Pryor v Latham

[2015] NSWSC 529

Supreme Court

New South Wales

Medium Neutral Citation:	Pryor v Latham [2015] NSWSC 529
Hearing dates:	1 May 2015
Date of orders:	08 May 2015
Decision date:	08 May 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Imputations (c) and (d) struck out. Imputations (a), (b) and (f) ruled to be capable of arising from the matter complained of.
Catchwords:	DEFAMATION – procedure – pleadings – objections to imputations – rulings as to the capacity of the matter complained of to convey the imputations pleaded by the plaintiff – consideration of the ordinary reasonable reader’s understanding of the discourse of gender politics
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 14.30, 28.2
Cases Cited:	Jackson v Fairfax [1981] 1 NSWLR 36
Category:	Procedural and other rulings
Parties:	Lisa Pryor (Plaintiff) Mark Latham (First Defendant) Fairfax Media Publications Pty Ltd (Second Defendant)
Representation:	Counsel: M Richardson (Plaintiff) T Blackburn SC (Defendants) Solicitors: Kennedys (Plaintiff) Banki Haddock Fiora (Defendants)
File Number(s):	2015/94242
Publication restriction:	None

Judgment

1. HER HONOUR: This is an action for defamation arising from the publication of an article written for the Australian Financial Review by Mr Mark Latham, a former leader of the Federal Australian Labor Party and now a regular columnist. The article was published under the headline “Why left feminists don’t like kids” and focused on an earlier article written in the Sydney Morning Herald by the plaintiff, Ms Lisa Pryor, also a regular columnist. According to Mr Latham’s piece, Ms Pryor had said in her article that the only way she can cope with “raising two small children while studying medicine full-time” is through “caffeine and anti-depressants”. This was described as her standard answer to the question, “How do you do it all?”

2. Mr Latham’s article states that, after reading those remarks, he felt depressed himself “at the thought of a Fairfax columnist describing one of life’s great responsibilities, the raising of infant children, as requiring ‘neurochemical assistance’”. Mr Latham asked, rhetorically, “Why do people like this have children in the first place? How will the children feel when they grow up and learn that they pushed their mother onto anti-depressants?”

3. The article continues with a “broader political point” about “left feminist campaigning”, which Mr Latham contends has involved the demonisation of children. Invoking his own experience as the primary carer of his three children (in what might be termed something of a “fatherhood statement”), Mr Latham opines that inner-city feminists (of whom he is evidently not one) know little of the parenting joys he describes. He states, “more often than not, they don’t like children and don’t want to be with them. They use political feminism as a release valve, trying to free themselves from nature’s way”. In the context of the impassioned fatherhood statement, the reference to “nature’s way” is obscure.

4. Ms Pryor claims that Mr Latham’s article was defamatory of her.

Principles to be applied

5. In proceedings for defamation in this State, the plaintiff is required to specify each defamatory meaning (“imputation”) on which he or she relies: r 14.30 of the Uniform Civil Procedure Rules 2005 (NSW). That is an important task for a number of reasons, not least among which is the need for the defendant to be placed in a position to consider what defences can be relied upon to defend the action. Recognising the pivotal role of the meanings specified by the plaintiff in directing the future conduct of the proceedings, the Practice Note in this Court (SC CL 4) makes provision for any dispute as to the form of the imputations specified by the plaintiff, or as to whether the matter complained of is reasonably capable of conveying those imputations, to be determined at the first listing of the proceedings, before requiring the defendant to plead a defence. (The District Court has a similar practice: see Practice Note 6 District Court Defamation List, cl 12).

6. This judgment determines the issues raised by Mr Latham and Fairfax Media Publications at the first listing of Ms Pryor’s action; that is, whether the meanings specified by Ms Pryor in her statement of claim should (in due course) go to the jury when the matter comes on for trial. In the case of an objection that the imputation is not capable of being conveyed by the matter complained of, unless the parties say otherwise, the hearing of the objection ordinarily proceeds as the determination of a separate question under r 28.2 of the UCPR.

7. The test as to whether an imputation is capable of being conveyed (so as to be allowed to go to the jury at trial) is one of reasonableness: is the article reasonably capable of conveying the meaning contended for to the ordinary reasonable reader? While in a sense that is a narrow legal issue, it raises an important question as to the proper role of the jury (and the limit of the role of the judge) in defamation actions.

8. In specifying the defamatory imputations on which the plaintiff relies, the task for the pleader is to distil the act or condition allegedly attributed to the plaintiff by the article sued on. That is not an easy task in the present case. Without wishing to engage in feminist post-structuralist discourse analysis, each journalist (Mr Latham in his article and Ms Pryor in the comments attributed to her) offers a representation of gender roles in parenting by reference to the personal choices each has made in their own parenting, apparently seeking to defend those choices. The analysis of such discourse by reference to the construct of the ordinary reasonable reader entails a degree of artificiality.

9. There is authority for the proposition that the ordinary reasonable reader can be taken to know that a person accused of a criminal offence is presumed to be innocent. On that basis, an article that merely reports the fact that a person has been arrested, without more, will be held to be incapable of conveying the meaning that the accused person is guilty of that offence.

10. The ordinary reasonable reader’s understanding of the discourse of gender politics is less readily discerned. That is a consideration which dictates a cautious approach to the present application.

Imputations objected to

11. In her statement of claim, filed 30 March 2015, Ms Pryor contends that the article written by Mr Latham carries the following imputations:

1. The plaintiff, a woman and a mother, does not love her children.

2. The plaintiff is so bad a mother that she hates her own children.

3. The plaintiff publically professed her infant children to be evil and threatening.

4. The plaintiff suffers from a psychoneurotic disorder, a form of mental illness, in which she converts her own feelings of distress and deficiency into publically expressed hatred of her infant children.

5. The plaintiff is a coward who pops pills instead of facing up to her responsibilities as an adult and a mother.

6. The plaintiff callously claimed publicly that her infant children pushed her onto anti-depressants, knowing that they would one day learn of this claim.

12. The article was published in almost identical terms in the print edition of the newspaper and online. The defendants have taken objection to imputations (a), (b), (c), (d) and (f) on grounds of capacity and form. This judgment determines those objections.

Imputation (a): the plaintiff, a woman and a mother, does not love her children

13. Imputation (a) in the statement of claim is that “the plaintiff, a woman and a mother, does not love her children”. Mr Blackburn, who appears for the defendants, submitted that the imputation is bad in form and that it is not reasonably capable of arising.

14. The form objection focused on the inclusion of the phrase “a woman and a mother”. Mr Richardson accepted that the reference to the plaintiff being a woman added nothing, the critical issue being what the article says of her as a mother. The argument proceeded on the basis that the imputation would read, “the plaintiff, a mother, does not love her children”. Mr Blackburn maintained that the inclusion of a reference to the plaintiff as a mother is rhetorical flourish, the import of which is unclear.

15. Mr Blackburn submitted that the issue should be tested in the manner suggested by Hunt J in Jackson v Fairfax [1981] 1 NSWLR 36 at 41G, namely, by asking what the defendant would be required to prove in order to establish the truth of that imputation so far as it concerns the plaintiff. Whilst that is a useful test, its application does not assist the defendants in the present case. The simple answer is that, if the imputation is found to be conveyed and defamatory and is not otherwise defensible as honest opinion or on other grounds, the defendants would have to prove that Ms Pryor is a mother who does not love her own children. In my view, it is generally expected that a mother should love her children. To say a particular mother does not is to attribute an identifiable state of mind to her. It was not submitted that the imputation is incapable of being defamatory. That will be a question for the jury.

16. The capacity objection was based on the contention that the article can sensibly be divided into discrete parts, the first addressing Ms Pryor’s comments and the balance presenting a broader political point. The unstated premise of the argument is that the broader political point in some way distances itself from the undoubtedly critical references to Ms Pryor by reference to which it is introduced. While these will clearly be arguments that can be put to the jury, I think the article is at least capable of being read as attributing to Ms Pryor the conditions it attributes to “left feminists”. It should be left to a jury to determine whether it goes so far as to attribute Ms Pryor with the unmotherly state of mind identified (and whether to say that of a mother is defamatory).

Imputation (b): the plaintiff is so bad a mother that she hates her own children.

17. The defendants objected to imputation on the grounds of form and capacity. Mr Blackburn submitted that the imputation was unclear as to the precise sting the defendants are required to meet. In my view there was force in that complaint. Mr Richardson responded by proposing that the imputation be amended so as to read, “the plaintiff is a bad mother in that she hates her own children”. In my view, the proposed amendment cures the objection as to form.

18. As to whether the imputation is reasonably capable of being conveyed by Mr Latham’s article, I accept that it is an ambitious imputation. It is a considerable leap from identifying the plaintiff with the putative brand of feminists who “don’t like children”.

19. With some hesitation, I have nonetheless determined that this is an issue which should be left to the jury. For the reasons I have endeavoured to explain, I think it must be acknowledged that the matter complained of is capable of being read in the manner contended for in the imputation.

Imputation (c): the plaintiff publically professed her infant children to be evil and threatening.

20. Imputation (c) was said to arise as a result of the several references in the article to the “demonisation” of children by left feminists. The defendants submitted that those references cannot reasonably be understood to mean that Ms Pryor characterised her children as literally being demons. Mr Richardson acceded to the force of that submission and indicated that imputation (c) would not be pressed.

Imputation (d): the plaintiff suffers from a psychoneurotic disorder, a form of mental illness, in which she converts her own feelings of distress and deficiency into publically expressed hatred of her infant children.

21. The defendants submitted that imputation (d) is not reasonably capable of arising from the matter complained of. Mr Blackburn submitted that it is a meaning that could only arise in the imagination of someone other than the ordinary reasonable reader.

22. The reference to a psychoneurotic disorder is drawn from the concluding remarks of the article, as follows:

This left feminism is akin to a psychoneurotic disorder: externalising personal feelings of distress and deficiency into the demonisation of children.

This is why people in the suburbs, especially women, distrust the likes of Pryor. Their political agenda is seen as unrepresentative and self-serving. At a personal level, it’s also cowardly popping pills as an easy way out, instead of facing up to the responsibilities of adulthood.

23. As already indicated, I accept that the distinction sought to be drawn by Mr Blackburn between the introduction (concerning Ms Pryor) and the balance of article (the broader political point) is something of a false dichotomy. In my view, the article is reasonably capable of drawing Ms Pryor into the field of criticism directed at left feminists generally. However, in my view, no reasonable reader of the article could understand it to attribute an actual, specific psychiatric diagnosis to Ms Pryor personally; nor do I think the article can reasonably be understood to say that she publicly professed her hatred of her own children. If the article says Ms Pryor hates her children, that is a meaning which arises by way of inference from her being associated with the brand of feminism under attack, not as a result of anything she is alleged to have confessed or professed about herself. I do not think imputation (d) is reasonably capable of arising from the matter complained of.

Imputation (f): the plaintiff callously claimed publicly that her infant children pushed her onto anti-depressants, knowing that they would one day learn of this claim.

24. Finally, it was submitted that imputation (f) is not reasonably capable of arising. The focus of the objection was whether Ms Pryor knew that her children would one day learn of what she had said in her article. In my view, the rhetorical question posed by Mr Latham set out above (“how will the children feel when they grow up and learn…”) invites the reader to conclude that that is the inevitable result of Ms Pryor’s decision to address the issue of her own parenting in her newspaper column. In my view, imputation (f) is reasonably capable of arising.

Conclusion

25. My ruling as to the defendants’ objections is that imputations (a), (b) and (f) (as argued) will go to the jury (together with imputation (e), which was not the subject of any objection). Imputations (c) and (d) are struck out.

**********

Decision last updated: 15 May 2015