Monte v John Fairfax Publications Pty Ltd
[2002] NSWSC 209
•22 March 2002
CITATION: Monte & Anor v John Fairfax Publications Pty Ltd [2002] NSWSC 209 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20888 of 2001 HEARING DATE(S): 18 March 2002 JUDGMENT DATE: 22 March 2002 PARTIES :
FRANK MONTE
(First Plaintiff)JAMES MONTE
(Second Plaintiff)v
JOHN FAIRFAX PUBLICATIONS PTY LTD
(Defendant)JUDGMENT OF: Levine J
COUNSEL : M Rollinson
W H Nicholas Q.C.
(Plaintiffs)
(Defendant)SOLICITORS: Horowitz & Bilinsky
Freehills
(Plaintiffs)
(Defendant)CATCHWORDS: Defamation - imputations - difference in substance - "lying" - "committed perjury" - true innuendo - multiple imputations embarrassing LEGISLATION CITED: Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)CASES CITED: Mayfield-Smith v Mirror Newspapers (1982) 2 NSWLR 419
Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749
R v Dobos (1984) 58 ACTR 10
R v Charles (Court of Criminal Appeal, unreported, 23 March 1998)
R v Davies (1973) 7 SASR 375
R v Jones (Court of Criminal Appeal, unreported, 23 March 1998)
R v Lewis (1914) 10 Tas LR 48
Singleton v John Fairfax & Sons Pty Ltd (Hunt J, unreported, 20 February 1980)
The Queen v Baker (1895) 11 QB 797
Versace v Monte [2002] FCA 190DECISION: See paragraph 26
DLJ: 1
[2002] NSWSC 209
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
D efamation list
JUSTICE DAVID LEVINE
FRIDAY 22 MARCH 2002
20888 of 2001
FRANK MONTE
(First Plaintiff)
JAMES MONTE
(Second Plaintiff)
John Fairfax Publications Pty Ltdv
(Defendant)
1 By a Statement of Claim filed on 9 November 2001 the plaintiffs seek damages for defamation arising from the publication in “The Sydney Morning Herald” of 8 November 2001 of an article bearing the headline “Versace’s trump card: He met a man who wasn’t there” (together with photographic and other graphic material).
2 The article complained of deals, in general terms for present purposes, with the proceedings in the Federal Court of Australia instituted by members of the Versace family in the quest of relief relating to the anticipated publication of a book by the first plaintiff, “The Spying Game”. As it turns out the judgment on liability in that matter was handed down on 8 March 2002, Versace v Monte [2002] FCA 190, Tamberlin J.
3 The imputations are as follows:
“3(a) the first plaintiff committed perjury in the Federal Court when he gave evidence that he met Gianni Versace on 22 March 1996;
(b) the first plaintiff committed perjury in the Federal Court when he gave evidence that he saw Gianni Versace on 2 July 1996;
(c) the first plaintiff committed perjury in the Federal Court when he gave evidence that he spoke to and met Gianni Versace on 5 July 1996;
(d) the first plaintiff committed perjury in the Federal Court when he gave evidence that he spoke to and met Gianni Versace on 6 August 1996;
(e) the first plaintiff committed perjury in the Federal Court when he gave evidence that he met Gianni Versace on 2 January 1997;
(f) the first plaintiff lied to the Federal Court when he gave evidence that he met Gianni Versace on 22 March 1996;
(g) the first plaintiff lied to the Federal Court when he gave evidence that he saw Gianni Versace on 2 July 1996;
(h) the first plaintiff lied to the Federal Court when he gave evidence that he spoke to and met Gianni Versace on 5 July 1996;
(i) the first plaintiff lied to the Federal Court when he gave evidence that he spoke to and met Gianni Versace on 6 August 1996;
(j) the first plaintiff lied to the Federal Court when he gave evidence that he met Gianni Versace on 2 January 1997;
(l) the second plaintiff lied to the Federal Court when he gave evidence that he saw his father Gianni Versace on 2 January 1997 ” (emphasis added).(k) the second plaintiff committed perjury in the Federal Court when he gave evidence that he saw his father meet Gianni Versace on 2 January 1997;
4 The defendant takes objection to the imputations.
5 First, the imputations as to the first plaintiff 3(a) – (e) (the “perjury” imputations) do not different in substance from (f) – (j) (the “lying” imputations). Secondly, the imputation as to the second plaintiff in paragraph 3(k) does not differ in substance from that in 3(l). In other words, the provisions of SCR Pt 67 r 11(3) proscribing the pleading of imputations which do not differ in substance have been infringed.
6 For the defendant it is contended that the conduct attributed to each plaintiff in each set of imputations is “substantially” the same, namely that he “intentionally gave false evidence in proceedings before the Federal Court of Australia”, a meaning formulated by the defendant.
7 Thirdly, and in the alternative, the defendant contends that the “perjury” imputations 3(a) – (e) do not differ in substance one from the other. Fourthly, a similar proposition is advanced in relation to the “lying” imputations 3(f) – (j).
8 It is submitted that the difference in each imputation as pleaded is but the occasion in respect of which the first plaintiff committed perjury or lied. Such a particular adds nothing to the substance of the imputation namely, the act or conduct of the first plaintiff allegedly attributed to him in the publication complained of. In other words, the inclusion of the specific aspect of the evidence given does not render the imputations different in substance.
9 In Mayfield-Smith v Mirror Newspapers (1982) 2 NSWLR 419 Hunt J said (at 420):
- “If the imputation upon which the plaintiff relies is to express (as it must) the precise act or condition asserted of or attributed to the plaintiff or with which he is charged (see Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, at p 678), then the addition within that imputation of detail which may or may not be material to what must be proved by the defendant in order to justify the truth of that imputation (see Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, at p 41) is embarrassing to the defendant and will be struck out pursuant to Pt 15, r 26(1)(b)…”
10 It is submitted for the defendant that what his Honour there said applies quite clearly to the present situation; the “separation” of the imputations merely arises from the addition of embarrassing “detail”. This is reinforced by the proposition (see Singleton v John Fairfax & Sons Pty Limited (Hunt J, unreported, 20 February 1980) that what must be considered is what a defendant has to prove by way of justification of an imputation. Thus, the proof of the truth of imputations 3(a) – (e), 3(f) – (j), 3(k) and 3(j) will require proof of exactly the same facts and matters as to the conduct of each plaintiff, it is submitted.
11 It is also contended, as has been stated above, that there is no difference in substance between an imputation (or a set of them) which asserts “lying” (or intentionally giving false evidence) and the commission of perjury. To that I will return.
12 The plaintiff contends that it is not correct to assert that proof of what is required to justify the imputations in their present form is the same in each case. For example, it is said, in respect of imputation (a) whether or not the first plaintiff committed perjury (or told a lie), when he said that he met Gianni Versace on 22 March 1996, will require proof of and consideration of different matters to imputation (b) relating to the first plaintiff having seen Mr Versace on 2 July 1996. It is stated in written submissions that one relates to “meeting” and the other to merely “seeing” Mr Versace. Thus, it is said, the two imputations will rely on different evidence.
13 It is argued for the plaintiffs that the structure of the matter complained of is “particular” as opposed to “general” namely, that the defamatory sting is separately conveyed five times in relation to the instances of alleged false testimony.
14 It is further argued that the plaintiffs, or more particularly the first plaintiff, could theoretically still have a case on damages in relation to, say, two unproved imputations in their present form. An available view as to the realities of that proposition is that, at least, it is highly unlikely the plaintiff’s position on damages would be improved in such a situation. In this context one can remark that if the plaintiff had pleaded the general imputation which the defendant sought to justify by reference to five instances and only three of which were proved, the defendant would be unlikely troubled by a proposition that the substantial truth of the single imputation had not been thereby proved. These remarks, however, are but speculation upon tactical considerations affecting the parties.
15 The issue is whether as a matter of pleading and principle the course upon which the plaintiffs have embarked is permissible.
16 A fair reading of the article sued upon spells out but one meaning captured (and that by the defendant in its submissions) to the effect that the plaintiffs intentionally gave false evidence in proceedings before the Federal Court of Australia. Ms Crichton, apparently the author of the text of the article, exemplified the general proposition by reference to particular instances. The piece including the headline cannot exclude the generality as the plaintiffs submit. It is embarrassing to the defendant in the sense referred by Hunt J in Mayfield-Smith.
17 For the plaintiff, it was conceded that absent a pleading by way of true innuendo, the defendant’s argument that imputations as to “lying” (or intentionally giving false evidence) and “perjury” could not be said to differ in substance, was correct. This must be so: the ordinary reasonable reader would only understand “lying to the Federal Court when he gave evidence …” as meaning substantially, if not precisely, the same as “committed perjury” when both are natural and ordinary meanings.
18 The plaintiff seeks leave to amend to plead “perjury” imputations as true innuendos by reason of the particular meaning that word bears by reference to s 327 of the Crimes Act, 1900 (NSW) which states:
(2) A statement can be considered to have been made in connection with a judicial proceeding whether or not a judicial proceeding has commenced, or ever commences, in connection with it.“(1) Any person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding , knowing the statement to be false or not believing it to be true, is guilty of perjury and liable to imprisonment for 10 years.
- (3) The determination of whether a statement is material to a judicial proceeding that has not commenced is to be made on the basis of any judicial proceeding likely to arise in connection with the statement.
- (4) The question of whether any matter is material to a proceeding is a question of law” (emphasis added).
19 On its face the New South Wales provision (if it be the relevant provision) enacts the notion of “materiality” to the proceeding. It also enacts in subsection (4) that that question is a question of law.
20 The defendant contends that leave should not be granted to so amend on the basis, as I understand it, that the difference in substance would still not exist. Of that I am not presently persuaded by reason of the plaintiffs asserting that under what they say to be the relevant law there is the additional ingredient of “materiality”.
21 I have queried whether s 327 of the Crimes Act, 1900 (NSW) would be the relevant provision if, by way of true innuendo, it is contended that the defendant has published of the plaintiffs that each has committed the offence of perjury. Consideration would have to be given to whether or not the appropriate provision is s 35 of the Crimes Act, 1914 (Cth.) which is as follows:
“(1) Any person who, in any judicial proceeding, or with the intention of instituting any judicial proceeding, intentionally gives false testimony touching any matter, material in that proceeding , shall be guilty of an indictable offence.
(2) For the purpose of this section it is immaterial whether the testimony was given on oath or not on oath, or was given orally or in writing, or whether the court or tribunal to which it was given was properly constituted or was held in the proper place, or whether the person who gave the testimony was a competent witness or not, or whether the testimony was admissible or not” (emphasis added).(1A) For the purposes of an offence against subsection (1), strict liability applies to the physical element of circumstance of the offence, that the matter is material in the proceeding.
22 In any event, both sections contain the ingredient of “materiality”. There is nothing, of course, in the “lying” imputations that would connote this concept and hence, presently, there is the available difference in substance.
23 The statement alleged to be false must be “material” to the proceedings and it will be material “if it is of such a nature as in any way to affect directly or indirectly the probability of evidence to be determined by the proceedings”: R v Lewis (1914) 10 Tas LR 48. It has also been held that the evidence must be “not only relevant, but practically relevant. A statement of only remote or theoretical relevance may not be material”:R v Davies (1973) 7 SASR 375. The New South Wales Court of Criminal Appeal considered the materiality of evidence before a Coroner; R v Jones (Court of Criminal Appeal, unreported, 16 June 1998: BC8801835) where Bray CJ’s remark in Davies was referred to in the judgment of James J at page 17. Gleeson CJ appears to have adopted the same tests in R v Charles (Court of Criminal Appeal, unreported, 23 March 1998) where his Honour also refers to The Queen v Baker (1895) 11 QB 797 where it was held that all false statements made by a witness on a matter affecting his credit are “material”. The principles are further considered by James J in Charles at page 12.
24 Under both the State and Commonwealth legislation materiality is a question of law (R v Dobos (1984) 58 ACTR 10). The difficulty that presently arises and which precludes the refusal of the grant of leave to amend to include a perjury imputation by way of true innuendo is that ultimately it will be a trial matter (though conceivably it could arise on the supply of particulars) that an issue of materiality arises in relation to the perjury imputation that is not relevant to the “lying” imputation.
25 It is a requirement still in New South Wales that an imputation pleaded must be taken to include all other imputations which do not differ in substance (Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749 at 771). It is argued for the plaintiff generally that this is a case of particular imputations as opposed to a general one that includes those that do not differ in substance. That overlooks, in my view, the fact that the “particular” imputations founded on natural and ordinary meanings themselves do not differ in substance in any material respect; what would have to be proved to establish each as substantial truth is exactly the same in my view. The reference to the date or of the giving of evidence or the subject matter of that evidence is a detail that is embarrassing as I have remarked.
26 Accordingly, l formally order:
(a) Imputations (a) to (j) are struck out as infringing SCR Pt 67 r 11(3) as between imputations (a) to (e) themselves, as between imputations (f) to (j) themselves and as between (a) – (e) and (f) – (j).
(b) I strike out imputations (k) and (l) on the basis of the infringement of SCR Pt 67 r 11(3).
(c) I grant leave to the plaintiffs to file an Amended Statement of Claim within 14 days of today.
(d) I grant leave to the plaintiffs to plead, in respect of each plaintiff, a single “ lying” imputation by way of natural and ordinary meaning and a single “ perjury” imputation by way of true innuendo properly particularised.
(f) I stand the matter over to the Registrar’s Defamation Directions List on 5 April 2002.(e) The plaintiffs are to pay the defendant’s costs.
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