Jones v TCN Channel Nine Pty Ltd (No 3)

[2016] NSWSC 922

Supreme Court

New South Wales

Medium Neutral Citation:	Jones v TCN Channel Nine Pty Ltd (No 3) [2016] NSWSC 922
Hearing dates:	24 June 2016
Decision date:	24 June 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Application to amend statement of claim allowed
Catchwords:	DEFAMATION – procedure – where plaintiff seeks to appropriate defendant’s contextual imputations – where plaintiff submits imputations are capable of arising but not in fact conveyed
Cases Cited:	Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171 Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90
Category:	Procedural and other rulings
Parties:	Dane Charles Jones (Plaintiff) TCN Channel Nine Pty Ltd (First Defendant) Nine Network (Australia) Pty Ltd (Second Defendant) Ninemsn Pty Ltd (Third Defendant) Tim Arvier (Fourth Defendant)
Representation:	Counsel: S Chrysanthou (Plaintiff) M Richardson (Defendants)   Solicitors: Kalantzis Lawyers (Plainiff) O’Brien Legal (Defendants)
File Number(s):	2014/00086408

Judgment

1. HER HONOUR: This is an application to amend a statement of claim. The proceedings, as I had occasion to observe in an earlier judgment, have had a tortuous history. The argument today has been heard in a busy defamation list; since I am delivering my judgment ex tempore I do not propose to rehearse that history again.

2. In short, the purpose of the proposed amendment is to allow the plaintiff to appropriate contextual imputations pleaded in a defence filed on 12 February 2016. Notice of the application was given promptly after that date, although in the context of the interlocutory history of these proceedings, that probably does not tell the full story. The complete history to the application is set out in the affidavit of Mr Vasilios Kalantzis sworn 20 April 2016.

3. The plaintiff's desire to appropriate the contextual imputations is derived from a proposition stated by Macfarlan JA in Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 at [23] as follows:

“The submission should be rejected as those contextual imputations were not ones upon which Mr Holt sued. It was open to Mr Holt to "adopt" the respondents' pleaded contextual imputations by himself pleading them against the respondents (Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; 81 NSWLR 157 at [88] - [89]) but he did not do so. It would be a subversion of the litigious process for him to be awarded damages in respect of conduct of the defendants of which he did not complain. Defendants are entitled to fair notice of the case made against them and to the opportunity to deal with it. This did not occur in relation to the conduct that Mr Holt seeks to rely upon for the first time on appeal. There is no reason to doubt the respondents' assertion on appeal that if the point had been taken by Mr Holt at first instance, the evidence there may have been different, in particular as a result of cross-examination of Mr Holt as to why he sought damages for imputations that he had not identified at the outset of the proceedings, or before, as carried by the publication (compare Coulton v Holcombe [1986] HCA 333; 162 CLR 1 at 7 - 8).”

4. The relevant principles are not in dispute to this extent; it is common ground between the parties that the Court has a discretion to allow a plaintiff to amend his or her pleadings so as to adopt a contextual imputation. The relevant authorities were summarised in my judgment in Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171 at [5]-[6] as follows:

It is, I think, beyond doubt that the Court has a discretion to allow a plaintiff to amend his or her pleading so as to adopt a contextual imputation pleaded by a defendant: Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 at [41]per Simpson J; approved in Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 at [88] to [89] per McColl JA; cited with approval in Holt v TCN Channel 9 Pty Ltd (2014) 85 NSWLR 96 at [23] per Macfarlan JA; Gleeson JA and Sackville AJA agreeing; and see my decision in Hall v TCN Channel 9 Pty Ltd [2014] NSWSC 1604.

A helpful and informative analysis of the relevant authorities may be found in two decisions of the defamation list judge in the District Court, Gibson DCJ in Mallegowda v Sood (No 3) [2015] NSWDC 14 and Petty v Zhao (No 2) [2015] NSWDC 18.

5. The focus of the contest in argument today has been, rather, whether the Court should exercise that discretion. Mr Richardson submitted, by reference to a colourful analogy comparing a beautiful retail shop display with one in which the mannequins are bare, that the argument for allowing the amendment in this case is considerably less attractive than the application I rejected in Chel. A principal consideration in his submissions on that issue is the fact that the affidavit of Mr Kalantzis sworn in support of the application asserts that the plaintiffs are of the view that the contextual imputations are not carried by the matter complained of and are not carried in addition to the plaintiff's imputation.

6. In Chel, I said at [22] and [23]:

Those remarks acknowledge the potential unfairness of precluding a plaintiff from relying upon an imputation that has escaped the imagination of the pleader but which, upon being identified, the plaintiff wishes to embrace in the vindication of his or her reputation.

I am not persuaded that the plaintiff seeks to vindicate her reputation against the defamatory meanings captured in the defendants’ contextual imputations. Indeed, in a tribute to the metaphysical agility required of practitioners in the field of defamation, Mr Rasmussen submitted, in the alternative to his application for leave to amend, that the contextual imputations should be struck out as being bad in form (contextual imputation A) or incapable of arising (contextual imputation B). This is not a case of visiting the plaintiff with the unfairness of a counsel of perfection, the vice illustrated in the remarks of Gibson DCJ. The plaintiff seeks leave to amend to plead imputations she eschews. I do not think the dictates of justice require me to allow that to occur.

7. Mr Richardson submitted that the position is the same here (that the contextual imputations are imputations the plaintiff eschews) and that it would, in that circumstance, be unfair to the defendants to allow the plaintiff effectively to hedge his bets and prejudice the defendants (because it would deprive them of the contextual truth defence).

8. There are two important differences between this case and the circumstances in Chel. One is that what had been submitted in Chel by the plaintiff was that the imputations were incapable of arising, whereas in the present case it is acknowledged by the plaintiff that they are capable of arising; it is just that his counsel, Ms Chrysanthou, is of the view that those imputations are not in fact conveyed.

9. More importantly, however, with one exception, the contextual imputations sought to be appropriated here carry the same, or substantially the same, defamatory sting as the plaintiff's imputations. The difference rests in the fact that the plaintiff's imputations allege that the matter complained of attributed him with having done certain things in the capacity of an owner of a particular business, whereas the contextual imputations rest on an attribution that he did those things in the capacity of general manager of the business. The evidence of Mr Kalantzis as to his belief as to whether the imputations are conveyed must be assessed in that specific context, which entails a degree of subtlety or nuance that did not arise in Chel.

10. In all the circumstances, I am persuaded that it is appropriate to allow the plaintiff to take the course he seeks to take by the application. Accordingly, leave is granted as sought.

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Decision last updated: 04 August 2016