Nationwide News Pty Ltd v Warton

[2002] NSWCA 377

CITATION:	Nationwide News Pty Ltd v Warton [2002] NSWCA 377
FILE NUMBER(S):	CA 40516/01
HEARING DATE(S):	2 August 2002
JUDGMENT DATE:	21 November 2002
PARTIES :	Nationwide News Pty Ltd (Appellant) Vlad Warton (Respondent)
JUDGMENT OF:	Handley JA at 1; Heydon JA at 2; Hodgson JA at 63

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 20346/00
LOWER COURT JUDICIAL OFFICER :	Badgery-Parker AJ

COUNSEL:	Mr G O'L Reynolds SC/Mr J O Hmelnitsky (Appellant) Mr C A Evatt/Mr J C Henness (Respondent)
SOLICITORS:	Blake Dawson (Appellant) Benjamin & Khoury (Respondent)
CATCHWORDS:	Tort - defamation - newspaper article - allegedly carrying defamatory imputations - jury verdict as to imputations - whether imputations open to jury - whether appeal required leave or lay as of right - D
CASES CITED:	Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Bishop v Latimer (1861) 4 LT (NS) 775 Boyd v Mirror Newspapers Ltd [1982] 2 NSWLR 449 O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 Penton v Calwell (1945) 70 CLR 219 Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, 20 February 1980, unreported, Hunt J) Strasberg v Westfield Ltd [2002] NSWSC 689 Warren v Tweed Shire Council [2002] NSWSC 211
DECISION:	See paragraph 62

CA 40516/01
SC 20346/00

HANDLEY JA
HEYDON JA
HODGSON JA

21 November 2002

NATIONWIDE NEWS PTY LTD v Vlad WARTON

Tort – defamation – newspaper article – allegedly carrying defamatory imputations – jury verdict as to imputations – whether imputations open to jury – whether appeal required leave or lay as of right

On 23 May 2000 the defendant published an article in The Daily Telegraph entitled “Bout a sucker punch” relating to a proposed boxing match between Kostya Tszyu and Julio Cesar Chavez. By Statement of Claim filed 25 July 2000 the plaintiff alleged that the article contained various defamatory imputations. A jury delivered a verdict that the article carried various imputations, including the imputation: “The plaintiff is dishonest”. The defendant filed a Notice of Appeal contending that the verdict was perverse in that respect. The plaintiff filed a Notice of Motion alleging the Notice of Appeal to be incompetent.

(Heydon JA, Handley and Hodgson JJA agreeing), granting leave to appeal and dismissing the appeal,

1. The defendant’s reliance on the dictionary definition of “sucker punch” fails. If the headline stood alone, the argument might have some force. But read as a whole, the force of the headline turns not on the meaning of “sucker punch”, but on the meaning of “sucker” as urged by the plaintiff: [33].

2. So far as the defendant contended that there is no material in the article supporting the proposition that the plaintiff has done a dishonest act in the sense of the word “dishonest” urged by the defendant, the argument fails. Each of the elements of the relevant allegations is anchored in various parts of the article. In any event, the article alleges “dishonesty” in some of the wider meanings relied on by the plaintiff: the article suggests conduct on the part of the plaintiff which is not straightforward, which is dishonourable, disgraceful or underhand, and which is not creditable or virtuous: [41].

3. The defendant’s contention that even if conclusions of a “dishonest” type flowed from the article, they flow only as inferences, and that the defendant is not responsible for most of them because they are inferences on inferences, fails. None of the things described above which the article communicates depends on a process of inference. Each followed from the particular language in the article. A process of characterisation in the light of several statements is not necessarily a process of inference: [42], [44].

4. The defendant’s contention that even if the article stated that the plaintiff had behaved dishonestly in organising the fight, it was perverse to infer that he was a dishonest man, failed. The article does not suggest that the plaintiff’s act is other than an isolated act of dishonesty, but it does suggest that it is a most serious act of dishonesty. While a person can do a dishonest thing without being thought a dishonest person, some things are so dishonest that one can infer that only a dishonest person would do them. The activities attributed to the plaintiff in the article are so extensive, serious and risky that it is open to ordinary reasonable readers to infer that only a dishonest person would have done them: [61].

Penton v Calwell (1945) 70 CLR 219; Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, 20 February 1980, unreported, Hunt J); Boyd v Mirror Newspapers Ltd [1982] 2 NSWLR 449; Warren v Tweed Shire Council [2002] NSWSC 211; Strasberg v Westfield Ltd [2002] NSWSC 689, considered.
O R D E R S

1. Extend the time for filing the Summons for Leave to Appeal to the date of filing.

2. Leave to appeal granted subject to the Notice of Appeal being filed within 14 days.

3. Appeal dismissed with costs including the costs of the respondent’s Notice of Motion of 12 September 2001.

CA 40516/01
SC 20346/00

HANDLEY JA
HEYDON JA
HODGSON JA

21 November 2002

NATIONWIDE NEWS PTY LTD v Vlad WARTON

Judgment

1 HANDLEY JA: I agree with Heydon JA.

2 HEYDON JA: On 23 May 2000 the defendant published an article in The Daily Telegraph, a mass circulation newspaper.

3 On 25 July 2000 the plaintiff filed a Statement of Claim alleging that the article carried various defamatory imputations.

4 On 10 November 2000 Greg James J declined to strike out paragraph 3(g) of the plaintiff’s Statement of Claim which alleged that the article conveyed the imputation: “The plaintiff is dishonest.”

5 On 19 June 2001, after a trial before Badgery-Parker AJ, a jury delivered a verdict that the article carried various imputations, including the imputation: “The plaintiff is dishonest.”

6 On 17 July 2001 the defendant filed a Notice of Appeal contending that the verdict was a perverse verdict in that respect.

7 On 12 September 2001 the plaintiff filed a Notice of Motion seeking an order that the appeal be struck out as incompetent.

8 The defendant then filed a Summons seeking leave to appeal, and applied for an extension of time within which to file it.

9 The best course is to consider the substance of the issue which the defendant wishes to raise, and put on one side the question whether an appeal lies as of right. If the defendant’s point is sufficiently good, it will attract a grant of leave and an order extending time. In those events it will not matter whether or not the defendant’s Notice of Appeal was competent.

10 The court acceded to the defendant’s application that the application for leave should proceed as a hearing conducted concurrently with the appeal with a view to deciding the whole controversy in a single hearing.

The article

11 The article concerned a proposed professional boxing match between Kostya Tszyu and Julio Cesar Chavez. The plaintiff was Tszyu’s manager and the promoter of the contest. The article was headed “Bout a sucker punch”. It contained a relatively large photograph of Tszyu and a relatively small photograph of Chavez. Below Tszyu’s photograph appeared the words “Mismatch … the proposed fight between Australia’s Kostya Tszyu and the ageing Julio Cesar Chavez (right) is being challenged by boxing authorities in the US”. The text of the article was as follows (the paragraph numbers were inserted by the pleader of the Statement of Claim for ease of reference):

“1. The goose that laid the golden egg is already dead and Vlad Warton doesn’t seem to know it.
2. If Kostya Tszyu’s fight against Julio Cesar Chavez goes ahead then Warton, as promoter of the event, should be arrested at the door of the MGM Grand in Las Vegas.
3. Faded legends shouldn’t be sent to the slaughter.
4. Warton, Kostya Tszyu’s manager, is currently embroiled in a stink in America.
5. There, resistance has mounted against a fight with Chavez, and quite rightly, too. The fight is three years too late.
6. There was a time when Chavez was the greatest draw among boxing’s lighter weights and a fight against Tszyu seemed natural and inevitable.
7. A bout with Chavez guaranteed a fighter a big-dollar purse and world recognition, which would have been perfect for an emerging fighter like Tszyu.
8. But Tszyu’s camp has held off so long that Chavez, now 37, is as finished as a fighter can ever be.
9. The last fight he had was when he stopped Buck Smith in the third round last December. With due respect to Buck Smith, who the hell is he?
10. Before that Willy Wise beat Chavez in a unanimous points decision last October.
11. But at least Willy Wise is familiar to Australian audiences – he is the man Shannon Taylor knocked out in two rounds some years back.
12. Taylor dropped Wise so violently he was quivering like a fish on a river bank.
13. Yet Warton, who did not return The Daily Telegraph’s calls yesterday, won’t let Tszyu fight Taylor.
14. Tszyu’s career path is currently being plotted by Braille.
15. At least the Americans have caught on, so far refusing to allow the Tszyu-Chavez fight to go ahead.
16. Last week the Nevada Athletic Commission refused to license the fight because of the possibility that Chavez might get seriously hurt.
17. ‘There are questions about Julio’s health and safety we have to address,’ commission director Marc Ratner said.
18. Along with that, commission vice-chairman Lorenzo Fertitta conceded the bout was ‘a potential mismatch’.
19. Then the US National Association of Boxing Commissions sent a letter to World Boxing Council president Jose Sulaiman – an unabashed Chavez fan and the man who sanctioned the fight – questioning its legitimacy.
20. USNA president Greg Sirb complained the fight ‘does not merit the title world championship and on paper does not appear a competitive match-up’.
21. He also questioned how Chavez could rise to be ranked the No 1 challenger.
22. After all, the last time Chavez fought as a super lightweight was 1998. Since then he has fought in the heavier welterweight division.
23. And there are more discrepancies.
24. While Wise beat Chavez he is currently not ranked in the top 10. Also, the last three title fights Chavez has fought – all under the WBC banner – he has lost.
25. So how is he ranked No 1, which makes his challenge to Tszyu mandatory?
26. Originally, the Tszyu-Chavez fight was seen as a money spinner because it was a natural match-up, if a little overdue.
27. But the match has taken so long to be made Chavez is no longer viable against the talents of Tszyu.
28. The only thing likely to benefit from this fight is Tszyu’s bank account, and thereby Warton’s.
29. Yesterday, Warton confirmed in a press statement that the fight has been postponed for two weeks while the Nevada Athletic Commission forces Chavez to undergo an independent fitness test.
30. That’s because they know boxers grow old overnight in the fight game. What they had is no longer there and it happens suddenly.
31. If Tszyu and his camp are now chasing bigger paydays as his career begins to close, which is the smart thing, they should step up into the heavier welterweight division and forget stiffs like Chavez.
32. But Tszyu has traditionally resisted the idea of stepping up.
33. Three years ago he said it would take at least two years for his body to grow into a welterweight fighter.
34. Former IBF lightweight champion Shane Mosley showed the folly of this when he skipped Tszyu’s super lightweight division, jumping two divisions to campaign in the welterweight division.
35. Mosley will fight Oscar De La Hoya, who has replaced Chavez as the great money spinner in the lighter weights, on June 17.
36. And De La Hoya is at the top of his game.
37. Tszyu will soon head to a training camp in Canberra, working out at the Australian Institute of Sport.
38. What Chavez will do to prepare is anybody’s guess.
39. When Jeff Fenech was in America last year for the Felix Trinidad-De La Hoya fight, he ran into Chavez at Trinidad’s post-fight celebration.
40. Chavez, along with Roberto Duran, was always Fenech’s idol.
41. ‘He was blind drunk,’ Fenech said.
42. ‘And he had to fight a week-and-half-later.’
43. That is what worries the boxing commissions of America, who have heard or seen similar stories.
44. In boxing fighters should be applauded for their courage, not slaughtered because of their promoter’s courage.
45. Tszyu’s fight with Chavez should be stopped.”


The parties’ arguments

The defendant’s written argument

12 The defendant put the following arguments in writing:

“The word ‘dishonest’ suggests deliberate or intentional untruthfulness, trickery, deceit or fraud. ‘Dishonest’ is defined by the Macquarie Dictionary (third edition) to mean:
‘(1) not honest; disposed to lie, cheat or steal (2) proceeding from or exhibiting a lack of honesty; fraudulent.
The Article does not contain any reference, either explicit or implicit, to any notion of dishonesty, lying, cheating, theft, trickery, deceit or fraud, and no inference can reasonably be drawn of any such notion.
To derive a notion of dishonesty from the Article is to give a strained, forced and utterly unreasonable interpretation to the Article.
The Article concerns a proposed boxing match between Kostya Tszyu and Julio Cesar Chavez. In summary, the article criticises the proposed match on the basis that:

· Tszyu is a stronger [fighter] than Chavez;

· Chavez is past his time as a boxer;

· Chavez should not be ranked the number 1 challenger and that questions should be raised about this;

· Chavez may be seriously injured in the match;

· the match between Tszyu and Chavez should have taken place some years ago when Chavez was a stronger fighter;

· the decision to arrange this match is not a good career decision for Tszyu;

· the match will benefit Tszyu’s bank account, and also Warton’s bank account, but otherwise will not be good for Tszyu’s career;

· Tszyu’s career would benefit from him stepping up to a heavier division; and

· Chavez should no longer be fighting.

To the extent that the Article is critical of the Plaintiff, the criticism is directed at bad management, incompetence and heartlessness.
It is not possible to read the article to convey trickery, deceit or dishonesty.
In the absence of any reference, express or implicit, to dishonesty, and in the absence of any reasonable inference of dishonesty, the Verdict of the jury must be considered to be perverse.”

The plaintiff’s written arguments

13 To these arguments the plaintiff replied:

“It is the Respondent’s submission that the whole tenor of the article points to the Plaintiff as being a dishonest manager who has arranged a one sided fight for financial gain.
The headline reads ‘Bout a Sucker Punch’. The bout referred to is the one sided boxing match. According to the Macquarie Dictionary the word ‘sucker’ means ‘a person easily deceived or imposed upon; a dupe’. The headline infers that the bout is to deceive or dupe persons by reason of the Plaintiff’s dishonesty. The public are being treated as suckers.
Paragraph 2 of the article states that if the proposed fight goes ahead then the Plaintiff ‘as promoter of the event, should be arrested …’. The cause of the arrest is obviously the dishonesty of the Plaintiff [in] attempting to deceive the public and obtain monies from a fraudulent fight. The statement that the Plaintiff should be arrested for promoting the fight contradicts the Appellant’s submission … that the attack on the Plaintiff is confined to bad management, incompetence and heartlessness. The only reason for the arrest must be the Plaintiff’s alleged dishonest conduct.
Paragraph 28 provides the motive for the Plaintiff’s dishonesty, that is to say the only thing likely to benefit from the fight is the boxer’s bank account and thereby the Plaintiff’s bank account.
The Respondent agrees with the Appellant’s submission … that for the conveyance of the imputation the article would need to have some suggestion that the Plaintiff had been deliberately deceptive or had engaged in an act of trickery. This is established from the article as a whole but particularly by the headline and paragraphs 2 and 28. Further the entire concept of the fight promoted by the Plaintiff whereby the aged boxer Chavez is likely to be seriously hurt is dishonest.
The final paragraph of the article (44 and 45) in effect demand that the dishonest fight be stopped because of the likelihood that Chavez will be slaughtered.”
The defendant’s oral argument

14 In oral argument the defendant drew attention to the five other imputations which the jury found:

“(a) The Plaintiff is incompetent in his management of Kostya Tszyu.
(b) The Plaintiff is so greedy for money he has arranged for Kostya Tszyu to fight an aging and unfit boxer for the purpose of benefiting his bank account.
(d) The Plaintiff arranged a fight for financial gain which is so one-sided the Nevada Athletic Commission has refused to license it.
(e) The Plaintiff arranged a fight for Kostya Tszyu against Julio Chavez which is unfair because Chavez is so incapable of fighting the Americans have not yet allowed the fight to go ahead.
(f) The Plaintiff arranged a fight for Kostya Tszyu against Julio Chavez which is unfair because Chavez might get seriously hurt.”

15 The defendant submitted that those five imputations demonstrated “the basic gist or sting” of the article. The imputation of dishonesty did not arise from the article and did not cohere with the other five imputations. The first two of those imputations suggested that the plaintiff had been unfair to Tszyu in arranging the fight, and the last three suggested that the plaintiff had been unfair to Chavez in arranging the fight. But unfairness was not dishonesty.

16 The defendant then dealt with the arguments of the plaintiff in defence of the jury’s finding of the dishonesty imputation as follows.

17 First, the defendant said that to organise a mismatch in which it was likely that “Chavez will be slaughtered”, ie badly injured, is not inherently dishonest.

18 Secondly, it was submitted that to say that the only thing likely to benefit from the fight was Tszyu’s, and, hence the plaintiff’s, bank account did not suggest dishonesty. To say that someone will make money out of something does not by itself suggest dishonesty.

19 Thirdly, while a statement that the plaintiff, as promoter, should be arrested might impute arrest on the grounds of dishonesty if there were other material suggesting dishonesty, by itself it did not suggest dishonesty.

20 Finally, the plaintiff‘s reliance on the Macquarie Dictionary definition of “sucker” was flawed, because the headline used the expression “sucker punch”, and that was defined as “an unorthodox punch or move which succeeds only because of its element of surprise”. In that sense the expression “sucker punch” conveyed no element of dishonesty.

21 In the course of argument it was put to counsel for the defendant that the jury finding of an imputation of dishonesty could be supported, because it was reasonably possible for the jury to take the view that the article was saying that the plaintiff was attempting to induce the public to part with good money when all they were going to see was a hopeless mismatch or farce or absolute shambles; or, to use the plaintiff’s language, “The public are being treated as suckers”. If the jury took that view, the article said that the plaintiff had acted dishonestly; and hence that he was a dishonest man. The defendant submitted that the ordinary reasonable reader could not draw any such inference from the word “sucker” in the headline by itself, and nothing in the article supported the inference. It could not be said that the fighters were mismatched to an extreme degree, because paragraph 25 stated that Chavez’ challenge to Tszyu was mandatory: he was “ranked No 1” after Tszyu.

22 The defendant also submitted that to read the article as imputing dishonesty was impermissibly to draw an inference from an inference. It referred to Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 where Hunt CJ at CL said at 167:

“It is necessary to emphasise the important distinction between an implication and an inference. An implication is included in and is part of that which is expressed by the publisher. It is something which the reader (or listener or viewer) understands the publisher as having intended to say. An inference is something which the reader (or listener or viewer) adds to what is stated by the publisher; it may reasonably or even irresistibly follow from what has been expressly or impliedly said, but it is nevertheless a conclusion drawn by the reader (or listener or viewer) from what has been expressly or impliedly said by the publisher …
An inference is drawn from an inference when the reader, listener or viewer draws an inference which is available in the matter complained of and then uses that inference as a basis (at least in part) from which a further inference is drawn. The publisher is held responsible for the first of those inferences but not for the second because … it is unreasonable for the publisher to be held so responsible.”

The defendant submitted that to read the article as saying that the public was invited to pay good money to see a mismatch was to draw an inference from the article. To read it as saying that the defendant was behaving dishonestly was to draw an inference from that inference, and to draw an inference that the plaintiff was a dishonest man was a further inference. The defendant could not be responsible for the latter two inferences. The last step is an inference because it moves from a statement that the plaintiff has done one dishonest act in life to a statement that he is of general dishonest character.

23 The defendant pressed its submission about inferences more strongly as the oral argument went on, and concluded that the plaintiff’s position depended on a long chain of inference on inference. One was that the plaintiff was representing that the fight would be of a certain quality. Another was that the plaintiff’s representation was a representation to the public. Another was that the representation was false because the fight was not of that quality. Another was that the plaintiff knew the representation to be false. Another was that the representation led the public to pay money to the plaintiff. Another was that that amounted to obtaining money by false pretences, and that that was the charge on which the plaintiff should be arrested. “There aren’t two inferences there, there are half a dozen”.

24 The defendant also submitted that to make the last move from one relatively small act of dishonesty to a broad imputation of dishonest character was only exceptionally permissible and was perverse in this case.

The plaintiff’s oral argument

25 Counsel for the plaintiff said in oral argument that he had put to the jury that the article suggested that the plaintiff was “cheating the fans and the public by arranging a hopelessly one-sided fight”.

26 The plaintiff submitted that “dishonesty” had a wider meaning than the defendant had suggested. He referred to Windeyer J’s observation in O’Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166 at 177:

“Dishonesty does not necessarily mean cheating or fraud. It may denote other forms of improbity – conduct that is dishonourable because not straightforward but designed to serve an unworthy end. In whatever sense it is used, it is a defamatory word.”

27 Counsel for the plaintiff also referred to dictionaries. From the Shorter Oxford English Dictionary he extracted the following meanings: “Entailing dishonour or disgrace; dishonourable shameful …”; “Not straightforward or honourable, underhand; now fraudulent, knavish …”. He referred to the definition of “dishonour” as “The reverse of honour; the withholding of honour due to anyone; a state of shame or disgrace; ignominy, indignity.” He pointed out that the Macquarie Dictionary said “dishonest” meant “not honest” and “honest” was defined as including the following meanings: “honourable in principles, intentions, and actions; upright”, “showing uprightness and fairness”, “creditable” and “virtuous”. He quoted the following definitions of “sucker” from the Cassell Dictionary of Slang: “the victim of any kind of crooked plan” and “a dupe”.

28 The plaintiff then pointed out that the article conveyed a suggestion that the supposedly genuine fight was so illegitimate that the American authorities were refusing to permit it to go ahead, and hence that it was not genuine and the promoter of it was not honest. He drew attention again to the fact that the article said that the only thing to benefit from the fight would be the bank accounts of Tszyu and the plaintiff.

The defendant’s oral argument in reply

29 The principal point made by the defendant in reply, apart from dealing with some general features of the law relating to imputations, was that Windeyer J in O’Shaughnessy v Mirror Newspapers Ltd did not mean to say that all forms of conduct designed to serve an unworthy end were dishonest, only that some were.

The written arguments after the oral hearing

30 There was some oral argument directed to this question: if a jury finds a general imputation and finds it defamatory, is the judge in dealing with the second stage of the case and in assessing damages in particular entitled to read the imputation down or otherwise assess its defamatory impact by reference to the context afforded by the publication out of which the imputation arose? On 6 August 2002 the plaintiff filed a brief written submission after the close of oral argument contending that the answer to the question was “Yes”. The defendant then responded on 13 August 2002. To some extent the defendant’s written submissions dealt with that question and contended that the answer was “No”.

31 It is not necessary to resolve this question for the purposes of deciding the present appeal. It may arise at a later stage of the case.

32 But the defendant’s written submissions of 13 August 2002 went beyond that particular question. They attributed to the plaintiff the following argument: “although the imputation is general in form it is to be rendered more specific by reference to the specific allegation in the publication and thus rescued from a finding that it is incapable of arising.” In truth the plaintiff was not advancing that argument. But in meeting that supposed argument the defendant, inter alia, referred to three “basic propositions”. The second and third relate to questions about whether imputations in general terms can be justified by single incidents or acts not referred to in the publication, and are not directly in point, but the first proposition was advanced as follows:

“First, as a general proposition a publication which talks about a specific incident is incapable of supporting an imputation of general application: Boyd v Mirror Newspapers [1980] 2 NSWLR 449, at page 455F, Warren v Tweed Shire Council [2002] NSWSC 211 at para 20 per Levine J and Strasberg v Westfield Limited [2002] NSWSC 689 at para 4 per Levine J. See also Penton v Calwell (1945) 70 CLR 219, at p 226 per Dixon J in relation to a ‘general charge of untruthfulness’.
If (as the appellant submits) the present publication is to be characterised as referring only to a specific incident, namely the organisation of the bout, it is incapable of supporting an imputation that the plaintiff is dishonest which is an imputation of general application.”


Depending on the meaning and extent of this “basic proposition”, it may be fatal to the plaintiff’s case.

Conclusion

“Sucker punch”

33 The defendant’s reliance on the dictionary definition of “sucker punch” fails. If the headline stood alone, the argument might have some force. But read as a whole, the article does not suggest that Tszyu will defeat Chavez by an unorthodox punch which succeeds by surprise; nor does it suggest that anyone will defeat anyone else in that way; nor does it suggest that the money to be made out of the fight will be made that way. Rather, the money will be made by influencing those who pay the money into parting with it on the faith of the fact that it will be a genuine fight when it will not really be a fight at all. Hence when the headline is read in the context of the article as a whole, its force turns not on the meaning of “sucker punch”, but on the meaning of “sucker” as urged by the plaintiff.

Does the imputation have any foothold in the article?

34 The article conveys the following statements.

35 First, by promoting the fight, the plaintiff, as promoter, is holding it out to all interested persons as a real or genuine contest.

36 Secondly, the proposed “fight” is a total mismatch, wholly lacking any genuine or legitimate character as a contest. It is so one-sided that there is likely to be a “slaughter” (paragraph 3), and Chavez will be “slaughtered” (paragraph 44). The Nevada Athletic Commission refused to license the fight because of the possibility that Chavez “might get seriously hurt” (paragraph 16), and its director saw it as raising questions about his “health and safety” (paragraph 17). Further, not only did the Commission Vice-Chairman see it as “a potential mismatch” (paragraph 18), the US National Association of Boxing Commissions questioned its “legitimacy” (paragraph 19). The President of that body said it did not merit even the title “world championship” (paragraph 20) and did not appear “a competitive match-up” (paragraph 20). He questioned how Chavez could be “ranked No 1 challenger” (paragraph 21). That question is supported by various considerations: Chavez’s failure to fight as a super lightweight since 1998; his defeat by Wise, who was not ranked in the top ten and who had been “violently” knocked out by Taylor in two rounds some years ago – so violently “he was quivering like a fish on a river bank”; his defeat in his last three title fights; and the fact that his last victory was only over Smith, an unknown (paragraphs 9-12 and 21-25). He is a “faded legend”; he is fighting Tszyu “three years too late”; at the age of 37 he is “as finished as a fighter can ever be”; he is in a field where one can “grow old overnight” and lose skill “suddenly”; he is only a “stiff”; and the fight is “no longer viable” (paragraphs 3, 5, 8 and 30). Chavez is of such questionable fitness that the Nevada Athletic Commission ordered an independent fitness test (paragraph 29). His preparation, in contrast to that of Tszyu, is a matter of guesswork (paragraphs 37-38). Fenech has seen him blind drunk a week and a half before a fight (paragraphs 39-42), and the boxing commissions of America have heard or seen similar stories (paragraph 43). In this regard the defendant’s submission that the fight cannot be a mismatch because Chavez is the No 1 challenger – the second best fighter after Tszyu – is fallacious: the article gives reasons for questioning how Chavez ever came to be ranked No 1 challenger.

37 Thirdly, professional fighting in general and this fight in particular is about money. It is a world in which geese may lay golden eggs but also die (paragraph 1). Money is made by those who are “the greatest draw” (paragraph 6). Where contestants are appropriately matched, fighters can get “a big-dollar purse and world recognition” (paragraph 7), a fight between them can be “a money spinner” (paragraph 26), and an individual fighter can be “the great money spinner” (paragraph 35). Fights benefit the bank accounts of boxers and their managers, though if they are real fights they benefit others as well (paragraph 28). The “smart thing” for good boxers to do as their careers begin to “close” is to choose “bigger pay days” (paragraph 31). Indeed, Chavez was once “the great money spinner in the lighter weights” (paragraph 35).

38 Fourthly, the money which will be generated out of the fight will be paid by those who pay it for something which is worthless and not of any “legitimacy”.

39 Fifthly, the promotion of the fight merits condemnation in terms of legal and moral opprobrium. The promoter should be arrested (paragraph 2). Chavez “shouldn’t” be sent to the slaughter (paragraph 3). The fight has led to a “stink” in America, with intervention from, and criticisms as to its genuineness and legitimacy, from various United States boxing authorities (paragraphs 4-5, 15-21 and 29). Chavez “should … not [be] slaughtered” (paragraph 44). The fight “should be stopped” (paragraph 45).

40 Sixthly, the language used about the plaintiff – both in content and tone – suggests that he was aware of the principal matters of fact which make it just to criticise him. To that extent, the article conveys a judgment of “dishonesty” even in a narrow sense of that word. The article suggests that the plaintiff knew that he was promoting the fight as genuine, knew that it was not genuine, knew that the fight can only have been designed to generate money for Tszyu and himself, knew that the persons paying the money will be paying for something which is worthless, and knew that the fight should not be held. The elements of dishonesty stem from the fact that the fight is represented to be a genuine contest but is in fact no contest at all; the fact that once Chavez would have been a match for Tszyu but is no longer; the fact that once Chavez was the “greatest draw” and the “great money spinner” among boxing’s lighter weights but now no longer deserves to be regarded as either. While the article in places withholds an attribution to the plaintiff of the full knowledge about these things which the author claims for himself (“Vlad Warton doesn’t seem to know it”, “Tszyu’s career path is currently being plotted by Braille”, “At least the Americans have caught on”), for the most part it states matters which must have been known to a person like the plaintiff, the manager of Tszyu and the promoter of the fight, being a person who is in a very good position to know. For example, the reader would take from the article the fact that the plaintiff must know of Tszyu’s record, Chavez’s record and the record of persons who fought Chavez recently: those are things which the promoter of a fight between two fighters must know. Further, the plaintiff must know the attitude of the Nevada Athletic Commission in refusing to license the fight for fear or injury to Chavez – indeed the article says that the plaintiff issued a press release confirming that the fight had been postponed for two weeks while the Nevada Athletic Commission forced Chavez to undergo an independent fitness test. The article says so often and so strongly that the fight will be hopelessly one-sided as to suggest that this fact is so notorious that the plaintiff must be aware of it. The impression that the article is contending that the article is aware of the principal reasons why the fight is not a fight is strengthened by the language of moral criticism which it employs and the assertion that the plaintiff should be arrested. In the context of the circumstances described in the article, the plaintiff could not be arrested merely for bad management, incompetence or heartlessness. He could only be arrested for obtaining money by deception (which would be dishonesty in the sense preferred by the defendant). If he deserved to be arrested for obtaining money by deception, obviously he himself would be aware of the facts justifying an arrest on that charge.

41 The result, then, is that so far as the defendant contended that there is no material in the article supporting the proposition that the plaintiff has done a dishonest act in the sense of the word “dishonest” urged by the defendant, the argument fails. The article alleges that, while the promoter is unable to see all that the writer asserts, the promotion of the fight is extracting money from potential payers of money to the benefit of Tszyu and the promoter by staging a spectacle which is, at least to the knowledge of the promoter by the time the article was published, not what it purports to be, namely a genuine fight. Each of the elements of that allegation is anchored in various parts of the article. In any event, the article alleges “dishonesty” in some of the wider meanings relied on by the plaintiff: the article suggests conduct on the part of the plaintiff which is not straightforward, which is dishonourable, disgraceful or underhand, and which is not creditable or virtuous. These adjectives all apply to the making of money by risking the health of one boxer in exposing him to a battering at the hands of a much better boxer.

Are there inferences on inferences?

42 So far as the defendant contended that even if conclusions of the type just described flow from the article, they flow only as inferences, and that the defendant is not responsible for most of them because they are inferences on inferences, that contention fails. To some degree the defendant’s argument suggested that the whole human scheme is acrawl with inference. Much human reasoning and discourse does depend on a process of inference on inference. But that process of reasoning would not have been called for on the part of ordinary reasonable people reading this newspaper article. None of the things described above which the article communicates depends on a process of inference. The statement that the promoter is promoting an apparently genuine fight rests on nothing but the article. The statement that the skills of the fighters are such that the fight is not genuine is not inferred from the first statement but rests on particular language in the article. The same is true of the statement that the generation of money in professional boxing is important. It is also true of the statement that those who pay money in relation to this fight will pay for something worthless. It is also true of the statement that the promoter’s conduct merits opprobrium. And, finally, it is true of the statement that the plaintiff has knowledge of important parts of the above list.

43 For example, to say that the only thing the fight will benefit is Tszyu’s bank account, and thereby the plaintiff’s, is to make a statement that those who make payments in relation to the fight will get no benefit from their payments. The reader does not have to draw an inference from anything to apprehend that proposition. And the statement that the fight will be extremely one-sided – a “slaughter” – rests on the terms of the article not on an inference from some other inference. If one combines those two statements, it can be seen that the article is stating that anyone who is paying money in relation to the fight is being misled into paying money in relation to something which is not really a fight because it is so one-sided. To read that in the article does not depend on any process of inference. And to characterise that statement as a statement that the plaintiff is doing something dishonest is not to draw an inference, it is merely a characterisation of the state of affairs described together with other matters stated.

44 A process of characterisation in the light of several statements is not necessarily a process of inference. A reader who concluded that the plaintiff had carried out and was continuing to carry out a dishonest act in the respects described above would be characterising a state of affairs having several features, not inferring that characterisation from those features. To “infer” is to derive a conclusion from something known or assumed by a process of reasoning. The assignment of a certain character to an act after being told a list of characteristics which summarise the character of that act is not drawing an inference from that list of characteristics: it is merely to state the nature of that act in another way. The statement of that character is, in Hunt CJ at CL’s sense, an “implication”: it is included in and is part of that which is expressed by the defendant. It is not an inference because it adds nothing to what the reader would understand the defendant as having intended to say.

45 There is an element of inference in concluding from the fact that the plaintiff had carried out and was continuing to carry out the particular dishonest act described that the plaintiff was a dishonest person. But that is the only element of inference in arriving at the imputation pleaded by the plaintiff. It is an inference because to have acted dishonestly once is not the same thing as having a dishonest character.

Is it perverse to infer from the plaintiff’s dishonest act his dishonesty of character?

46 The defendant’s contention that even if the article stated that the plaintiff had behaved dishonestly in organising the fight, it was perverse to infer that he was a dishonest man rested on a contrast between the narrowness of what could be collected from the article and the extreme breadth of the imputation. The contention fails.

47 It is necessary to deal at the outset with the defendant’s first “basic proposition” advanced in its written submissions of 13 August 2002, namely “as a general proposition a publication which talks about a specific incident is incapable of supporting an imputation of general application”.

48 In the first case cited for it, Boyd v Mirror Newspapers Ltd [1982] 2 NSWLR 449 at 455, Hunt J had under consideration an imputation: “that the plaintiff had so allowed his physical condition to degenerate that he was a hopeless second row forward in first grade rugby league.” Hunt J said:

“Secondly, the defendant complains that the imputation is expressed in general terms, and that it should be restricted to the plaintiff’s performance in the particular game in which he played for Manly against South Sydney and which is the subject of the article. In most cases , of course, a description of one specific incident is incapable of supporting an imputation expressed in terms of general application: Bishop v Latimer [(1861) 4 LT (NS) 775]. This is a principle which I discussed in Singleton v John Fairfax & Sons Ltd [(Hunt J, 20 February 1980, unreported)]. The principle might have been relevant in this case had the plaintiff’s performance in the South Sydney game been criticized upon the basis that it demonstrated a loss of form by the plaintiff on that occasion. But the criticism here is not restricted to the plaintiff’s performance lacking form. It says that his performance was bad because he lacked condition. Condition of the order here described is not something which comes and goes in the space of one week, and the plaintiff is, in my view, justified in expressing his imputation in the general terms in which it is expressed, without restricting it to the particular game which is the subject of the article.” (emphasis added)

49 In Penton v Calwell (1945) 70 CLR 219, Dixon J, sitting in the original jurisdiction of the High Court, was dealing with a newspaper article which said of the plaintiff that he had told one particular lie. It also said: “Some time ago we libelled Mr Calwell deliberately. We do so again by saying that he is maliciously and corruptly untruthful; in other words a dishonest, calculating liar.” The issue with which Dixon J was concerned was posed thus at 224-225:

“Under the amended particulars of justification, the defendant now picks out some specific parts of the statements ascribed to the plaintiff, and says with more particularity wherein they were contrary to fact, and alleges in each case that the statements were made by the plaintiff knowing them to be untrue, or without honest belief in their truth. The instances, however, cover a period of time extending from November 1941 to the date of publication of the libel three yeas later, and cover a great number of independent matters. As the defendant construes the libel, it may be necessary for him to establish that the plaintiff is an habitually untruthful person. The plaintiff himself, however, has, by his counsel, contended before me upon the present summons that this is not the true meaning of the libel set out in the statement of claim which, according to his construction, contains a charge of untruthfulness on a specific occasion and in relation to a specific matter.
The first question for my determination is, therefore, whether the defendant’s construction may be placed upon the libel.”

50 Dixon J resolved the question in the following way at 226:

“It is clear enough that the words complained of do contain a specific charge of untruthfulness in relation to the question of censorship with reference to the escape of Japanese prisoners at Cowra. But, in my opinion, the words complained of are capable of a further meaning, namely, a meaning that charges the plaintiff with more frequent, or even habitual, mendacity. Whether the words bear the meaning is a matter for the jury. If the jury give that meaning to them, a plea of justification would not be made out except by proof of the truth of the words in that sense. I think that the reference to a previous deliberate libel upon the plaintiff and the paragraph, not included in the statement of claim, referring to lies spoken under the privilege of parliament are enough to enable a jury to say that a general charge of untruthfulness is contained in the words ‘We do so again by saying’ &c.”

51 In Warren v Tweed Shire Council [2002] NSWSC 211 the publication sued on criticised a draft “Species Impact Statement” prepared for the use of the Council. Imputation 4(a) was “that the first plaintiff was incompetent as an environmental consultant”. Levine J struck it out for the following reasons:

“As to imputation 4(a) it is bad in form. It fails to specify the act or condition, that is, what constituted the incompetence. The matter complained of is very specific in its criticism of the draft SIS. The imputation does not specify the manner in which it is said the first plaintiff (assuming the matter to have been published of him) is alleged to have been incompetent. For that reason it will be struck out.
I would add that I would otherwise not be persuaded of the capacity of the matter complained of to carry this imputation. The matter is directed to the draft SIS and not its author. The author of the draft SIS is not described in any way in the matter complained of, let alone as ‘ an environment consultant’ . The generality of such an imputation is incapable of being carried further in circumstances where the matter complained of refers only to one specific item of work.”

52 In Strasberg v Westfield Ltd [2002] NSWSC 689 the relevant imputations were:

“4(a) The plaintiff dresses in such an inappropriate manner that complaints were made against her.
(b) The plaintiff dressed in such a provocative manner that complaints were made against her.
6(a) The plaintiff dressed in such an inappropriate manner that she caused complaints.”

53 Levine J said at [3]-[4]:

“The defendant does not object to these imputations save to the extent that they might be understood to impute a general condition as opposed to an incident specific act. It is contended that the difficulty with these imputations would be overcome if each was amended to read: ‘ The plaintiff was dressed …’
… The publications complained of are ‘incident specific’ and are incapable of supporting any imputation as presently drawn which lends itself to characterisation as an imputation of general application ( Singleton v John Fairfax and Sons Ltd , Hunt J, unreported, 20 February 1980; Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 455F; Warren v Tweed Shire Council [2002] NSWSC 211 at [20] per Levine J).”

54 In view of the fact that the decision of Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, 20 February 1980, unreported, Hunt J) has been referred to by Hunt J and by Levine J, it is convenient to note it. Hunt J described the background as follows:

“Both the plaintiff and his companion are reported to have been charged on two counts, with assaulting police and with resisting arrest.”

55 Six imputations were pleaded. The first was “(a) That the Plaintiff was a homosexual.” Hunt J said (page 5):

“Next, it is submitted by the defendant that an allegation of one action by the plaintiff which is capable of imputing some homosexual tendencies cannot amount to an allegation that the plaintiff was a homosexual. The imputation of being a homosexual, it was said, involved some consistent course of conduct which could not be based upon one incident only. I do not think that the common understanding of the word is so limited. In any event, it is not so clearly an untenable claim that it should be struck out.”

56 The defendant’s first “basic proposition” was that “as a general proposition” a publication dealing with a specific incident is incapable of supporting a general imputation. So put, the proposition is consistent with a concession by counsel for the defendant during oral argument that an imputation of a particular piece of dishonesty can support an imputation that the plaintiff is dishonest, “depending upon the precise way it arises”. The contention in oral argument was only that here the particular piece of dishonesty alleged did not support the imputation. As the concession suggests, propositions which are “general” admit of exceptions in particular circumstances. The existence of exceptions is supported by what Hunt J said in Boyd v Mirror Newspapers Ltd, where the principle was described as applying in “most cases”, but not all. That case is an illustration of an exception to the general rule alleged. Incidentally, Bishop v Latimer, to which Hunt J referred, does not in fact support the proposition asserted by Hunt J: rather, as the defendant’s written submissions of 12 August 2002 say, it supports the second “basic proposition”, that an imputation in general terms cannot be justified by proof of a single incident.

57 The passage from Dixon J’s judgment in Penton v Calwell does not support the defendant’s argument. It is a decision on the common law, not the statutory system turning on “imputations” which exists in New South Wales. So far as it is applicable, it indicates that a general charge of untruthfulness can be communicated by general words. It does not deal with the question whether a general charge of untruthfulness can be communicated by an allegation of untruthfulness in one specific incident.

58 The language of Levine J in Warren’s case and Strasberg’s case was not directed to any absolute or universal proposition which could assist the defendant. It dealt only with the incapacity of the specific incident referred to in each case to support a general imputation.

59 Finally, Singleton’s case is not adverse to the plaintiff. It is an illustration of how one incident can support a general imputation – or at least how an allegation of a general imputation based on one incident was not so clearly untenable that it should be struck out before trial.

60 Hence the defendant’s first “basic proposition” is not a bar to the plaintiff’s success. The first “basic proposition” merely calls for close and careful attention to the specific circumstances with a view to determining whether the specific conduct alleged in a particular case, unlike specific incidents alleged in other cases, can support a general imputation. Here it does.

61 The article does not suggest that the plaintiff’s act is other than an isolated act of dishonesty, but it does suggest that it is a most serious act of dishonesty. It involved gambling with one man’s health (that of Chavez), exploiting another man’s reputation (that of Tszyu), doing it only for money, doing it in a way which was attracting great criticism in America, both among the public and the authorities which regulate boxing, and doing it in a manner justifying the arrest of the plaintiff. While a person can do a dishonest thing without being thought a dishonest person, some things are so dishonest that one can infer that only a dishonest person would do them. The activities attributed to the plaintiff in the article are so extensive, serious and risky that it is open to ordinary reasonable readers to infer that only a dishonest person would have done them.

Orders

62 The following orders are proposed:

1. Extend the time for filing the Summons for Leave to Appeal to the date of filing.

2. Leave to appeal granted subject to the Notice of Appeal being filed within 14 days.

3. Appeal dismissed with costs including the costs of the respondent’s Notice of Motion of 12 September 2001.

63 HODGSON JA: I agree with Heydon JA.

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