneid draws attention to a number of further features he says more than support a reasonable arguability in both his pleaded imputations, at the interlocutory level.
108 First, with respect to Page One Isolated, there are a number of aspects it is said are 'capable of conveying to an ordinary reasonable reader that the newspaper is raising a matter of grave importance regarding the plaintiff': it is found printed 'on the front page of Western Australia's only daily newspaper of record'; Dr Jneid appears featured in the accompanying photograph (named next to the photograph of his brother Ziad); and the Page One photographs and headlines are large in size. These general points are all accepted by the Newspaper, although it is responded that they do not thereby suggest or point towards Dr Jneid as being guilty of having committed any criminal offence.
109 But, Dr Jneid then emphasises a prominent use at Page One of evocative and bold headline words 'GUNS DRUGS AND MONEY'. He says that those bold words are more than capable of conveying to the ordinary reasonable reader that Dr Jneid is linked to a 'collective venture' involving all those problematic nouns. Notably, he also submits, that Page One alludes both prominently and conjunctively to an 'Islamic boss and brothers', and thereby, to a nominated group of persons which plainly includes him.
110 Moving to words following at Page One, Dr Jneid says that the word 'implicated' must mean 'involved', and that the statement that he is 'implicated in [an] organised crime probe', in reality, means that he is being said by the newspaper to be 'implicated in organised crime'.
111 Dr Jneid points back to the word 'boss', contending it is inapt to describe a theologian or community leader. Further, he says that by being juxtaposed against his 'brothers', that he as the 'boss', is being afforded an even greater prominence, as someone with 'a leading or central role in the organized crime', insinuated to exist (Dr Jneid's submissions, par 4(i)).
112 Linking that submission to earlier arguments about the format of Page One, Dr Jneid asks why his photograph appears so prominently, and at least why it is given an equal physical prominence on the front page to that of his brother, if not because Dr Jneid is being suggested as well to be implicated in the guns, drugs and money and in an organised crime context.
113 Moving to Page Ten, Dr Jneid argues that the key points the ordinary reasonable reader would take away, as a matter of general impression at this point, are the existence of a crime syndicate, the seizure by authorities of an illicit drug, namely methylamphetamine, along with a seizure of weapons and cash - all in the context of a series of police raids, and then the consequent laying of criminal charges against numerous persons, including a firearms charge laid against Dr Jneid, as part of the overall investigation into organised crime.
114 From all this, Dr Jneid says, the ordinary reasonable reader is well capable of understanding the Article to arguably carry, by its natural and ordinary meaning, the defamatory imputation that he is a part of a syndicate trafficking large quantities of methylamphetamine.
Disposition
Does Dr Jneid's stand-alone Page One Isolated argument stand or fall?
115 It is invariably necessary at the outset to identify and define the actual defamatory publication complained of, before moving to resolve ensuing questions as to whether the publication arguably conveys the imputations pleaded and is arguably defamatory: see observations of Nicholas J in Sandilands v Channel Seven Sydney Pty Ltd[2005] NSWSC 1250 [23]; Obeid [45] (Tobias JA, quoting Sandilands).
116 Identifying the relevant publication here, raises, in turn, two sub-issues. The first is the Newspaper's submission that the so-called Poster (ie Page One Isolated) was never displayed as a poster, as pleaded by the plaintiff, which is a factual point. The second, more important issue, is that even if Page One Isolated was, in fact, so displayed, can it permissibly be pleaded as a discrete publication complained of, given the newspaper argues the ordinary reasonable reader must draw no conclusions at all from merely Page One, and must instead 'suspend judgment' until reading Page Ten (or, if unable to get access and to read Page Ten, to suspend judgment indefinitely).
First Issue: Was Page One Isolated a publication displayed under glass as pleaded – a question of fact for another day
117 The Newspaper did not formally abandon its written submission that this is not a 'poster' case, because the actual poster used for the 29 May 2014 edition was a completely different document. On the other hand, it did not develop that factual submission at all at the hearing on 5 December 2014. The de facto abandonment was appropriate.
118 Evidence is not generally admissible on a strike out application challenging the arguability of a pleaded cause of action. There is, of course, authority that a document that is referred to by a pleading may be taken to be a part of the pleading, and so, may be referred to, without being attached to an affidavit: Day v William Hill (Park Lane) Ltd [1949] 1 KB 632. However, I do not take it to follow that a strike out application becomes a proper forum to resolve, before trial, what is at root a factual dispute over the correct document that in actuality is the one referred to under the pleading.
119 In Mickelberg, the Court of Appeal was confronted with a dispute over how an alleged radio and internet broadcast was published, and so, whether the publication would amount to libel or slander (before an abolition of that legal distinction by the uniform Defamation Acts). Steytler J said, in the absence of agreement between the parties as to 'the manner in which, or the means by which, the [matter complained of] was published', the question should be left for trial. So it is upon this true poster issue for the present case.
120 Hence there is, in this case, no legitimate basis to refer to or evaluate the Newspaper submitted extraneous poster material - the ASOC itself avers which words are alleged to have been published, and how.
Second Issue: Page One Isolated as a stand-alone publication
121 Absent a binding authority which directly parallels the facts of the present case as pleaded, the second issue, in the end, can only be resolved as a matter of principle. Considerations assembled below together point me to the conclusion that Dr Jneid at this stage, can legitimately plead Page One Isolated, or as he terms it, the Poster, as a discrete publication. The actual published extent of this discrete mode of display is, of course, another matter. That again raises a question of fact for the trial bearing, amongst other things, upon the issue of damages, if Dr Jneid is successful upon this aspect of his case at his trial.
122 Defamation, like other areas of the law concerned with the construction of written or spoken language, generally deprecates interpreting words outside the overall context in which they are used. This approach is recognised, for instance, by a longstanding principle in defamation law that the 'bane' of a publication must be taken with any 'antidote', or in some jurisdictions, the defence by justification of a 'common sting', or of contextual imputations : see Chalmers v Payne (1835) 2 Cr M & R 156, 159; 150 ER 67, 68 (Alderson B); Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68, 72 (Lord Halsbury LC); Polly Peck, 1020 (O'Connor LJ); The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 [318]; Defamation Act 2005 (WA) s 26. This is also a reflection of a principle that defamation is concerned with damage to someone's reputation. Indeed, that is the essence of the tort.
123 Damage to reputation occurs when defamatory matter is communicated to and comprehended by a reader, listener or observer - namely, when a publication occurs: Gutnick [25] - [27]. Hence also, there is the recognised defamation law principle that A cannot defame B, by a publication made only to B himself.
124 The newspaper's notion that the adverse effects of something assessed as a defamatory publication will necessarily be mollified, or neutralised, merely by alluding to the existence of further, possibly countervailing, matter, presents as I would assess it, as something of a novel proposition. That is especially so where the prospects that the ordinary reasonable reader will actually go on to read the extra material, is largely speculative.
125 The newspaper's absolutist submission above, presents as contrary to what I would respectfully assess as a general underlying theme of the earlier discussed case authorities invoked in support of this application, particularly the reasons of Hodgson JA in Obeid concerning the hypothetical reader's need to suspend judgment. Emphasis was given to his Honour's use of the words, 'unable for any reason'. It was argued that they should be afforded a plenary effect, and so, cover any circumstances, where an ordinary reasonable reader cannot or would not access, say Page Ten. But here it is also necessary, in my view, to respect some of the significant qualifications Hodgson JA made in his Obeid observations concerning the reader's suspended judgment, including:
(a) The ordinary reasonable reader's suspension of judgment in certain circumstances, needing to be balanced against the allied recognition that the reader cannot be expected to ferret about for material 'outside that publication' [3] (my emphasis). His Honour also observed in Obeid that before asking if the ordinary reasonable reader would 'suspend judgment', one first has to identify 'what is the publication of which the material relied on by the plaintiff is part' [6].
(b) Use of the word 'could' by Hodgson JA is, in my view, significant. It is plain from [3] that his Honour was elaborating upon the basis for only the first limb of a bifurcated test – whether the additional material 'can reasonably be regarded as one publication that includes material relied on by the plaintiff' [2]. Hodgson JA had said
even if the first requirement had been satisfied, so that some ordinary reasonable listeners would have taken that view, it is in my opinion indisputable that some ordinary reasonable listeners would have taken the publication as complete by about 9.30am, so the second requirement was plainly not satisfied [8].
(c) Hodgson JA also observed that the ordinary reasonable reader 'could be expected … to suspend judgment to an extent that is reasonable having regard to the effect that the rest of the program could have on the meaning of the part that was heard' [6] (again, my emphasis). That formulation displays a need for an underlying factual evaluation about what is reasonable in all the circumstances. Hence, it is necessary here to evaluate with greater nuance than merely to note an existence on Page One of the Adshead Pointer to Page Ten.
(d) In Obeid, Hodgson JA was in the end left satisfied that neither of the two criteria had been satisfied. But I was not taken to, and have not for myself been able to independently locate, any defamation cases where a court has concluded that the ordinary reasonable reader's judgment should be 'suspended': cf Robinson v Brighton [2007] NSWSC 1125 [11], [16] (reaching the opposite conclusion). On the available jurisprudence, I would assess the generalised notion of a reasonable reader's mandatory suppression of judgment as something of an untested proposition.
126 A comparison of the reasons and outcomes in Beran v John Fairfax and The Age v Beran does not, on my view, support the Newspaper's further submission that use of a 'pointer' will necessarily require that two or more reports found located at different pages in one edition of a newspaper, must invariably be read together as one single matter to be complained of. What I assess the Beran appeals do display is that each case requires a bespoken evaluation of its publication circumstances and that in that overall process, the use of a pointer may be a relevant consideration to weigh, and further, that some pointers used may be stronger or weaker than others in any attempted unifying linkage objective.
127 In The Age v Beran, there was a multiplicity of articles which the ordinary reasonable reader could have interpreted as related to the front page item [24]. But the pointer in The Age was not sufficiently precise to surmount the presented ambiguity. The ordinary reasonable reader could not be assumed to have read the matter complained of alongside extra published matter which the defendant unsuccessfully sought to have added.
128 Similarly, in McFarlane v Nationwide News Pty Ltd [2014] NSWSC 1574, a plaintiff complained of an article on Page One, which had there included a pointer saying 'full report pages 4 to 5', and two further articles on those pages. There was an article on page 4, the defendant sought to have 'struck in'. McCallum J, noting Phelps and Obeid, dismissed the application. She observed that while a composite pleading of all four items would have been open to the plaintiff, the 'high hurdle' for a defendant to compel such pleading was not surmounted in that case: McFarlane [12].
129 The same 'hurdle', in my view, presents here in current circumstances for the Newspaper. Similarly, it has not been surmounted, in my view.
130 I detect no real challenge here to a general proposition that the ordinary reasonable reader would have little difficulty understanding that Page One and Page Ten are to be read together - once the reader physically obtains access to the whole newspaper. Indeed, elsewhere Dr Jneid pleads alternately that what is found on pages one and ten is a composite publication, namely, the Article. The NSW 'strike in' cases could have assumed a greater relevance here, if Dr Jneid had only sought to plead the words on Page Ten in isolation as the relevant publication (but of course, he does not). And the NSW cases do not reveal that those courts were ever dealing with what I would respectfully assess as the presenting facts of a wholly unique factual scenario of a front page of a newspaper said to be published alone, albeit visible to be read to that extent from under glass.
131 Concerning the English decision in Dee, I reiterate that Sharp J had noted, in the final paragraph of the dispositive part of her Honour's reasons that there was a 'very clear cross reference' to the 'full story', and to its location in the sports section, so as to create an 'obvious and clear link' between the two. That observation is directed to a bedrock proposition of fact which opens that part of her Honour's reasons, namely:
[W]here one article is spread over a number of pages, presumably for space or other editorial reasons, the ordinary reasonable reader is to be taken to have turned over the pages and found and read what he or she is directed to, on the continuation pages [27].
132 It can be appreciated immediately that the underlying factual foundation for Dee is not akin to the case currently pleaded by Dr Jneid. Dee does not deal with the bolder proposition that where a reader can see and read a Page One pointer, but cannot at the time physically access the rest of the newspaper in order to turn up and read the other pages, that this reader must then be required to 'suspend their judgment' concerning what they have read to that point.
133 The limits to which a pointer or cognate cross-reference can be used to expand beyond the pleaded publication complained of, also emerge, in my opinion, in some of the internet webpage cases. In Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263, McCallum J concluded that a webpage was a discrete publication, albeit it contained hyperlinked words which would light up, change colour or change the cursor, when a cursor was moved over them, so as to encourage a viewer to possibly click on them and to thereby advance to view further material [17] – [19]. McCallum J, in particular, was influenced by 'the way in which people view material on the internet', and the conclusion by the High Court in Gutnick that a publication occurs where and when the relevant material is downloaded: [44], [56] (Gaudron J), [124] (Kirby J), [184] (Callinan J). As earlier noted, the High Court's reasoning in Gutnick was predicated on its recognition that the fact of defamation occurs upon a publication and that this is when reputational harm is suffered.
134 McCallum J's reasons had referred to an earlier judgment by a Full Court of this State, The Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210. In that appeal, Anderson and Owen JJ, at [10], and Wheeler J, at [48], had concluded that a letter published on a website could be pleaded on its own, as the relevant publication. Notwithstanding hyperlinks to other parts of the website, the letter was plainly a separate 'file', intended to be, and which would be 'called up and viewed as a separate article'.
135 In Kermode, McCallum J, at the end, was satisfied there would
be a class of readers who would choose to download that single page and confine their reading to the contents of that page, without pursuing any hyperlinks. Each can certainly be read as a single item [27].
136 If it is open to plead distinctly, different pages displayed on a website (which can be accessed more or less instantaneously and at no charge) as being distinct publications complained of, then, by parity of reasoning, it is logically difficult to see how the same approach arguably, ought not be taken here. A front page of an otherwise inaccessible issue of a newspaper that is displayed in a secured glass box with only its front page visible and readable may arguably be evaluated in the same fashion a a single web page - albeit the viewer is likely to know that there is more material to be assessed further on at the internet website or in the otherwise inaccessible remainder of that issue of the newspaper.
137 Chesterman J had noted in Robinson v Australian Broadcasting Corporation [2004] QCA 319 that the pointer and 'headline' cases go back some time. A leading headline case in Australia is World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712, the proceedings gaining the attention of the NSW Court of Appeal again in World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189 and, on appeal from that decision in the High Court in Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632. In the 1976 NSW Court of Appeal case, Glass JA had observed
the legal effect of a headline cannot be judged in isolation, but must be considered together with matters appearing in the body of the report which qualify or explain it (725).
138 Nevertheless, before reaching that position, Glass JA had distinguished another type of case:
Reliance was also placed upon a decision of this Court: West v Mirror Newspapers Ltd, that a plaintiff may declare upon words published in a poster, and disregard the very considerable qualifications placed upon those words by what appears in the newspaper. In my opinion, posters stand in a special position, for the obvious reason that they are published to many persons who do not read the newspaper itself (724 – 725). (citations omitted)
139 I also mention, in the same regard, Warne v The Herald & Weekly Times Ltd [2000] VSC 210 [13]; and Loo v Regional Publishers Pty Ltd [2003] NSWSC 834.
140 In West v Mirror Newspapers Ltd (1973) A Def R 50-001, Jacobs P, Hutley and Reynolds JJA, concluded that a newspaper's poster displaying the words set out below:
MORRIS WEST
WIFE'S LOVE FOR DOCTOR
was capable of carrying a defamatory meaning, of and concerning the plaintiff, and without referring to the relevant article in the newspaper itself. The case is discussed by TK Tobin QC and MG Sexton SC in Australian Defamation Law and Practice (at 10 December 2014) [4170] and [5070] as follows:
In West v Mirror Newspapers Ltd the Court of Appeal held that the plaintiff in his declaration could rely upon words published in a poster, and disregard the very considerable qualifications based upon those words by what appeared in the newspaper. It will be readily seen that posters are exhibited generally to the world at large, and are not the subject of individual sales as in the case of the newspapers which they advertise. Defamatory matter may be communicated to all of those people who read a poster and do not also purchase the newspaper.
…
The display of a poster or billboard, such as are used by newspaper vendors, or to advertise plays and films, is a publication of any defamatory matter contained on the poster. It is not necessary for a plaintiff to show that persons to whom the poster was published in turn read the newspaper or saw the play or film. If the poster is, on its face, defamatory then a plaintiff is entitled to sue on it. (footnote citation to West omitted)
141 Pleading of a poster in isolation in a defamation context can present forensic difficulties, including proving that the publication was of and concerning a sometimes otherwise unidentified plaintiff. (That of course is not an issue here, with Dr Jneid seen to be expressly named by words placed next to his photograph on Page One.)
142 The Newspaper did not cavil that a bill poster could be sued upon, by itself as a defamatory publication. Instead, its distinct challenge was that use of the Adshead Pointer necessarily required Page One to be read with what was later to be found eventually at Page Ten, rather than isolating Page One to be assessed alone, in the fashion analogous to a bill poster.
143 An ordinary reasonable reader who has viewed Page One Isolated, then purchased the whole newspaper, would know that a continuation at Page Ten of the subject matter of the front page is not in a sports, classifieds, or liftouts, but a part of general news. They would also know that as a headline story, its continuation is likely to be found somewhere towards the front section of the newspaper. Being of average intelligence, such a reader is more than capable of putting together what comprises the complete Article, irrespective of whether or not the Adshead Pointer tells them precisely the page where continuation is to be found. Given that, unlike in The Age v Beran, or McFarlane, there is not said to be any ambiguity about which item is the continuation of the Page One material. Hence, the words 'PAGE 10' within the Adshead Pointer actually add very little.
144 Page One Isolated is likely to be read differently to a complete newspaper, which the reader has more time to pore over: Robinson [27] (Chesterman J). Moreover, emphasis must be given to any 'interval' between publication of Page One Isolated, and a contingent further publication of Page Ten, when the ordinary reasonable reader possibly takes it upon themselves to buy the newspaper and otherwise to read Page Ten: cf Waites v Macquarie Radio Network Ltd [2006] NSWSC 507 [22] (Nicholas J); see also Obeid [45].
145 I would not, prima facie, assess the present facts as a situation where the text of a Page One headline is, in and of itself, so ambiguous or insipid as to inevitably leave an ordinary reasonable reader wondering what is being conveyed: cf Grand Theatre & Opera House (Glasgow) Ltd v George Outram & Co Ltd[1909] SC 1018; [1909] 2 SLT 75; Leon v Edinburgh Evening News Ltd[1909] SC 1014; [1909] 2 SLT 65. As discussed below, although the hypothetical reasonable reader might ask 'What drugs?', 'Whose money?' and 'Which one is the "Islamic boss?"', that ordinary reasonable reader is quite capable of understanding Page One Isolated to encompass a prominently photographed Dr Jneid as being a party addressed by its bold newsworthy headlines. To that extent, I would assess Page One Isolated being intelligible, without requiring any further reference to extraneous material: cf John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706, 726; R v Slaney (1832) 5 Car & P 212; 172 ER 944; Buckingham v Murray (1825) 2 Car & P 46; 172 ER 22.
146 As I assess matters, of course provisionally at this stage, the Adshead Pointer at Page One does not display anything to render an ordinary reasonable reader upon notice of a forthcoming Page Ten 'antidote' against the reputational 'bane' delivered under what are prominent, even sensationalist, headlines seen upon Page One. That there may be more material upon this subject to be found further into this edition of the newspaper does not carry any necessary conclusion that the 'more' will necessarily be exculpatory, as regards Dr Jneid. I accept senior counsel for Dr Jneid's persuasive submission that it would be perfectly open to the ordinary reasonable reader to infer that whatever additional material there may be found at Page Ten of this edition of the newspaper, that this would likely tend to support, or at least be broadly consistent with, what is conveyed from Page One Isolated.
147 For these reasons, my view is that the extent to which the ordinary reasonable reader of Page One Isolated might be expected to have 'suspended judgment' at that point, raises what is essentially a factual question for the trial. Page One Isolated and Page Ten do contain 'direct references … internally one to the other'. That linkage might in the end lead a jury of fact to a conclusion that the reader 'might reasonably be expected' to take the two together. But that possible trial outcome will not get the Newspaper across the line at the interlocutory stage. The Newspaper has not shown at this point that Dr Jneid's pleading of Page One Isolated as a stand-alone publication, is untenable: cf Obeid [66] (Tobias JA).
148 Although a jury could take a view that Page One Isolated and Page Ten together constitute the whole of a context in which the meaning of Page One Isolated is to be understood by a body of ordinary reasonable readers, in my view, Page One Isolated is also arguably capable, by itself, of constituting the whole of the context from which that body of ordinary reasonable readers would be concerned to determine a meaning from what is written and shown there, assessed alone: cf Obeid [69] - [70]; Leighton v Garnham [2012] WASC 314 [52] - [53], [79] - [80].
149 To conclude, I will briefly record my views on two subsidiary issues. First, I did not detect from the Newspaper any contention that it would be prejudiced in its defence by Dr Jneid's pleas concerning two publications, as currently complained of.
150 Second, it is unclear at this relatively early interlocutory stage of the action how Dr Jneid would propose to pursue his so-called Poster case at trial, in terms of proving the extent of a discrete mode of this alleged publication and then any damage arising. For instance, some cases would suggest that true posters or billboards published with density and duration in areas where a community leader is likely to be well known, can cause more severe reputational damage than an issue of a newspaper, or other periodical: see, eg Huynh v Tang (2003) 2 DCLR (NSW) 321.
151 It may be that the body of ordinary reasonable readers who saw Page One Isolated, but not Page Ten, would be 'significant but relatively small', rather than 'large and numerous': cf Obeid [71]. It may also be that, depending on how the content of Page Ten is ultimately assessed by a jury, that its existence would support a proposition that to the class of reader who had read both Page One Isolated but then, the Article as a whole, the damage to Dr Jneid's reputation may be reduced: McFarlane [13].
152 Nevertheless, par 5 of the ASOC must stand. It should not be struck out as failing to disclose an arguable cause of action, or as embarrassing.
Does Page One Isolated arguably convey the ASOC par 6 imputation that Dr Jneid was a member of an organised crime syndicate which engages in trafficking drugs?
153 Approaching this issue, it is of course important to avoid deconstructing Page One Isolated as a lawyer would, particularly bearing in mind the circumstances of its publication, discussed above.
154 Nevertheless, I would observe that to draw out Dr Jneid's Chase level one imputation, the ordinary reasonable reader essentially has to reach a conclusion as to at least three matters:
(1) there is an organised crime syndicate;
(2) the syndicate traffics drugs; and
(3) Dr Jneid is a part of the syndicate.
155 I would not consider that the omission of Page One Isolated to use the word 'syndicate' as determinative. The question is what is the essence of the 'sting' of this publication. A 'syndicate', as I assess it, is essentially a term for a group of individuals, acting in concert. Relative to words with a similar but slightly distinct meaning, it may be that the word 'syndicate' tends to connote a permanency, a division of labour, a hierarchy and an overall financial motivation. But hair-splitting is presently best left to one side: see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 137.
156 The arguable existence of a syndicate is, in my opinion, capable of emerging from at least the following:
(a) Use of the words 'guns, drugs and money'. Guns and drugs, for obvious reasons, are commonly associated with organised crime. Wrapping up that phrase with 'money' and hence a possible suggestion of an underlying enterprise involving guns and drugs, supports an arguable inference of organised crime activity.
(b) Reference to multiple individuals – an 'Islamic boss and brothers' - and to their being implicated in connection with the 'guns, drugs and money'. That is self evident.
(c) Use of the words 'organised crime probe'. The nature of organised crime is unlikely to be taken to mean isolated individuals acting alone. The words themselves tend to suggest there is a group of persons, all acting in concert.
157 That being the case, the meaning as to a trafficking in drugs emerges legitimately from the express reference to drugs, also again, to the mention of organised crime, which to the knowledge of the ordinary reasonable reader can involve the illicit manufacture and sale of drugs.
158 Concerning Dr Jneid being a part of this crime syndicate, that meaning too is arguably capable of being drawn from Page One, in my view. Dr Jneid is pictured very prominently, as well as being expressly named by words on the front page. Without necessarily knowing if Dr Jneid is the 'Islamic boss', or one of the 'brothers', an ordinary reasonable reader at that point could certainly take Dr Jneid to be one of the persons that is 'implicated'. Significantly, Dr Jneid's photograph is given the same prominence as that of his brother, Ziad, on the front page.
159 The Newspaper properly draws my attention to a need for a cautious approach to an assessment as to a level of asserted criminality, as offered by Lord Devlin at 286 in Lewis. Nevertheless, that needs to be read in the context of other parts of his Lordship's reasons in Lewis, including at 285:
It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.
In the libel that the House has to consider there is, however, no mention of suspicion at all. What is said is simply that the plaintiff's affairs are being inquired into.
…
But a statement that an inquiry is on foot may go further and may positively convey the impression that there are grounds for the inquiry, that is, that there is something to suspect. Just as a bare statement of suspicion may convey the impression that there are grounds for belief in guilt, so a bare statement of the fact of an inquiry may convey the impression that there are grounds for suspicion.
160 In Lewis, where the action had proceeded to jury trial, four (of five) members of the House allowed two appeals, on the basis that the newspaper reports of there being an investigation by the City of London Fraud Office into the affairs of Mr Lewis and his company, Rubber Improvements Ltd, would not support the level of a defamatory imputation as to guilt, as regards fraudulent conduct. Nevertheless, in Lewis, the House was dealing with underlying facts in which there had been merely a 'bare statement' of the existence of an 'inquiry' by the City of London Fraud Office, to use Lord Devlin's terminology.
161 Invoking Lewis, the Newspaper submits here that Page One Isolated falls into the same category of being a mere report as to the existence of an inquiry class of case. But here, I would not accept at the interlocutory level, that the chosen terminology towards someone named and prominently photographed as being 'implicated in [a] probe', is arguably incapable of being read as meaning guilty. Context, of course, is everything. Here, there is undeniably a significant amount of 'smoke'.
162 As a matter of ordinary English meaning, to 'implicate' means, amongst other things '[t]o involve (a person) in a charge, crime, etc; to bring into actual connection with; to show to be concerned': Oxford English Dictionary (online). This was preceded by the rolled-up, somewhat sensationalist headline words 'GUNS, DRUGS AND MONEY'.
163 At the interlocutory level, in my view, an ordinary reasonable reader could arguably understand Page One Isolated to mean that a 'probe' had shown Dr Jneid to be concerned in, along with other persons, an organised crime syndicate that engages in the trafficking of drugs.
Can the Article (Pages One and Ten) arguably convey the imputation that Dr Jneid was a member of an organised crime syndicate which engages in trafficking large quantities of methylamphetamine?
164 I would repeat what I have said earlier about the evaluation of an alleged defamatory publication being a matter of overall general impression. Nevertheless, it is useful to note Dr Jneid's alternative pleaded imputation as regards the whole Article (ie, pages one and ten together) subdivides to essentially the same three issues - with the key meaning distinction now being that the 'syndicate' is said to traffic not just drugs but, more specifically, it engages in trafficking, 'large quantities of methylamphetamine'.
165 The ordinary reasonable reader is taken to read a headline, followed by the text, in that order. But defamation cases uniformly support a view that while a prominent headline and accompanying text will have to be read together, that the constituent components will not necessarily be afforded an equal weight: see particularly Charleston v News Group Newspapers Ltd [1995] 2 AC 65, 72 (Lord Bridge of Harwich), 74 (Lord Nicholls of Birkenhead).
166 It has been said that to cure the bane effect against character or reputation of an accusatory headline, the remainder of the article must provide a stronger antidote than simply recording a plaintiff's denial of their guilt: see Farquhar v Bottom [1980] 2 NSWLR 380, 387 - 388; Mark v Associated Newspapers Ltd [2002] EWCA Civ 772; [2002] EMLR 38 [42] (Simon Brown LJ). In Jameel v Times Newspapers Ltd [2004] EWCA Civ 983; [2004] EMLR 31, Sedley LJ observed it was not enough for an article to contain 'significant material capable of dispelling' a defamatory imputation. Further, it would have to be 'so unequivocally presented as to constitute an incontestable antidote for whatever poison a jury may detect' [20].
167 What I have observed earlier concerning the arguable interpretation of what is found at Page One Isolated, follows again, as Page One must be evaluated as the first part of the Article. I will not repeat, but simply note, that Page One should be borne in mind in proceeding to consider the 'seeds' already sown in a reasonable reader's mind, before that reader reaches Page Ten.
168 Towards Page Ten, the argument of the Newspaper essentially accepts the ordinary reasonable reader, at least as regards Dr Jneid, would view Page Ten as something of a 'letdown' (ts 48 - 54). This, it is said, would then assuage any notions that Dr Jneid had actually done anything untowards, other than fail to secure his firearm within a properly secured cabinet. This submission was based, at least in part, on the rejected argument discussed earlier, that to give rise to 'fire', any 'smoke' basically had to emerge from some underlying, published circumstantial facts, evidence of which could be admissibly tendered at a trial of the criminal charge (ts 51 - 52).
169 But, as earlier discussed, I do not accept that the ordinary reasonable reader will draw inferences only from such a circumscribed category of underlying material in a publication. Naturally, the question must always be ultimately resolved by reference to the content of the publication as a whole. But as a matter of common sense, ordinary readers do not necessarily limit themselves to evidence admissible in a trial, or use linear chains of reasoning towards inferring guilt. Common law jurisprudence in defamation contains no reference to a man on the Clapham omnibus sitting next to a barrister from the Outer Temple who reminds the man to keep forever in mind a 'Golden Rule' and who provides a running commentary upon what is or is not proper admissible evidence towards the inferring guilt at a criminal trial. There is good reason - the ordinary reasonable reader does not construe published or spoken words in the same way as a lawyer.
170 A newspaper report touching upon matters bearing upon motive, opportunity, or consciousness of guilt (lies, flight, concealment, or so forth) could all lead to the ordinary reasonable reader inferring that the subject of a report about criminal conduct, is actually guilty. Here, the Newspaper placed a considerable reliance on Favell. But my earlier scrutiny of the facts underlying that decision would suggest that one does not need to detect all that much billowing 'smoke', in order to legitimately infer that there is an underlying 'fire'.
171 Here, I do not understand the Newspaper to dispute that Page Ten imputes an existence of a 'syndicate' and its engagement in the trafficking of large quanities of methylamphetamine. The real point of contention is whether the ordinary reasonable reader might arguably understand Page Ten, assessed in combination with Page One, to convey the meaning that Dr Jneid is a part of the syndicate. On my assessment, that conclusion is arguably open.
172 Viewing Page Ten, a reader is immediately confronted by the headline and sub-headline 'CRIME SYNDICATE RAIDS - ISLAMIC CHIEF FIREARMS CHARGE'. It was argued by counsel for the Newspaper that the body of the text at Page Ten expressly refers only to a single raid. However, that is not the terminology of the headline ('RAIDS', plural) which rather suggests that there has been a series of raids, to be discussed, and all in relation to the 'crime syndicate'.
173 This impression is entrenched by the sub-headline, which suggests that a firearms charge against some as yet unspecified senior or leading Islamic figure, to be elaborated on, has been laid in connection with the raids (plural) against the crime syndicate.
174 That reputational bane is then entrenched under the first paragraph of the text of Page Ten. The opening paragraph does not distinguish between various charges, or between the various accused or participant persons. The first paragraph instead rolls together a soon-to-be-mentioned firearms charge against Dr Jneid into the omnibus statement that 4 kg of methylamphetamine and hundreds of thousands of dollars in cash had been seized, again as part of a number of raids.
175 Counsel for the Newspaper accepted, concerning Dr Jneid, that something of a 'let down' is suffered as one reads on at Page Ten, to learn Dr Jneid has been charged with failing to properly secure a firearm cabinet. The circumstances of that alleged offence, as they emerged in written submissions (rather than from the Article itself) were that Dr Jneid's lawfully possessed firearm was stored in a gun safe (cabinet), but the cabinet was not apparently, properly bolted to a wall, as was required. This transgression falls considerably below showing any sort of a platform to fairly suggest Dr Jneid's involvement in an illicit methylamphetamine trafficking operation.
176 The ordinary reasonable reader might in the end ultimately assess, that by reason of what is not otherwise said concerning Dr Jneid after reading Page Ten, little has otherwise emerged against Dr Jneid to suggest him to be personally concerned in the organised crime syndicate (but which from what is written presumably does involve his brothers).
177 But at the interlocutory stage, I am not satisfied the Article is to unarguably be read in a benign fashion concerning Dr Jneid, for a number of reasons.
178 First, the headline, sub-headline and early part of the text seen on Page Ten, contain a significant amount of 'smoke'. This may set an ordinary reasonable reader up to infer, at least arguably, that the firearms charge against Dr Jneid is, in some important way, connected to the activities of an organised crime syndicate.
179 Second, there followed at Page Ten a description of Dr Jneid's business connections with his two brothers, who are each stated to have been charged with drugs offences. An ordinary reasonable reader of the Article, as in Favell, may well wonder why these apparently irrelevant facts (as regards Dr Jneid) are being alluded to in a news story about organised crime, if not to suggest that there is indeed some unstated or clandestine aspect to all the Jneid brothers' financial relationships.
180 Third, there is mention toward the conclusion of the Page Ten text about dozens of officers from three specialist squads of police raiding a number of properties. The ordinary reasonable reader is arguably capable of concluding that all the aforementioned raids, including the raid on Dr Jneid's home and another raid that located a vehicle containing the methylamphetamine, to have been a result of a combined police operation targeting the members of a 'syndicate'.
181 Fourth, the Newspaper seemed to accept that for the ordinary reasonable reader to understand the Article as it contends, at levels below Dr Jneid's guilty participation in criminal conduct, they would need to read to the end of the Page Ten text. At that point the reader would need to reflect back to assess an absence of any mention of drugs charges against Dr Jneid, or of anything else otherwise directly inculpating him in drug trafficking. Then, by a process of deductive reasoning, that ordinary reader would be left to conclude, so it is put, that by virtue of what is left unsaid, that Dr Jneid is not to be assessed as being guilty of being involved in drug-related criminal activities.
182 In evaluating the likelihood of that sort of reflective reasoning, it is important to bear in mind that the ordinary reasonable reader would read the whole of the matter complained of - once. That ordinary reasonable reader may be capable of understanding the Article, in the terms argued for the Newspaper. But, to assert at this interlocutory stage that they could never reach an imputation as to Dr Jneid's guilty participation in a criminal enterprise involving drugs, takes the submission too far at this stage. The submission assumes the ordinary reasonable reader traverses through a newspaper in the same way a lawyer deconstructs a witness statement, or a video record of interview. But ordinary persons reading a newspaper do not approach the print media predisposed to seeking out and detecting logical flaws. They read between the lines and draw inferences, particularly pejorative inferences, where reasonably open.
183 With the present levels of 'smoke' across Pages One and Ten, it is reasonably arguable that they may detect an underlying 'fire' here, as regards Dr Jneid.
184 Dr Jneid's imputations therefore survive all challenges.
Dispositive orders and costs
185 Dr Jneid has succeeded in defeating the Newspaper's strike out application in all respects. He should prima facie receive his costs of the application where, given the gravity of the challenges to his case, and its implications, he was properly represented by senior counsel. The duration, sophistication and complexity of the arguments submitted, in a specialist area of practice, prima facie support the lifting and removal of Scale allowance limits on any taxation of costs favouring the successful party on this application.
186 The parties should now confer with a view to Dr Jneid's solicitors filing a minute of proposed orders giving effect to these reasons within 14 days. To the extent that those orders cannot be agreed, I would propose to resolve any residual disputation on the papers by a receipt of written submissions exchanged sequentially.
SCHEDULE A
SCHEDULE B
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31
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