John Fairfax Publications Pty Ltd v Jones - [2004] NSWCA 205

NEW SOUTH WALES COURT OF APPEAL

CITATION: John Fairfax Publications Pty. Limited & Anor. v. Jones [2004] NSWCA 205

FILE NUMBER(S):
40055/03
40056/03

HEARING DATE(S): 13 April 2004

JUDGMENT DATE: 22/06/2004

PARTIES:
John Fairfax Publications Pty. Limited - 1st appellant
David Lessr - 2nd appellant
Alan Bedford Jones - respondent

JUDGMENT OF: Spigelman CJ Hodgson JA Ipp JA

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S): SC20340/99

LOWER COURT JUDICIAL OFFICER: Levine J

COUNSEL:
Mr. S. Rares SC with Mr. K. Smark for appellants
Mr. T.D. Blackburn SC with Miss K. Richardson for respondents

SOLICITORS:
Freehills, Sydney for appellants
Blake Dawson Waldron, Sydney for respondents

CATCHWORDS:
DEFAMATION - Defences - Contextual imputation - Whether capable of being carried - Whether "another imputation" - Whether "swamps" plaintiff's imputation - Maisel and Polly Peck defences - Aggravated damages - What particulars required.

LEGISLATION CITED:
Defamation Act 1974 s.16

DECISION:
1. In CA40055 of 2003 (concerning aggravated damages), leave to appeal refused with costs. 2. In CA40056 of 2003 (concerning contextual imputations and other defences: (a) Leave to appeal granted. (b) Notice of Appeal to be filed within 14 days. (c) Appeal allowed in part. (d) Order 1-6 below set aside. (e) In lieu thereof, paragraphs 4 and 6(a)(2)-(6) of the defence are struck out. 3. Leave to both parties to make written submissions concerning costs within 7 days, any reply to be provided within a further 7 days.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40055/03
CA 40056/03
SC 20340/99
SPIGELMAN CJ
HODGSON JA
IPP JA
Tuesday 22 June 2004

JOHN FAIRFAX PUBLICATIONS PTY. LTD. & ANOR. V. JONES
JOHN FAIRFAX PUBLICATIONS PTY. LTD. & ANOR. V. JONES

Judgment

SPIGELMAN CJ: I have had the advantage of reading the judgment of Hodgson JA in draft. Subject to the following observations I agree with his Honour.
As to the first contextual imputation on which the Claimant seeks to rely, Levine J held that the matter complained of was confined to the arrangement with the AMP. Hodgson JA distinguishes between an imputation in the form he “acted dishonestly as a broadcaster in that”, which may be so confined and the imputation found by the jury that he “is a dishonest broadcaster in that”. The latter, Hodgson JA concludes, involved an act “indicative of his character” and, accordingly, could carry the contextual imputation.
Hodgson JA is also of the view that an inference as to the character of the Opponent arises from “the linking of the allegation, with allegation of related conduct said to have been engaged in by John Laws”. On this alternative basis, the broader imputation is said to arise.
I note that the Opponent did not put a submission that the Claimant’s first contextual imputation constituted an inference on an inference, as distinct from an implication. (Cf Lewis v Daily Telegraph [1964] AC 234 at 274, 286; Allen v John Fairfax & Sons Ltd New South Wales Supreme Court (unreported) 2 December 1988, Hunt J at 13-14.)
It is convenient to deal first with Hodgson JA’s alternative finding that the matter in the box supports the broader imputation. His Honour described the conduct concerning Mr Laws as “related conduct”.
The conclusion that the two matters are “related” must depend on the linkage suggested by the words “$1.2 million deal for favourable treatment”, referring to Mr Laws, and the words “another corporate deal”, referring to the body of the article about Mr Jones. The word “another” in this context is capable of referring to a “corporate deal” of the same general character, i.e. a “deal for favourable treatment”. However, it does not, in my opinion, extend the imputation into a general allegation of dishonesty beyond the specific matter identified.
The first basis on which Hodgson JA would uphold the appeal raises an issue with important practical implications for the operation of defamation law. The Claimant’s case would strike a new balance in the continual challenge of reconciling freedom of speech and the right of individuals to protect their reputation. Where a plaintiff asserts that his character has been impugned by an allegation that he engaged in specific conduct, can a defendant establish that the plaintiff does have the relevant character defect by reason of conduct other than that referred to in the matter complained of?
In New South Wales this issue arises in the specific context of s16 of the Defamation Act 1974 entitling the defendant to rely on a contextual imputation of substantial truth and of specified force.
A plaintiff who pleads an imputation of, relevantly, general dishonesty not restricted to the conduct set out in the matter complained of, exposes himself or herself to a defence of justification not restricted to the specific conduct. (Maisel v Financial Times Ltd (1915) 112 LT 953.) The Claimant’s submissions in the present case would mean that no plaintiff can escape that fate by pleading a narrow imputation.
In New South Wales, by s9 of the Defamation Act, the imputation is the cause of action. It is not open to a defendant to reinterpret the plaintiff’s imputation and thereby reformulate the plaintiff’s cause of action. The reasoning of Hodgson JA would lead to the result that a plaintiff who pleads an imputation in the form of a condition attributed to the plaintiff, as distinct from an act attributed to the plaintiff, would not be able to avoid the Maisel trap whenever the elements of s16 of the Act are made out.
In Allen v John Fairfax, supra, Hunt J said at 10:
“If the matter complained of conveys to the same ordinary reasonable reader two imputations at the same time, one of a general nature … and another of a specific nature which, even although related to the same subject matter of the general imputation, differs in substance from it, the policy behind s16 requires the defendant be permitted to plead the former as a contextual imputation to the plaintiff’s cause of action based on the latter.”
His Honour went on to note at 12:
“The real questions in each such case in relation to each particular contextual imputation are whether that contextual imputation is conveyed to the same ordinary reasonable reader at the same time as and in addition to the plaintiff’s imputation and whether they differ in substance one from the other.”
His Honour had earlier said at 7:
“Unless both imputations are conveyed at the same time to the same ordinary reasonable reader, the jury will be unable to weight or to measure the relative worth or value of the several imputations contended for by both parties.”
(Jackson v John Fairfax & Sons Ltd (1981) 1 NSWLR 30 at 40. See also Hepburn v TCN Channel Nine Pty Ltd (1984) 1 NSWLR 386 at 400 and Waterhouse v Hickie (1995) Aust Tort Reports 81-347 at 62,488 per Priestley JA.)
The difficulty that arises in the present circumstances is that the two imputations are the same save that one is restricted to particular conduct. As Gleeson CJ noted in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137:
“Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology.”
The background history of s16 is set out by Priestley JA in Waterhouse v Hickie supra at 61,490. It does appear that the defect in the common law position was identified in circumstances where the two imputations were of a different character, rather than different levels of generality of the same allegation, e.g. the allegation of murder, theft and failure to attend church referred to in Plato Films Ltd v Speidel [1961] AC 1090 at 1142. This concern is reflected in the word “another”, where appearing in the clause “another imputation is made by the same publication” in s16(1).
In my opinion, the words “another imputation” are not satisfied where a defendant relies on a contextual imputation which is, in substance, nothing more than an alternative way of formulating the same imputation relied on by the plaintiff, based on exactly the same words in the matter complained of and applying those words in exactly the same way. Such is not a case where, to use Hunt J’s formulation, the contextual imputation is “capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff’s imputation”. (Allen v John Fairfax supra and Hepburn v TCN Channel Nine supra.)
In the present case only one factual matter is said to constitute the basis of an imputation that the Opponent has a dishonest character. There is no suggestion that relevant conduct occurred on any other occasion. In such circumstances, in my opinion, an imputation that the person is of a particular character without express reference to that factual matter is not capable of being conveyed “in addition to” an imputation which makes such reference. It is merely an alternative way of formulating the same imputation.
The issue is the proper construction of the words “another imputation” in s16. The Claimant submits that its first contextual imputation is such and invokes authorities from cognate but quite distinct aspects of defamation law.
It may well be that the imputation found by the jury differs in substance from the contextual imputation. Plainly, the Claimant is correct to submit that a single publication may convey two or more imputations of different degrees of seriousness. It is also correct to say that what may be proved by way of justification of the imputation found by the jury differs from what may be proved by way of justification of the contextual imputation. None of this determines the proper meaning of the words in s16. Whether or not an imputation is a permissible alternative if pleaded by a plaintiff does not mean it is “another” imputation for purposes of the s16 defence. The test for plaintiff’s imputations – differ in substance – is a necessary but not sufficient test for ‘another’ imputation, which requires a difference in kind.
In my opinion, the purpose of s16 was directed to a situation in which the same publication conveyed imputations which differ in their character, not merely a different way of formulating the same imputation at a higher level of generality. The examples outlined in Plato Films supra are the former. The contextual imputations in issue here are the latter.
Each of the other contextual imputations suffers from the same defect, in addition to those identified by Hodgson JA.
As to the interstate defences, I do not accept that the imputation found by the jury is separate and distinct from, but containing a common sting as, other imputations on which the Claimant seeks to rely. The matter complained of did not travel beyond the specific example.
In my opinion, leave to appeal in CA 40056 of 2003 should be granted but the appeal should be dismissed with costs. I agree that leave to appeal in CA 40055 of 2003 should be refused with costs.
HODGSON JA: On 18 December 2002, Levine J dismissed an application by the defendants (the claimants before this Court) to strike out a claim for aggravated damages made by the plaintiff (the opponent in this Court) and particulars given in support of that claim; and also struck out certain paragraphs and particulars of the defendants’ defence to the plaintiff’s claim for damages for defamation. The defendants seek leave to appeal from each of those decisions. The applications for leave have been argued on the basis that, if leave is granted, the appeals will be determined without further argument.
CIRCUMSTANCES
The proceedings arise out of the publication in the Sydney Morning Herald newspaper on 20 July 1999 of an article headline “Nightmare on Struggle Street for former AMP boss”. This article commenced on the front page of the newspaper, and just below the headline was a box containing sketches of the plaintiff and of John Laws, with the following words:
As the banks were deciding yesterday to terminate their $1.2 million deal for favourable treatment from John Laws, details emerged of another corporate deal involving Law's radio colleague, Alan Jones. DAVID LESER reports.
The article itself then proceeded on the front page of the newspaper as follows:
The former chief executive of the AMP turned a blind eye to a secret deal between the company and the broadcaster Alan Jones in the early 1990s in which it agreed to a $7 million debt refinancing scheme for South Sydney Leagues Club, of which Jones was then director of football.
Mr Ian Salmon believed the deal was designed to stop Jones's damaging on-air attacks on the AMP but said he made "an absolute point of not knowing ... because sometimes it is best if things are taken out of your hands".
"If anyone wanted to do the talking [to Jones] behind the scenes I didn't want to know".
There is no suggestion that Jones benefited personally from the arrangement.
Mr Salmon told the Herald that Jones, the 2UE personality, had attacked the AMP and himself "mercilessly" over a sustained period in 1992 and 1993 but that suddenly the attacks seemed to stop.
"I suspect they stopped because somebody - and it certainly wasn't me - was persuaded to provide some support for something he was interested in".
Asked why, as chief executive, he did not know the nature of the support, he said: "I can't be more specific because I deliberately went out of the way to not discover what was happening ... I knew that one of these days he would go too far. At that stage some of our people thought he [already] had.”
In late 1992, Jones launched a campaign of sustained criticism against the AMP Society because of its decision to sell a slice of its shareholding in Arnott's Biscuits to the United States company Campbell Soups.
He also attacked the AMP for its "nexus" with Westpac, its loans to directors, its executive salary increases (including Salmon's) and what Jones described as its disregard for the views of its 2 million policy-holders.
The AMP responded by signing up Jones's now-beleaguered stablemate, John Laws, to do a series of advertisements endorsing the society.
Laws is fighting for his professional life over the $1.2 million deal in which he agreed to stop criticising the banks. The arrangement, which was terminated last night by the banks, is the subject of at least six inquiries (Full report, Page 4).
Mr Salmon, who was AMP chief executive from late 1990 to 1994, said Jones's attacks on the society and him were so damaging that he was forced to employ security guards at his home.
"We had threats. We had a bullet through the post [and a message] saying this is for you next. That wasn't him [Jones] but [his comments] stirred people's emotions. He should have known better."
Mr Salmon said the AMP chairman, Mr Ian Burgess, was the only person who could have authorised any arrangement with Jones because he [Salmon] didn't want to be party to such a deal.
Mr Burgess yesterday confirmed weekend reports that support for Jones had come in the form of investing in South Sydney Leagues Club. The AMP
The article then continued on page 4 of the newspaper under the heading “AMP man’s nightmare on Struggle Street”, as follows:
had refinanced the club's debt. According to a company statement, "the refinancing arrangement ... was assessed on commercial terms, was priced accordingly and continues to be a high-yielding investment today for AMP.
Mr Burgess said yesterday that he had authorised the deal. "The essence of it was that the AMP wanted to do something for so-called Struggle Street - that was the Jones term and I think I talked to Kerry Packer [a friend of Jones's] and he defined Struggle Street as the South Sydney Rugby League Club, which he [Packer] was helping a lot," he said. "AMP subsequently invested in it and it was a successful commercial venture ... never at any time was it suggested or hinted that the money would go to Alan Jones."
Mr Burgess suggested that the AMP would never have been in this position in the first place had it not been for Mr Salmon's inability to defend the company and himself against Jones's attacks.
"It all arose through Ian Salmon's stupidity - his incapacity to answer questions about his salary," he said. "There were a whole lot of things he couldn't deal with on air with Jones, and Jones was attacking Salmon for a long time. I got concerned because it started to become a cause celebre, and it was resolved very satisfactorily by doing something for Struggle Street."
Mr Salmon admitted that his interview with Jones had not gone well, but rejected claims of stupidity. "I would like to take issue with him on that. You have to face the fact that when you do an interview with these guys they own the station."
Mr Salmon said Jones, who was unable to return the Herald's calls yesterday, would never have been able to strike a deal with him but he said he understood the pressures on the company to come to some arrangement.
The plaintiff sued the defendants in defamation in respect of this article; and in February 2000, a jury found that it carried the following imputation defamatory of the plaintiff:
The plaintiff was a dishonest broadcaster, in that he secretly agreed with the AMP Society that he would cease to criticise the AMP Society on air in return for the AMP Society agreeing to provide a substantial benefit to the South Sydney Rugby League Club of which he was Director of Football.
The plaintiff then filed an Amended Statement of Claim, which included a claim for aggravated damages. He gave the following particulars of the facts and matters on which he relied to establish that claim, as follows:
(a)The conduct of the defendants in publishing the matter complained of knowing that the plaintiff claimed it was false;
(b)The failure of the defendants to apologise for the publication of the defamatory matter,
(c)The publication by the first defendant of the following articles, prior to publication, each of which compounded the impression made by the matter complained of.
The plaintiff then particularised seven publications by the first defendant between 16 July and 18 July 1999; and then went on to particularise 20 publications between 22 July 1999 and 10 December 1999.
On 18 March 2002, the defendants filed a Defence to the plaintiff’s Amended Statement of Claim. Paragraphs 4 and 6-10 of that Defence were as follows:
4             In further and alternative answer to paragraph 5 of the Statement of Claim, to the extent that the matter complained of was published in New South Wales, the defendants say that:
(a)the matter complained of in its natural and ordinary meaning conveyed the following imputations of and concerning the plaintiff ("the defendants' imputations”):
(1)the plaintiff was a dishonest broadcaster;
(2)the plaintiff was a dishonest broadcaster in that he betrayed his audience's trust in the integrity of his favourable on-air treatment of a company, by keeping secret an arrangement with that company under which a substantial benefit was provided as he directed;
(3)the plaintiff was a dishonest broadcaster in that he kept secret an arrangement with a company under which a substantial benefit was provided as he directed, which arrangement was calculated to influence the way in which he treated that company on air,
(4)the plaintiff betrayed his audience by secretly directing payment from an undisclosed source to influence his on-air conduct for the benefit of that source;
(5)the plaintiff abused his position as a broadcaster by failing to disclose to his audience the existence of a commercial arrangement which he knew his listeners might regard as likely to influence his on-air conduct;
(6)the plaintiff was a misleading and deceptive broadcaster in that he intentionally concealed relevant facts from his audience;
(b)each of the defendants' imputations:
(1)is a matter of substantial truth;
(2)relates to a matter or matters of public interest; and/or
(3)was published under qualified privilege;
(c)by reason that the defendants' imputations, and each of them, is a matter of substantial truth, the plaintiffs imputation does not further injure the reputation of the plaintiff.
…
6             In further and alternative answer to paragraph 5 of the Statement of Claim, in respect of the publication of the matter complained of in Victoria, Western Australia, South Australia and the Northern Territory:
(a)the matter complained of, in its natural and ordinary meaning, meant and was understood to mean:
(1)the plaintiff was a dishonest broadcaster;
(2)the plaintiff was a dishonest broadcaster in that he betrayed his audience's trust in the integrity of his favourable on-air treatment of a company, by keeping secret an arrangement with that company under which a substantial benefit was provided as he directed;
(3)the plaintiff was a dishonest broadcaster in that he kept secret an arrangement with a company under which a substantial benefit was provided as he directed, which arrangement was calculated to influence the way in which he treated that company on air,
(4)the plaintiff betrayed his audience by secretly directing payment from an undisclosed source to influence his on-air conduct for the benefit of that source;
(5)the plaintiff abused his position as a broadcaster by failing to disclose to his audience the existence of a commercial arrangement which he knew his listeners might regard as likely to influence his on air conduct;
(6)the plaintiff was a misleading and deceptive broadcaster in that he intentionally concealed relevant facts from his audience ("the defendants' imputations”).
(b)the defendants' imputations were true in substance and in fact;
(c)the defendants' imputations were not separate or distinct from the plaintiffs imputation;
(d)to the extent to which the defendants prove the truth of any of the defendants' imputations, the matter complained of and/or the plaintiffs imputation was true in substance and in fact;
(e)further and in the alternative:
(1)the matter complained of in its natural and ordinary meaning, contained the following sting of and concerning the plaintiff
the plaintiff was a dishonest broadcaster;
(2)such sting (sting) was true in substance and in fact,
(3)the plaintiffs imputation and the defendants' imputations are not separate or distinct from such sting;
(4)alternatively, such sting is common to the plaintiff's imputation and the defendants' imputations;
(5)by reason of the truth of such sting, the matter complained of was true in substance and in fact; and
(f)further, and in the alternative, by virtue of the substantial truth of the defendants' imputations and/or the sting, the plaintiffs reputation was not further injured by the plaintiffs imputation or the matter complained of.
7             Further and in the alternative, in respect of the publication of the matter complained of in Queensland, Tasmania and the Australian Capital Territory.
(a)The defendants repeat paragraphs 6(a), 6(b) 6(c), 6(d), 6(e) and 6(f) above;
(b)the publication of each of the defendants' imputations, the sting and of the matter complained of was for the public benefit
8             Further and in the alternative, in respect of the publication of the matter complained of in Tasmania:
(a)The defendants repeat the matters pleaded in paragraphs 6(a), 6 (b) 6(c), 6(d), 6(e) and 6(f) above;
(b)The plaintiff’s reputation was not materially injured by the plaintiffs imputation having regard to the truth of any or all of the defendants' imputations, and/or the sting, and/or the matter complained of.
9             Further and in the alternative, in respect of the publication of the matter complained of in Queensland, the matter complained of was published in good faith:
(a)for the purpose of giving information to the persons to whom it was made with respect to subjects as to which those persons had, or were believed, on reasonable grounds, by the defendants to have had, such an interest in knowing the truth as to make the defendants' conduct reasonable under the circumstances; and
(b)further and in the alternative, in the course of, or for the purposes of, the discussion of subjects of public interest, the public discussion of which was for the public benefit and, insofar as the report consisted of comment, the comment was fair.
10           Further and in the alternative, in respect of the publication of the matter complained of in Tasmania:
(a)the matter complained of was published in good faith for the purpose of giving information to the persons to whom it was made with respect to subjects as to which those persons had, or were believed, on reasonable grounds, by the defendants to have had, such an interest in knowing the truth as to make the defendants' conduct reasonable under the circumstances; and
(b)further and in the alternative, the matter complained of was published in good faith in the course of, or for the purposes of the discussion of subjects of public interest, the public discussion of which was for the public benefit.

The defendants gave the following particulars of the facts, matters and circumstances relied on to establish the substantial truth of the defendants’ imputations:
1             The plaintiff entered into agreements, arrangements or understandings ("sponsorships”) with a number of companies ("sponsors") whereby be agreed to provide a range of services, in return for the payment of substantial benefits to him or at his direction.
2             The sponsors included:
(a)          Optus Administration Pty Limited ("Optus");
(b)          Walsh Bay Finance Pty Limited ("Walsh Bay Finance”);
(c)          Colonial State Bank ("the State Bank");
(d)          QANTAS Airways Limited ("QANTAS”);
3             Substantial payments ("sponsorship payments") were made to the plaintiff or at his direction by the sponsors pursuant to the sponsorships.
4             As a result of having entered into the sponsorship agreements, the plaintiff changed his on-air conduct in favour of the sponsors, in the following respects:
…
5             Further, at no time during any of the broadcasts particularised in paragraph 4 above did the plaintiff disclose the existence of the sponsorship agreements or the fact of the sponsorship payments.
Paragraph 4 set out 29 instances of broadcasts said to be favourable to one or other of the companies specified in paragraph 2 of these particulars.
The Defence also gave particulars of mitigation of damages, including “the truth or substantial truth of the defendants’ imputations”.
On 14 December 2001, the defendants gave notice under Supreme Court Rules Pt.67 r.12A by which in substance they applied to strike out the plaintiff’s claim for aggravated damages and the particulars given in support of that claim. The notice referred to correspondence in which the defendants had sought particulars, and noted that the plaintiff had responded inter alia that the articles relied on were written as part of a campaign to denigrate the plaintiff. The notice went on the deal with three areas of disagreement:
(a)Whether the plaintiff has given adequate particulars of an alleged "campaign of denigration";
(b)Whether the plaintiff is obliged to identify the meanings which he asserts are borne by the additional articles;
(c)Whether various particulars provided by the plaintiff are objectionable.
The notice concluded as follows:
39 Further, it is submitted that the range and scale of the allegations made (at least in the absence of full and proper particularisation) is oppressive to the first defendant. Such allegations, made under the guise of aggravation, place a burden upon the first defendant of grappling with the substance of each article, the range of meanings each might bear, the factual background to the creation of each article in light of such meanings and the truth or otherwise of the various meanings alleged.
40 The Court has undoubted power to deal with proceedings which although not inconsistent with the literal application of its procedural rules would nevertheless be manifestly unfair to a party to the litigation: Walton v Gardiner (1993) 177 CLR 378 at 392.10 to 393.7. It is submitted that the effect of the plaintiff’s case at least as it is presently put, is to place an unacceptable burden upon the first defendant.
The questions raised by that notice were argued before the primary judge on 18 March 2002, and the decision was reserved.
On 30 May 2002, the plaintiff applied for orders, including an order that paragraphs 4, 6, 7 and 8 of the Defence and related particulars be struck out.
DECISIONS OF THE PRIMARY JUDGE
The primary decision gave his decision on both applications on 18 December 2002.
In relation to the plaintiff’s application for the orders specified above, the primary judge made those orders and gave the following reasons:
20 The test to be applied in determining the availability of a possible contextual imputation for the purposes of s16 is no different, of course, to that propounded in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, namely that of “reasonableness”.
21 On any fair and reasonable reading of the matter complained of, a conclusion safely can be reached that it is essentially quite focused in its dealing with the AMP and Mr Jones and South Sydney Leagues Club. I say this neither ignoring or notwithstanding so much of the submission for the defendants as points to the article being published in a context of banks and their dealings with Mr John Laws.
22 Any fair reading of the matter complained of will expose disparagement of the plaintiff in the context of the AMP matter.
23 The defendants’ meanings seek to encapsulate notions of “dishonesty” in a generalised sense in relation to “a company”; “betrayal” by the plaintiff of his audience and “abuse” of his position as a broadcaster, with the notion of “misleading and deceptive” (conduct) thrown in to contextual imputation (6).
24 The defendants rightly concede that whether or not an imputation arises is a matter of impression and the ordinary reasonable reader is entitled to engage in a certain amount of loose thinking. The defendants go on to say, however, that the import of this matter complained of is “clear”. It may be that certain of the meanings contended for by the defendants do not have their exact counterparts “in the denotative meaning” of the words employed. It is then argued that when one focuses on the real issues which the article addresses, there can be no question that the reader would understand it to suggest that the plaintiff had “betrayed” his audience, “abused” his position and engaged in that “deceptive and misleading” conduct.
25 As the plaintiff suggests, by looking at the contextual imputations, a strong impression is gained that they have been constructed or “tailored” with a view to extraneous matters which the defendants conceive they might have a chance of proving rather than by reference to the matter complained of itself. They are employed as a mechanism for “shoehorning” the defence into perceived parameters the Australian Broadcasting Authority inquiry as set out in the particulars; (the report of the ABA inquiry was delivered to me).
26 The defendants protest that the plaintiff cannot complain about a generalised imputation as to his dishonesty as a broadcaster when that concept, it is said, has by the plaintiff himself been made “generally” and then been specifically exemplified by reference to the AMP matter. I do not agree with the defendants’ contention that the matter complained of is “clearly not confined to” the specific instance where the plaintiff entered into a “secret deal” with the AMP and that it invites the ordinary reader to consider the general character of the plaintiff - that is, a person who would enter into a “secret deal” - in circumstances where there is a public controversy in relation to Radio Station 2UE and its affiliates and/or presenters broadcasting comments of an editorial nature for which a fee or otherwise valuable consideration was received.
27 Contextual imputations 2 to 6 are “simply not there”, that is, I hold to be incapable of being carried by the matter complained of. They are far-fetched, forced, strained and fanciful meanings.
28 As to the first contextual imputation that the plaintiff is a dishonest broadcaster, I reject that meaning; it is incapable of arising generally or more specifically as sought to be advanced by the defendants by reason of the invitation to the ordinary reasonable reader referred to, above. Such authorities as Maisel v Financial Times (1925) 112 LT 953 and MacGrath v Black (1925) 95 LJ KB 951 do not permit the defendants to run a case which those authorities sustain when there is no meaning available to found such a case.
29 The defendants’ reference to what is described as “the material in the box” (the reference to John Laws), is insufficient to found the proposition that the article is really dealing with, on a reasonable basis, generalised dishonesty on the part of this plaintiff.
In relation to the defendants’ application, the primary judge refused the relief sought by the defendants. He gave extensive reasons.
He referred inter alia to the cases of Triggell v Pheeney (1951) 82 CLR 497, Gruzman v. John Fairfax & Sons Limited, Hunt J, 28/9/81; Grubic v. Mirror Newspapers Limited, Hunt J, 7/12/84; and Warne v. Chadwell (1819) 2 Stark. 457, 171 ER 704.
The primary judge expressed the view that the last three cases mentioned did no more than establish that a defendant is entitled to defend each publication relied on in aggravation of damages. The primary judge noted the defendants’ contentions set out in pars.39 and 40 of the defendants’ notice, set out above.
In relation to the first and third components of the defendants’ complaint, the primary judge accepted the plaintiff’s submission that he had given the best particulars he could, and was not persuaded that either basis was established.
In relation to the second component, the primary judge concluded as follows:
I am equally persuaded that neither Grubic nor Gruzman nor by an appropriate extrapolation of Warne that there exists a principle in New South Wales law that where a plaintiff relies upon additional publications connected with the matter complained of in a way that asserts that they are improper, unjustifiable and lacking in good faith and thereby entitling the plaintiff to an award of aggravated compensatory damages, that there is any obligation on the plaintiff, formally or by way of particulars, to specify defamatory imputations carried by such publications, in the absence of an express assertion that such publications, linked with the matter complained of sued upon, were themselves defamatory. It is to be borne in mind that the plaintiff complains of the conduct of the defendant in publishing the articles, the conduct having the Triggell v Pheeney qualities, which is subject to scrutiny.
GROUNDS OF APPEAL
The defendants seek leave to appeal on the following grounds.
In relation to the striking out of parts of their Defence, the defendants seek to rely on the single ground that the primary judge erred in finding that the defendants’ contextual imputations were not capable of being conveyed.
In relation to the dismissal of their own application, the defendants seek to rely on the following grounds:
1His Honour erred in not striking out the Respondent's claim of aggravated damages and particulars thereof.
2In the alternative, His Honour erred in finding that the Respondent was not obliged to identify the defamatory meanings, which he asserts are borne by the publications by the First Appellant additional to the matter complained of, upon which he relies in support of a claim for aggravated damages.
3Further in the alternative His Honour erred in finding that the Respondent has given adequate particulars of the alleged “campaign of denigration”.
I propose to deal in turn with the following issues: first, issues concerning the first contextual imputation sought to be relied on by the defendants; second, issues concerning the other contextual imputations sought to be relied on by the defendants; third, issues concerning the interstate defences; and fourth, issues concerning the plaintiff’s claim for aggravated damages.
FIRST CONTEXTUAL IMPUTATION
Determination of issues concerning contextual imputations requires consideration of s.16 of the Defamation Act 1974, which is as follows:
16 Truth: contextual imputations
(1)Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.
(2)It is a defence to any imputation complained of that:
(a)the imputation relates to a matter of public interest or is published under qualified privilege,
(b)one or more imputations contextual to the imputation complained of:
(i)relate to a matter of public interest or are published under qualified privilege, and
(ii)are matters of substantial truth, and
(c)by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.
Submissions
Mr. Rares SC for the defendants submitted that the article was reasonably capable of carrying the imputation that the plaintiff was a dishonest broadcaster. Both parties were bound by the jury’s finding that it carried the imputation that he was a dishonest broadcaster in that he made the specified secret agreement with AMP; and this, together with the association of the plaintiff with John Laws, was capable of carrying an imputation going beyond dishonesty in the one particular transaction.
Mr. Blackburn SC for the plaintiff submitted that the article, and the imputation as found by the jury, imputed just one instance of dishonest conduct; whereas the defendants’ first contextual imputation required repeated dishonest conduct. The primary judge was correct to hold to the effect that the matter complained of was confined to the specific instance, and did not invite the ordinary reader to consider the general character of the plaintiff.
In the alternative, Mr. Blackburn submitted that the defendants’ first contextual imputation was not “another imputation” within s.16(1), and was incapable of satisfying the requirements of s.16(2)(c).
On the first matter, Mr. Blackburn submitted that this contextual imputation was not another imputation, because it merely excised from the plaintiff’s imputation the words indicating the premises for the imputation of dishonesty, and was not derived from any different matter or identifiably different allegation. Further if, as the defendant contended, this contextual imputation was necessarily conveyed by the plaintiff’s imputation, it could not be substantially different from the plaintiff’s imputation.
On the second matter, Mr. Blackburn submitted that, as shown by John Fairfax Publications Pty. Ltd. v. Blake (2001) 53 NSWLR 541, it was necessary to weigh the injury caused by the imputation relied on by the plaintiff against the facts, matters and circumstances relied on to establish the truth of relevant contextual imputations; and the particulars given by the defendants did not suggest dishonesty of the order of that suggested by the plaintiff’s imputation. The sting of the plaintiff’s imputation was that he dishonestly ceased to criticise AMP; and it was implicit that the imputed dishonesty consisted in ceasing to criticise, without conviction, for hush money, having nothing to do with any modification of views. On the other hand, the particulars of the defendants’ first contextual imputation did not suggest that the plaintiff ever said anything he did not believe.
Mr. Rares, in reply, formally submitted that the decision in Blake was wrong. In any event, he submitted, the conduct alleged in the defendants’ particulars was capable of being considered worse than that alleged in the plaintiff’s imputation, and this was sufficient to satisfy s.16(2)(c): see Waterhouse v. Hickie (1995) Aust. Torts Reports 81-347 at 64,490.
Decision
In my opinion, it is of some significance in this case that the plaintiff has chosen to frame his imputation in the terms that he “is a dishonest broadcaster in that” he did a certain act, rather than that he “acted dishonestly as a broadcaster in that” he did that act; and that the jury has found in favour of the imputation as thus framed by the plaintiff.
Had the plaintiff relied on and established an imputation that he acted dishonestly as a broadcaster in that he did a certain act, then the question whether the article is capable of carrying the imputation that the plaintiff was a dishonest broadcaster would depend on whether it could reasonably convey, by way of inference, to the ordinary reasonable reader, that the plaintiff’s character was that of a dishonest broadcaster. If the particular dishonesty suggested by the article was such that a conclusion as to the character of the plaintiff could not reasonably be drawn from it, then the article would not be capable of carrying the imputation that the plaintiff was a dishonest broadcaster.
But the plaintiff has established an imputation that he was a dishonest broadcaster in that he did the particular act; and that carries with it the meaning that the act was indicative of his character as being that of a dishonest broadcaster, and could not be considered as merely an isolated dishonest act proceeding “out of character” from someone who was otherwise an honest broadcaster. I do not consider that the defendants have the benefit of an issue estoppel in favour of their first imputation, because an imputation that a person is a dishonest broadcaster, without qualification, in my opinion wider than an imputation that he is a dishonest broadcaster as indicated by a particular act, which could reasonably be considered as involving a limited type of dishonesty. However, in my opinion, the fact that the plaintiff has established that the article imputes an act that is indicative of the plaintiff’s character as a dishonest broadcaster, means that the article must reasonably be considered as at least capable of carrying the imputation that he is a dishonest broadcaster.
I would add that, in any event, I am of the view that the particular dishonesty suggested by the article is such that an inference as to the character of the plaintiff could reasonably be drawn, particularly when regard is had to the material in the box presenting the allegation concerning the plaintiff as “another corporate deal” and linking it to an allegation of related conduct said to have been engaged in by John Laws; so that, quite apart from the point made in the previous paragraph, the article is in my opinion reasonably capable of carrying the imputation that the plaintiff is a dishonest broadcaster. However, in my opinion the jury finding means that it may more readily be found that it does in fact carry that imputation.
Turning to the question of whether the defendant’s first contextual imputation is “another imputation” within s.16(1), in my opinion it is, for essentially the reason that the defendant does not have the benefit of an issue estoppel arising from the jury’s finding in favour of the plaintiff’s imputation. The plaintiff’s imputation can reasonably be considered as involving a limited type of dishonesty, so that what must and/or may be proved by way of justification of that imputation is different from what must and/or may be proved by way of justification of the defendant’s first contextual imputation: Singleton v. John Fairfax & Sons Ltd., Hunt J, NSWSC, 20/2/80, at pp.6 and 7, citing Bishop v. Latimer (1861) 4 LT(NS) 775 and Maisel v. Financial Times Limited No.1 (1915) 84 LJKB 2145; Allen v. John Fairfax & Sons Limited, Hunt J, NSWSC, 2/12/88 at 9-13. The plaintiff asserts, correctly in my opinion, that the defendant may not use other acts of alleged dishonesty as a broadcaster to justify the plaintiff’s imputation; but the defendant certainly can use such acts to justify this contextual imputation.
In my opinion, it would not matter if this contextual imputation arose from precisely the same matter or allegation within the publication as does the plaintiff’s imputation; and in any event, the material in the box presenting the allegation concerning the plaintiff as “another corporate deal” and linking it to an allegation concerning John Laws could reasonably be read as supporting a wider generality of the allegation in respect of the plaintiff.
Thus, the defendant’s first contextual imputation is different in substance from the plaintiff’s imputation. It arises at the same time as and is not an alternative to the plaintiff’s imputation, in that a belief is both imputations could consistently be held. Accordingly, it is capable of being “another imputation” within s.16(1).

The remaining question is whether the defendant’s first contextual imputation is capable of satisfying s.16(2)(c). It was submitted in effect by Mr. Blackburn that there is no suggestion, in the particulars provided by the defendants of the contextual imputation, that the plaintiff ever said anything on air that he did not believe; so that, even if those particulars were established to be true and the plaintiff’s reputation was considered to be injured by the contextual imputation to an extent commensurate with those particulars, this injury is not capable of being such that the plaintiff’s imputation would not further injure the plaintiff’s reputation: cf. Blake.
I note that leave has not been sought to re-argue Blake, and in my opinion the Court should follow Blake. In my opinion also, it is insufficient that the injury associated with the defendants’ contextual imputation could be worse than that caused by the plaintiff’s imputation: it is necessary, in order to satisfy the test in s.16(2)(c), that the injury associated with the contextual imputation or imputations be such that there is no further material injury at all from the plaintiff’s imputation.
However, in my opinion there is no greater sting in an imputation that the plaintiff, in return for a benefit provided by a company, modified his conduct by ceasing to speak unfavourably of that company, than in an imputation that the plaintiff, in return for a benefit provided by a company, commenced to speak favourably of that company. In neither case is there an imputation that the plaintiff actually said anything he did not believe. In both cases, the essential dishonesty is putting forward what he said and did not say on air as reflecting his impartial opinion, uninfluenced by any benefits provided to him or at his direction by persons or companies about whom opinions were expressed. The circumstance that, in cases included in the particulars of the contextual imputation, the relevant benefit was provided to the plaintiff himself, rather than to what might be considered some other deserving cause, could be considered as making the plaintiff’s conduct more discreditable. In my opinion, considered as a whole, the matters dealt with in the particulars of the defendants’ contextual imputation are capable of swamping the plaintiff’s imputation, in the sense of causing such injury to the plaintiff’s reputation that there would be no material additional injury from the plaintiff’s imputation.
Accordingly, in my opinion, the primary judge was in error in relation to this matter. His decision would mean that an important defence would not be dealt with in the trial of the plaintiff’s action. In my opinion it is appropriate to grant leave in relation to this matter, and to allow the appeal in this respect.
OTHER CONTEXTUAL IMPUTATIONS
Submissions
Mr. Rares submitted that the primary judge had given no reasons for his conclusion concerning these matters, and that accordingly it was for the plaintiff to justify the result reached by the primary judge.
Mr. Blackburn submitted, in relation to each imputation, that it contained one or more elements not capable of being conveyed by the article, and/or was bad in form, and/or was not different in substance from the plaintiff’s imputation; and that in any event these contextual imputations could not satisfy s.16(2)(c). He submitted that one cannot add the injury associated with different contextual implications that are either contradictory or merely different gradations of the same basic imputation: see Hepburn v. TCN Channel 9 Pty. Ltd. (1994) 1 NSWLR 386 at 399.
Mr. Rares joined issue with these submissions.
Decision
In my opinion, the conclusion of the primary judge in relation to the other contextual imputations alleged by the defendants was correct.
As regards the second contextual implication, it is clear that this would not be “another imputation” within s.16(1) unless it was different in substance from the plaintiff’s imputation. The possible differences are the reference to betraying his audience’s trust in the integrity of his favourable on-air treatment of a company, and the non-identification of the beneficiary of the benefit. In so far as the alleged difference lies in the failure to name the AMP and the failure to name the beneficiary, either there is no difference (if the company and the beneficiary are taken to be those referred to in the plaintiff’s imputation), or (if the company and the beneficiary are not understood in that sense) the imputation is not capable of being conveyed. To put this another way, in my opinion one does not create “another imputation” within s.16(1) simply by anonymising a person or company referred to in the plaintiff’s imputation. Similarly, in so far as the alleged difference lies in the reference to favourable on-air treatment, either this refers to cessation of criticism, in which case there is no difference, or to something positive being conveyed, in which case that imputation could not be conveyed by the article. Finally, in my opinion the reference to betrayal of his audience’s trust is substantially the dishonesty alleged in the plaintiff’s imputation.
Turning to the third contextual imputation, in my opinion this is either not “another imputation”, or alternatively is defective in form because the words “calculated to influence” are ambiguous.
As regards the fourth contextual imputation, again this is either not “another imputation”, if the word “payment” is taken as including a payment made in re-financing a loan, or else would not be conveyed, if “payment” is not understood in that sense.
As regards the fifth contextual imputation, in my opinion the article is not capable of conveying that the plaintiff had actual knowledge of what his listeners might regard as likely to influence his on-air conduct.
Finally, as regards the sixth contextual imputation, in my opinion this is bad in form because the words “relevant facts” are too vague. If there is an attempt to give content to those words by reference to the article itself, the imputation ceases to be different in substance from the plaintiff’s imputation. There is in my opinion no difference in substance, in the circumstances of this case, between an imputation that the plaintiff was a dishonest broadcaster and an imputation that he was a misleading and deceptive broadcaster.
INTERSTATE DEFENCES
The primary judge’s decision on the interstate defences essentially turned on his finding that the defendants’ contextual imputations were not capable of being conveyed. In accordance with what I have said above, in my view the interstate defences have to be considered on the basis that at least the defendants’ first contextual imputation is capable of being conveyed. I do not think it is necessary to consider the interstate defences with reference to any other of the defendants’ contextual imputations: I think they are unsupportable in this context for essentially the same reasons as given above.
The extent to which the defences in question can be maintained in jurisdictions that do not have any equivalent to s.16 of the New South Wales Defamation Act depends on common law principles, and in particular principles associated with the cases of Maisel v. Financial Times Limited (No.1) (1915) 84 LJKB 2145, and Polly Peck (Holdings) PLC v. Trelford [1986] 1 QB 1000. As I understand those cases, they support the following propositions.
Maisel supports the proposition that, where a plaintiff in a defamation proceeding alleges to the effect that the defendant’s publication meant both that the plaintiff had committed a particular discreditable act and that the plaintiff was of bad character, the defendant can put on a defence justifying the latter allegation by reference to other conduct of the plaintiff suggestive of the relevant bad character, which the defendant can then seek to prove at the trial. To similar effect is the case of MacGrath v. Black (1926) 95 LJKB 951. This is because, at common law, where a libel contains several charges, a defendant can justify some only and thereby mitigate damages: see Gatley on Libel and Slander (7th edition) [1045]; Sutherland v. Stopes [1925] AC 47 at 78; Plato Films Ltd. v. Speidel [1961] AC 1090 at 1141-42. The part justified must be severable from the rest, but the test of severability seems not to be very exacting: Plato Films at 1141-42, Goody v. Oldham Press Ltd. [1967] 1 QB 333 at 340.
Polly Peck is authority for two broad propositions. First, where the plaintiff selects words from the defendant’s publication and pleads that they have a certain meaning or meanings, the defendant can defend the case on the basis that, in their context, the words bear a different meaning and that in that meaning the words are true. The second proposition is that, where a plaintiff selects words from the defendant’s publication and alleges they bear a particular meaning, the defendant can defend on the basis that, even accepting that in their context the words selected by the plaintiff do bear that meaning, they are an inseverable part of an overall defamatory allegation contained in the whole publication, which has a sting common to all the allegations; and the defendant is then entitled to justify that sting, as distinct from the particular component allegation selected by the plaintiff. The status of these propositions in Australia is unclear: see Chakravarti v. Advertiser Newspapers Ltd. (1998) 193 CLR 519 at 527-8 and 533-4; David Syme & Co. Ltd. v. Hore-lacy [2000] 1 VR 667; and Whelan v. John Fairfax Pty. Ltd. (2002) 56 NSWLR 89.
Submissions
Mr. Blackburn submitted that this was not a case where the plaintiff made two distinct allegations, namely one of particular misconduct and the other of general bad character, so Maisel has no application.
He submitted that the first proposition from Polly Peck has no application, because the parties are bound by the jury’s finding that the plaintiff’s imputation does arise. I accept this submission.
Mr. Blackburn then submitted that the second proposition from Polly Peck should not be considered good law in Australia, having regard to what was said in Chakravarti at 527-9. In any event, he submitted, this was not a case where the plaintiff’s imputation was an inseverable part of some overall defamation with a sting common to all its parts.
Mr. Rares submitted inter alia that the jury finding for the particular purposes of the New South Wales statute could not take away defences otherwise available to the defendants at common law.
Decision
In my opinion, the broad effect of Maisel and the second proposition in Polly Peck is as follows. Suppose a defendant publishes to the effect that the plaintiff is a criminal of the worst kind, who has committed murders, sexual assaults and armed robberies.
If the plaintiff sues claiming that the publication alleged all those matters, Maisel says that, if the charges are severable, the defendant can seek to justify the charge that the plaintiff is a criminal of the worst kind by proving, inter alia, that he has committed serious drug offences, even though the publication did not mention this. While this cannot justify the charge that the plaintiff has committed murders, sexual assaults and armed robberies, and while the plaintiff may still recover damages in respect of these matters even if the defendant justifies the charge that the plaintiff is a criminal of the worst kind, the amount of damages may be greatly reduced.
If the plaintiff were to sue alleging that the publication imputed that he had committed sexual assaults, the second proposition in Polly Peck says that if the defendant can show that this charge is an inseverable part of a charge the sting of which is that the plaintiff is a criminal of the worst kind, and if the defendant can justify that sting, this will be a defence even if the defendant cannot justify the particular inseverable part selected by the plaintiff.
Both these propositions differ from the effect of s.16(2) of the Defamation Act. Maisel is different in that it requires that the charge that the defendant justifies be in fact relied on by the plaintiff; it does not require that this charge “swamp” the other charges; and it does not altogether preclude the recovery of damages based on the other charges. The second proposition in Polly Peck is different from s.16 in that it requires that the charge relied on by the plaintiff be an inseverable part of a wider charge that the defendant justifies.
Turning to the present case, in my opinion it is arguable that the defendants can defend on the basis that the imputation alleged by the plaintiff is in substance both a charge that the plaintiff has the character of a dishonest broadcaster and a severable charge of a particular dishonest act, and that the defendants can seek to justify the former, in accordance with Maisel. Since I have held that the contextual imputation defence is available, to permit this defence to remain will not significantly add to the trial; and it is therefore in my opinion appropriate not to decide finally the question involved here.
Accordingly, to that extent, the interstate defences should stand.
Similarly, I do not think it is necessary to decide finally whether the second proposition of Polly Peck is good law or whether it could apply to this case. Although I think the defendants are on stronger ground on the Maisel approach, I would not rule out entirely the contention that the allegation of particular dishonesty is an inseverable part of an overall allegation of dishonest character as a broadcaster, which the defendants could seek to justify.
AGGRAVATED DAMAGES
Submissions
Mr. Rares submitted that, since the plaintiff was relying substantially on additional defamatory effect from the other articles, he should be required to give particulars of the imputations relied on. Furthermore, in so far as he was alleging a campaign of denigration, he should identify the people alleged to be involved in that campaign. He submitted that the particulars were otherwise inadequate, notably in that they did not limit the plaintiff as to the respects in which the plaintiff said this additional material was false or misleading, and did not give an adequate basis for the allegation that it was published without regard to truth or falsity: cf. Roberts v. Bass (2002) 212 CLR 1 at [96]-[104]. Having regard to the limited effect that aggravation can have on damages (see s.46, Defamation Act), the expansion to the case involved in bringing in 27 additional publications made it an abuse of process.
Mr. Blackburn submitted that the plaintiff was not alleging additional defamations, but a campaign of denigration. He was relying on inference as to the existence of such a campaign, and was unable to identify particular people involved, and could be expected to do so. He submitted that the effect of the aggravating material could be significant, not only in relation to hurt feelings, but also as increasing the injury to reputation: Waterhouse v. Station 2GB Pty. Ltd. (1985) 1 NSWLR 58 at 75. He submitted that mere failure to apologise can be aggravating conduct: Clark v. Ainsworth (1996) 40 NSWLR 463 at 468, 474.
Decision
In my opinion, the plaintiff is not relying on the additional material as additional defamations, and indeed could not do so; and there is no need to proceed as if additional defamations were alleged and no need to comply with the requirements for claiming damages for defamation. Thus there is no need for the plaintiff to specify imputations. I would add to this that, in my opinion, the plaintiff cannot seek to increase damages by reference to injury to reputation caused by the content of this additional material: although aggravating conduct may increase damages by way of increasing injury to reputation, in my opinion this will only be through adding to the effect of the defamation actually sued on.
In my opinion, the plaintiff is limited, by the particulars he has given, to the respects to which he says the material is false and misleading. He has given the best particulars he can of the basis for an inference of recklessness. It is very doubtful whether these particulars would be sufficient to draw that inference, particularly in the light of what was said in Roberts v. Bass, but I do not think this is a matter that would justify appellate intervention in a procedural decision. The plaintiff is relying on an inference as to the existence of a campaign and there is no need for him to attempt to identify the individuals involved.
There is to my mind a real question whether the reliance on 27 additional publications as an aggravating factor amounts to an abuse of process in this case. However, since the contextual imputation defence is remaining, the enquiry will be a wide-ranging one in any event. Furthermore, the abuse of process contention was not squarely raised below, and on the whole I do not think this is a matter that could justify appellate intervention in a procedural decision.
Accordingly, in my opinion, the defendants fail in their challenge to this decision of the primary judge.
CONCLUSION
In conclusion, it may be helpful if I comment briefly on the reasons why I respectfully disagree with Spigelman CJ and Ipp JA.
I agree with Spigelman CJ that a formulation of the same imputation at a higher level of generality is not “another imputation” within s.16(1); it was for that reason that I rejected many of the defendant’s contextual imputations, apart from the first. Mere “anonymising” is not enough. However, if a formulation at a higher level of generality makes the imputation different in substance, then this is not a formulation of the same imputation at a higher level of generality. In the present case, my view is that an imputation of general dishonesty as a broadcaster is at least capable of being substantially different (because wider and more thorough-going) from an imputation of dishonesty as a broadcaster in that a particular act is performed; and accordingly this aspect of the defence should not have been struck out in advance of the hearing.
I do not believe that my approach unreasonably subjects plaintiffs to being caught in the “Maisel” trap. I think it is generally consistent with the approach at general law, illustrated by Maisel and Polly Peck, and also with policy behind s.16(2) of the Act, that if defamatory material truly carries an imputation that swamps the plaintiff’s imputation and can be justified, the defendant should be able to rely on this, either as an outright defence or at least in mitigation of damages.
Whereas Spigelman CJ accepts that the contextual imputation may differ in substance from that found by the jury, Ipp JA holds that the meanings of the two imputations are in substance the same. I have already indicated my disagreement with that. Furthermore, if it is right, it seems to me that the defendant could justify the plaintiff’s imputation by reference to other acts of dishonesty. Certainly this would seem to be so at general law, at least if the second proposition in Polly Peck is correct. That is, on Ipp JA’s view, there is an overall charge that the plaintiff is a dishonest broadcaster, and in so far as the plaintiff referred to a particular act of dishonesty, this would, on his view, be an inseverable part or aspect of this overall charge. Thus I agree with Ipp JA that, on his approach, the defendant could attempt to justify under s.15(2) of the Act, and the interstate defences should not be struck out.
In my opinion, the following orders should be made in CA40056 of 2003 (concerning contextual imputations and other defences):
(a)Leave to appeal granted.
(b)Notice of Appeal to be filed within 14 days.
(c)Appeal allowed.
(d)Orders 1-6 below set aside.
(e)In lieu thereof, paragraphs 4(a)(2)-(6) and 6(a)(2)-(6) of the Defence are struck out, and plaintiff is to pay one-half of the defendants’ costs of the application.
(f)Opponent to pay claimants’ costs of the application for leave and appeal, and to have a certificate under the Suitors’ Fund Act if otherwise qualified.

However, the majority decision makes the following orders appropriate to dispose of this application:
1.In CA40055 of 2003 (concerning aggravated damages), leave to appeal refused with costs.
2.In CA40056 of 2003 (concerning contextual imputations and other defences:
(a)Leave to appeal granted.
(b)Notice of Appeal to be filed within 14 days.
(c)Appeal allowed in part.
(d)Order 1-6 below set aside.
(e)In lieu thereof, paragraphs 4 and 6(a)(2)-(6) of the defence are struck out.
3.Leave to both parties to make written submissions concerning costs within 7 days, any reply to be provided within a further 7 days.
The leave given by Order 3 will apply to both costs at first instance and on appeal.
IPP JA: I have had the benefit of reading the reasons to be published by Spigelman CJ and Hodgson JA. In the light of their Honours’ full treatment of the relevant issues it is necessary for me to deal only with the questions that concern the defendants’ first contextual imputation and the interstate defences. I would add that I found these questions particularly difficult to answer.
The jury found that the material complained of carried the following imputation defamatory of the plaintiff:
“The plaintiff was a dishonest broadcaster, in that he secretly agreed with the AMP Society that he would cease to criticise the AMP Society on air in return for the AMP Society agreeing to provide a substantial benefit to the South Sydney Rugby League Club of which he was Director of Football”.
I agree with Hodgson JA that this imputation meant that the plaintiff’s conduct “was indicative of his character as being that of a dishonest broadcaster, and could not be considered as merely an isolated dishonest act proceeding ‘out of character’ from someone who was otherwise an honest broadcaster”.
In other words, in my view, the imputation found by the jury is to the effect that the general character of the plaintiff is that of a dishonest broadcaster.
The relevant contextual imputation relied on by the defendant is that “the plaintiff was a dishonest broadcaster”. Thus, the defendants’ contextual imputation, reflecting as it does on the general character of the plaintiff as a broadcaster, is, in effect, the same imputation as the plaintiff’s imputation.
Generally speaking, the same words may be capable of bearing a broad defamatory meaning and a narrow defamatory meaning. I accept that if a plaintiff sues for defamation, relying only on the narrow meaning of the words, the broad meaning will ordinarily be “another meaning” within the meaning of the phrase in s 16(1) of the Defamation Act 1974.
In the present case, however, I do not think that the matter complained of has, relevantly, both broad and narrow meanings. In my opinion, the meaning of the plaintiff’s imputation and the defendants’ contextual imputation is, in effect, the same. That is, that the general character of the plaintiff is that of a dishonest broadcaster.
As I have concluded that the plaintiff’s imputation carries with it the broad meaning to which I have referred, namely, that the act was indicative of the plaintiff’s general character as being that of a dishonest broadcaster, I disagree with Hodgson JA that “the plaintiff’s imputation can reasonably be considered as involving a limited type of dishonesty”.
Accordingly, I agree with Spigelman CJ that paragraph 4 of the statement of claim should be struck out.
In theory, in my view, it would have been open to the defendant to attempt to justify, under s 15(2) of the Defamation Act, the imputation found by the jury, but it has not chosen to do so.
It follows, further, in my view, that the defendant is entitled to raise the interstate defence pleaded in para 6(a)(1) of the defence. I would not strike that paragraph out. I agree with Hodgson JA that, as regards the interstate defences, only paras 6(a)(2) to (6) be struck out (and not para 6(a)(1)).
Accordingly, I propose the following orders:
(a)Leave to appeal in CA 40055 of 2003 should be dismissed with costs.
(b)          Leave to appeal in CA 40056 of 2003 should be granted.
(c)          Paragraph 4 of the defence should be struck out.
(d)          Paragraphs 6(a)(2)-(6) of the defence should be struck out.
(e)          The orders of Levine should be varied accordingly.
(f)           I would make no order as to costs.
On the other issues I agree with Hodgson JA.

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LAST UPDATED: 22/06/2004