Ron Woodham v John Fairfax Publications Pty Ltd

[2005] NSWSC 1204

Reported Decision: (2005) Aust Torts Reports 81-822

New South Wales

Supreme Court

CITATION:	Ron Woodham v John Fairfax Publications Pty Ltd [2005] NSWSC 1204
HEARING DATE(S):	17.08.05; 18.08.05
JUDGMENT DATE :	2 December 2005
JUDGMENT OF:	Nicholas J
DECISION:	Paras 66, 67

CATCHWORDS:	Defamation - pleading - plaintiff’s imputations - contextual imputations - Polly Peck interstate defences - whether defendant’s imputations available - whether contextual truth and Polly Peck defences should be struck out
LEGISLATION CITED:	Defamation Act 1974 s 9(1), (2), (4); 16; Supreme Court Rules Pt 67, r 11(2), (3)
CASES CITED:	Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206 Allen v John Fairfax & Sons Ltd [NSWCA, 2 December 1988, Unreported] Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Feros v West Sydney Radio Pty Ltd [NSWCA, 22 June 1982, Unreported] John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133 McBride v ABC (2000) NSWSC 747 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 Polly Peck (Holdings) plc v Trelford [1986] QB 1000 Robinson v Laws [2003] 1 Qd R 81 Singleton v John Fairfax & Sons Ltd [NSWSC, 20 February 1980, Unreported] David Syme & Co Ltd v Hore-Lacey (2000) 1 VR 667 Waters v John Fairfax Publications Pty Ltd [2005] NSWSC 394
PARTIES:	Ron Woodham - plaintiff John Fairfax Publications Pty Ltd - defendant
FILE NUMBER(S):	SC 20101/03
COUNSEL:	R Glasson - plaintiff T Blackburn SC/R Lancaster - defendant
SOLICITORS:	Greg Walsh & Co - plaintiff Freehills - defendant

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Nicholas J

2 December 2005

20101/03 Ron Woodham v John Fairfax Publications Pty Ltd

JUDGMENT

1 His Honour: By his notice of motion filed 8 March 2005 the plaintiff seeks orders pursuant to SCR Pt 15, r 26 that the contextual imputation defences under s 16 Defamation Act 1974 (the Act) and the interstate defences under the principles in Polly Peck (Holdings) plcv Trelford [1986] QB 1000 be struck out.

Background

2 The plaintiff claims damages for the publication by the defendant of an article under the heading “The Jungle Inside” in the edition of the magazine “Good Weekend” of 19 October 2002 in New South Wales and the other States and Territories of Australia. On 24 September 2004 the jury in the s 7A trial found the following imputations (or imputations not substantially different from them) as pleaded in para 4 of the further amended statement of claim:

“4(a) The Plaintiff, as Commissioner of the Department of Corrective Services, by his hardline policies and harsh tactics, instilled a brutal attitude towards inmates in his correctional officers.
…
(c) The Plaintiff, as a senior prison officer, requested a witness in a Supreme Court case to lie in relation to an allegation about the police and guards drinking on an exercise conducted by the police and guards.
…
(f) The Plaintiff corruptly handled prison informants”.

3 Relevantly, in its further amended defence the defendant pleads in respect of publication in New South Wales the defence of contextual truth afforded by s 16 of the Act in the following terms:

“4.
1(c) Further and in the alternative:
(1) the matter complained of in its natural and ordinary meaning conveyed the following imputations of and concerning the plaintiff (the Contextual Imputations):
(A) the plaintiff, as a senior prison officer, requested a witness in a Supreme Court case to lie in relation to an allegation about the police and guards drinking on an exercise conducted by the police and guards;
(B)(1) the plaintiff, as a senior prison officer, requested a prison officer, who had received a serious gunshot wound during a hostage training exercise, to lie about the manner in which the injury had been received;
or, in the alternative to (B)(1):
(B)(2) the plaintiff, as a senior prison officer, requested a prison officer, who had received a serious gunshot wound during a hostage training exercise, to acquiesce in a lie about the manner in which the injury had been received;
(C)(1) the plaintiff, as a senior prison officer, requested a prison officer, who had received a serious gunshot wound during a hostage training exercise, to lie about what had happened;
or, in the alternative to (C)(1):
(C)(2) the plaintiff, as a senior prison officer, requested a prison officer, who had received a serious gunshot wound during a hostage training exercise to acquiesce in a lie about what had happened;
(D) the plaintiff, as a senior prison officer, acted dishonestly in his handling of a prison informant.
(2) each of the Contextual Imputations:
(A) was published contextually to each of imputations 4(a), 4(c) and 4(f) (the Plaintiff’s Imputations), each of which relates to matters of public interest or was published under qualified privilege;
(B) is a matter of substantial truth;
(C) relates to matters of public interest or was published under qualified privilege;
(3) by reason of the substantial truth of any one or more of the Contextual Imputations, such of the Plaintiff’s Imputations as are not found to be matters of substantial truth did not further injure the reputation of the plaintiff”.

4 It will be seen that contextual imputation (A) is identical to the plaintiff’s imputation 4(c). During the hearing the defendant was given leave to amend each of the imputations B(2) and C(2) by adding after the word “acquiesce” the words “ … that is to go along with”.

5 In addition, the defendant pleads the same contextual imputations in its Polly Peck defence with respect to publication in Victoria, South Australia, Western Australia, the Northern Territory, (para 4, II(c)), the Australian Capital Territory (para 4, III(c)), Queensland (para 4, IV(c)), and in Tasmania (para 4, V(d)). In each of paras 4, II(d), 4, III(d), 4, IV(d), and 4, V(e) it is pleaded, in the alternative, that by virtue (sic) of the substantial truth of any one or more of those imputations, the plaintiff’s reputation was not further injured by such of the plaintiff’s imputations as are not found to be substantially true.

6 The plaintiff seeks to strike out the contextual truth defence on grounds, firstly, that the matter complained of is not reasonably capable of conveying any contextual imputation other than (A) and, secondly, that none is “another imputation” within the meaning of s 16 in that (B)(1), (B)(2), (C)(1), and (C)(2) do not differ in substance from the plaintiff’s imputation 4(c), or from each other, and that (D) does not differ in substance from the plaintiff’s imputation 4(f).

7 Alternatively, if the challenge to the contextual truth defence fails, the plaintiff seeks to strike out the Polly Peck defences on the basis that they are not available where the defendant’s imputations differ in substance from the plaintiff’s imputations.

8 Of direct relevance to the issue of capacity is the following passage in the matter complained of when read with the remainder of the article:

“In 1985, Woodham was the senior prison officer at a gung-ho hostage training exercise for police and guards in the Hunter Valley were a prison officer, Roger Cumming, who had assumed the role of a hostage, was shot and seriously injured. The resulting Supreme Court case heard allegations of drinking by the men involved in the exercise, and Cumming claimed Woodham had asked him to lie about what had happened. While the Corrective Services Department admitted liability, Woodham denied asking Cumming to lie.
In 1993 the ALP, then in Opposition, called for Woodham, then an assistant commissioner with Corrective Services, to be sacked after an Independent Commission Against Corruption report labelled him corrupt over his handling of prison informants. The ICAC finding was later overturned by a Supreme Court judge who ruled the ICAC was “wrong in law”.

9 The following observations and propositions are relevant to issues in these proceedings concerning the plaintiff’s imputations, the contextual imputations, and the Polly Peck interstate defences.

A plaintiff’s imputation

10 The plaintiff is required in pleading the imputation relied upon to specify the act or condition which he claims was attributed to him by the matter complained of with sufficient precision as to avoid the likelihood of confusion in relation to the meaning for which he contends. (Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255, paras 119-130).

11 Because in New South Wales the imputation is the plaintiff’s cause of action to which the publisher must separately plead, it is not merely a particular of a meaning to be claimed at the trial, as is the case in common law jurisdictions. At trial the plaintiff is confined to the pleaded imputation and cannot seek a verdict on an imputation with a substantially different meaning. However, he may rely upon as many imputations as he desires provided they differ in substance from each other. He may not roll-up a number of separate and independent defamatory assertions into one imputation. (Section 9(1), (2), (4) of the Act; SCR Pt 67, r 11(2), (3); Feros v West Sydney Radio Pty Ltd [NSWCA, 22 June 1982, Unreported]; Harvey; Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519, paras 19, 24, 139).

12 Necessarily, the plaintiff’s imputation comprehends imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations of meaning of substantially similar imputations. (SCR Pt 67, r 11(3); Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, p 771; Chakravati paras 24, 60, 139). In Morosi (p 771) it was stated:

“The purpose of (… SCR Pt 67, r 11(2), (3)) is not so to confine a plaintiff that, unless the precise imputations pleaded are found, he will fail, any more than it is to impose on a defendant an obligation to justify precisely those imputations, or to fail. Rule 11(3) precludes the practice, formerly prevalent, of pleading many shades and gradations of substantially similar imputations”.

(See also: Jones v John Fairfax Publications Pty Ltd [2005] NSWSC 1133 per Simpson, J para 55).

13 For a long time it has been the practice in New South Wales (which was followed in this case) for the jury in a 7A trial to be asked whether the plaintiff has established that the matter complained of, in its natural and ordinary meaning, conveyed to the ordinary reasonable reader (or viewer, or listener) the plaintiff’s pleaded imputations, or imputations not substantially different from them. Thus a finding for the plaintiff necessarily includes the finding that the matter complained of conveyed meanings which are not different in substance from the pleaded imputations. Such a finding is binding on the parties in respect of publication in New South Wales and interstate.

The contextual imputations

14 Section 16 of the Act provides 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”.

15 A contextual imputation should be pleaded by the defendant with the same precision as is required for the plaintiff’s imputation. (McBride v ABC (2000) NSWSC 747 per Levine, J paras 54-56).

16 The defence was explained in Allen v John Fairfax & Sons Ltd [NSWCA, 2 December 1988, Unreported] by Hunt, J (pp 7-9) in these words:

“The defence of contextual truth afforded by s16 accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence is available to the cause of action based upon that imputation. It asserts that the imputations pleaded by the defendant (the contextual imputations) are also conveyed by the matter complained of and that, even though the plaintiff's imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant's contextual imputations upon the plaintiff's reputation that the publication of the imputation of which he complains did not further injure his reputation (in the sense that it did not cause additional injury to that reputation.)

The nature of this defence was considered in Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 36 at 38-40 and in Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 395-401, 405. As pointed out in those cases, it is basic to the scheme of s16 that the defendant's contextual imputations must be conveyed by the matter complained of at the same time as an in addition to the imputation of which the plaintiff complains and that the defendant's contextual imputations must differ in substance from the plaintiff's imputations to which they are pleaded. There is, however, no need for the defendant's contextual imputations themselves to differ in substance one from the other, as long as their combined effect differs in substance from the plaintiff's imputation to which they are pleaded. Unless both parties' imputations are conveyed at the same time to the same ordinary reasonable reader, the jury will be unable to weigh or to measure the relative worth or value of the imputation or imputations for which each party contends, as the section requires. I do not need to repeat the discussion of those particular propositions in the cases cited.

The following issues arise for the judge in relation to a defence of contextual truth:

(1) Whether the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) differs in substance from the plaintiff's imputations to which it is or they are pleaded as a defence.

(2) Whether the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) is or are capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which it is or they are pleaded as a defence.

(3) Whether the nature of the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) is or are such that its or their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's reputation that the plaintiff's imputation to which it is or they are pleaded did not further injure that reputation.

(4) Whether there is evidence upon which the jury could find that the contextual imputation or imputations is or are substantially true.

(5) Whether the contextual imputation or imputations relates or relate to a matter of public interest or whether it was or they were published under qualified privilege.”

and he said (p 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”.

and he said (p 13):

“There will, of course, be a number of problems for the defendant to overcome where (as in the present case) the two imputations involved are more directly related to the same subject matter. It will obviously be more difficult for the defendant to establish that the two differ in substance and even more difficult for the defendant to establish that they were both conveyed at the same time to the same ordinary reasonable reader. If the two imputations are true alternatives (in the sense that they have been expressed merely in differing degrees of seriousness), an adoption by the reader of one usually means the exclusion of the other: Foord v John Fairfax and Sons Ltd (Hunt J, 27 February 1987, unreported) at 31-32; there is nothing which disputes that proposition in the judgments of the Court of Appeal, as I understand them: John Fairfax and Sons Ltd v Foord (1988) 12 NSWLR 706”.

17 His Honour went on to point out that a preliminary question may arise (as in this case) as to whether the contextual imputations are capable of being conveyed by the matter complained of at the same time as, and in addition to, the plaintiff’s imputation. Put another way, the questions are whether it is reasonably open to the tribunal of fact to find that the ordinary reasonable reader would have understood the matter complained of to convey at the same time both the plaintiff’s imputation and the defendant’s contextual imputation(s).

18 In John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 consideration was given to the proper construction of the words “another imputation” in s 16(1). Spigelman, CJ said:

“16 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.)
…
19 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.
20 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”.

Hodgson, JA and Ipp, JA confirmed that “another imputation” within s 16(1) was one which arises at the same time as, and is different in substance from, the plaintiff’s imputation.

Polly Peck interstate defences

19 The relevant passage from Polly Peck is at p 1032, where O’Connor, LJ said:

“In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different to that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true and give particulars of the facts and matters on which he relies in support of his plea as he is required to by Ord 82. It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain.
Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification.
Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once gain is fortuitous that what is in fact similar fact evidence is found in the publication”.

20 In John Fairfax Publications Pty Ltd Hodgson, JA said (para 80):

“80 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”.

21 An issue in this case is the effect of the second proposition. Since Chakravarti there have been a number of decisions in Australian courts which have taken a narrower approach than was taken in Polly Peck to the meaning which the defendant may plead and justify which differs from the meaning pleaded by the plaintiff.

22 In David Syme & Co Ltd v Hore-Lacey (2000) 1 VR 667 Ormiston, JA (paras 21, 22) said that where the jury has found the plaintiff’s imputation or one not substantially different or more serious, a defendant should not need to, nor be permitted to, plead or rely on a meaning other than one which is not more serious and otherwise is not substantially different. Charles, JA (paras 53, 54) said that the defendant would not be unfairly prejudiced if it were limited to pleading and justifying a meaning which was sufficiently close to a meaning for which the plaintiff might himself obtain a verdict on the pleadings as they stand.

23 In Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 the approach was similar to that taken by the majority in David Syme. Steytler, J (paras 59, 60) said:

“… However, the extent to which a defendant will be permitted to plead defamatory meanings different from those pleaded by the plaintiff will be constrained by the extent to which the plaintiff might himself or herself be permitted to rely, at the trial, upon imputations other than those pleaded by him or her.
No purpose can be achieved by allowing a defendant to plead, and seek to justify, a meaning different from that or those which might be found by a jury in favour of the plaintiff”.

24 In Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206 Doyle, CJ concluded his analysis of recent Australian decisions, including David Syme, with the statement (para 72):

“72. I doubt whether the propositions formulated by Charles JA are inconsistent with the observations of Brennan CJ and McHugh J in Chakravarti about pleading a Polly Peck defence, because to the extent that a plaintiff may be permitted to depart from the meaning pleaded, fairness requires that the defendant be permitted to anticipate and deal with the alternative meaning. In that context the expression “alternative meaning” is something of a misnomer. An alternative meaning that can be pleaded and justified by the defendant can be no more than a shade or nuance of the meaning pleaded by the plaintiff, and so in substance (as it seems to me) the alternative meaning must be close to or the same as the meaning pleaded by the plaintiff”.

He went on to say:

“76. Once the plaintiff pleads a meaning on which the plaintiff relies, that pleading will identify the meaning of which the plaintiff complains, and delimit the boundaries within which the action is to be fought. Although it is the publication of the defamatory material that is the tort, the function of the pleading is to identify the field of inquiry at the trial.
77. It appears to be generally accepted that once the plaintiff has pleaded the meaning on which the plaintiff relies, the plaintiff will not be entitled to seek a verdict on a different imputation. On that all members of the High Court agreed in Chakravarti . That is subject to the qualification that another defamatory meaning might be relied on by the plaintiff, when it is a mere shade or nuance of meaning, provided that the defendant suffers no prejudice, embarrassment or unfair disadvantage as a result: Brennan CJ and McHugh J at [24] – [25], Gaudron and Gummow JJ at [60] and Kirby J at [139] subparas 3 and 4.
78. Accordingly, there can be no unfairness to the defendant in not allowing the defendant to justify a meaning that, because it differs from the meaning pleaded by the plaintiff, the plaintiff would not be permitted to advance a trial. That is what the Judge has decided here.
79. While on the question of the ability of the plaintiff to depart from a pleaded imputation, I record my agreement with the following observation made by McLure J in Nationwide News at [94]:
“On my reading of the reasons in Chakravarti , disadvantage to the defendant is an additional limiting factor on the extent to which a plaintiff can depart from his pleaded imputations not a factor that is intended to widen the plaintiff’s (and in turn the defendant’s) opportunities to depart from them”.
…
81. The latitude that the principle stated in Polly Peck allows will lead to defendants re-stating defamatory imputations at higher levels of generality, then seeking to justify the more general imputation by evidence that does not bear directly on the matter of which the plaintiff complains. On that point it is pertinent to recall the observation by Gleeson CJ in Drummoyne Municipal Council v ABC (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”.
82. For these reasons, as a matter or principle, as a matter of fairness and having regard to the public interest in the efficient conduct of a trial, the law as stated by O’Connor LJ in Polly Peck should not be applied in this State. A preferable approach is that adopted by Charles JA in Hore-Lacy at [53] and [54]”.

25 The distinction between a contextual truth defence and a Polly Peck defence was recently explained by Simpson, J in Jones in which she said:

“51 In Polly Peck it was made clear that under the principles there stated a defendant may not do what s16 of the Act explicitly permits a defendant to do in NSW: that is, rely upon publication of an imputation different in kind or in substance from that sued upon by the plaintiff, and, by justifying that other imputation, showing that publication of the plaintiff’s imputation did not further injure the plaintiff’s reputation. At p 1032 of Polly Peck O’Connor LJ wrote:
“Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification.”
52 What Polly Peck permits a defendant to do is to identify such alternative meanings as it would have been open to the plaintiff to rely upon (even if the plaintiff has not done so) and seek to justify those meanings. This is really a way of saying that the defendant may identify and justify shades and gradations of the imputation(s) pleaded by the plaintiff, but may not defend the claim by identifying and justifying imputations of a different character: Dr Manock v Advertiser News-Weekend Publishing Co Ltd [2004] SASC 164 at [54]. Or, on the Polly Peck approach, a defendant may identify a “common sting” of a publication and seek to justify that sting. Or the defendant may take issue with the meaning attributed to the words in the publication by the plaintiff and seek to establish that the words published bear a different meaning and that in that meaning, the words are true. In the paragraph immediately preceding that just extracted, O’Connor LJ also wrote:
“In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff. The defendant is entitled to plead that in that meaning the words are true ...”
53 What the defendant may not do under Polly Peck is to identify a defamatory imputation or imputations additional to, or “separate and distinct” from, that or those attributed to the publication by the plaintiff, and seek to justify that imputation or those imputations. Yet that is precisely what s16 permits a defendant in NSW to do.
54 Put another way, and using language more familiar in the NSW defamation law, what Polly Peck permits a defendant to do is to seek to justify an imputation or imputations not different in substance from that or those pleaded by the plaintiff ...
55 This leaves no room in NSW for the application of Polly Peck principles. Just as a plaintiff may rely upon the different shades and gradations of meanings in imputations so long as those shades and gradations do not differ in substance, so, too, may a defendant seek to justify the various shades and gradations of meaning of those imputations”.

With respect, I agree with her.

26 One may well wonder whether Lord Justice O’Connor could ever have anticipated that for two decades gallons of ink would be spent in judicial and academic analysis of his judgment in Polly Peck to no certain conclusion. Greater certainty should follow the enactment of the proposed uniform defamation legislation which affords a defence of contextual truth in all jurisdictions. This legislation is likely to be the death knell for Polly Peck in Australia.

The contextual imputations

27 The plaintiff accepted that the defendant is entitled to plead contextual imputation (A) back to his imputations 4(a) and (f).

28 The plaintiff submitted that contextual imputations (B)(1), (B)(2), (C)(1), and (C)(2) are not reasonably capable of arising from the matter complained of and that none is “another imputation” within the meaning of s 16 of the Act.

29 I turn first to the question whether the matter complained of is reasonably capable of conveying (B)(1) and (C)(1), with regard to the well-known principles applicable to a capacity issue on a strikeout application.

30 The relevant passage in the matter complained of is:

“In 1985, Woodham was the senior prison officer at a gung-ho hostage training exercise for police and guards in the Hunter Valley were a prison officer, Roger Cumming, who had assumed the role of a hostage, was shot and seriously injured. The resulting Supreme Court case heard allegations of drinking by the men involved in the exercise, and Cumming claimed Woodham had asked him to lie about what had happened. While the Corrective Services Department admitted liability, Woodham denied asking Cumming to lie”.

31 Imputation (B)(1) alleges that the plaintiff requested a prison officer to lie about the manner in which the injury had been received, whilst (C)(1) alleges the plaintiff requested him to lie about what had happened. In my opinion the imputations are reasonably capable of arising from the publication and the defendant’s submissions on this question should be accepted.

32 In my opinion, the passage identified is plainly capable of leaving the ordinary reasonable reader with the impression that what had happened on the occasion described involved several separate events and circumstances which included, but was not necessarily limited to, the shooting and injury of prison officer Roger Cumming in the course of the training exercise, and drinking by the men involved in it. The statement that “… Cumming claimed Woodham had asked him to lie about what had happened” is couched in terms wide enough to suggest that the plaintiff requested Cumming to lie generally about all that had happened on the occasion, alternatively, specifically about the manner in which the injury had been received, and/or about drinking by the men involved in the exercise.

33 As to whether each of (B)(1) and (C)(2), if found to arise, is “another imputation” within s 16(1), I am satisfied that each differs in substance from the plaintiff’s imputation 4(c). It is self-evident that the lie the subject of the request alleged to have been made by the plaintiff is different in each case, and justification is likely to involve different factual considerations (cf: Singleton v John Fairfax & Sons Ltd [NSWSC, 20 February 1980, Unreported] per Hunt, J p 6).

34 I am also satisfied that it is reasonably arguable that each of these imputations are capable of being conveyed by the matter complained of at the same time and in addition to imputation 4(c). In my view it cannot be said that it is not possible for the ordinary reasonable reader to understand the publication in terms of imputation 4(c) consistently with an understanding in terms of (B)(1) and (C)(1). It is, therefore, properly left to the trial judge to determine whether the ordinary reasonable reader would have so understood the publication, and whether (B)(1) and (C)(1) is each another imputation for the purposes of s 16.

35 The pleaded alternatives to (B)(1) and (C)(1) are the following:

“(B)(2) the plaintiff, as a senior prison officer, requested a prison officer, who had received a serious gunshot wound during a hostage training exercise, to acquiesce in, that is to go along with, a lie about the manner in which the injury had been received;

(C)(2) the plaintiff, as a senior prison officer, requested a prison officer, who had received a serious gunshot wound during a hostage training exercise, to acquiesce in, that is to go along with, a lie about what had happened”.

36 The defendant’s submission on the issue of capacity, as I understood it, was that the passage relied upon is capable of suggesting that the plaintiff as the senior prison officer at the exercise pressured his subordinate, Roger Cumming, “… to close ranks and to participate in a whitewash” (T p 40). It was put, that understood in this way, the words support the notion that the conduct ascribed to the plaintiff was limited to requesting his subordinate to acquiesce in, or to go along with a lie about the manner in which the injury had been received, or about what had happened.

37 In my opinion the words relied upon by the defendant, read in context, provide no support whatever for imputations (B)(2) and (C)(2). In my judgment, the reader who understood the publication in terms of these imputations would not be a person of fair average intelligence possessed of the attributes of the ordinary reasonable reader described in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, (p 165). Such a reader would be a person who simply ignored or failed to grasp the plain and ordinary language of the publication.

38 The publication alleges, without qualification, that the plaintiff had asked Mr Cumming to lie about what had happened. It then reports that he denied asking Mr Cumming to lie, thereby effectively reinforcing the publisher’s repetition of Mr Cumming’s claim that he did. Nothing in the publication provides any rational basis for concluding that it meant anything less serious than, or different in substance from, an allegation that the plaintiff had asked Mr Cumming to lie.

39 Accordingly, I hold that contextual imputations (B)(2) and (C)(2) are not reasonably capable of being conveyed by the matter complained of, and should be struck out. Furthermore, on the assumption that the matter complained of is reasonably capable of conveying these imputations, in my opinion neither is reasonably capable of being conveyed at the same time and in addition to imputation 4(f) so as to be “another imputation” within s 16(1) (Allen, p 12). In the circumstances I find that it is not reasonably open to the trial judge to hold that either (B)(2) or (C)(2) is another imputation within s 16(1).

40 The plaintiff challenged imputation (D) on grounds that it is incapable of arising, alternatively, that it is not another imputation within s 16(1) in that it does not differ in substance from plaintiff’s imputation 4(f).

41 The terms of these imputations are:

“4(f) The Plaintiff corruptly handled prison informants”.
“(D) the plaintiff, as a senior prison officer, acted dishonestly in his handling of a prison informant”.

42 The relevant passage of the matter complained of is:

“In 1993 the ALP, then in Opposition, called for Woodham, then an assistant commissioner with Corrective Services, to be sacked after an Independent Commission Against Corruption report labelled him corrupt over his handling of prison informants. The ICAC finding was later overturned by a Supreme Court judge, who ruled the ICAC was “wrong in law”.

43 The defendant submitted that the matter complained of is reasonably capable of conveying (D). I accept that submission.

44 The real question is whether it is open to rely upon it as a contextual imputation for the purpose of a defence under s 16. It was submitted that in the context of this publication the assertion of dishonest conduct is to say something different in substance from corrupt conduct as alleged in 4(f), although the defendant accepted that an allegation of corruption inevitably conveys an allegation of dishonesty (T p 42). In reliance upon Singleton, it was put that the defendant might justify the allegation of dishonesty in (D) by proof of facts different from those necessary to justify the allegation of corruption in 4(f), a consideration indicative of the difference in substance between them.

45 The defendant also put that where, as in this case (further amended defence para 4, I(c)(2), (3)), the contextual truth defence pleads the combined effect of contextual imputations to each of the plaintiff’s imputations it is inappropriate pre-trial to determine whether a particular contextual imputation differs in substance from a plaintiff’s imputation. In effect, as I understood it, the submission was that because the trial judge under s 16(2)(c) is required to measure the injurious effect of the contextual imputations in combination against each of the plaintiff’s imputations the real question is whether there is a difference in substance between the contextual imputations considered in combination and a particular plaintiff’s imputation (T pp 49, 50), and that such question should properly be left for the trial.

46 The last mentioned submission may be dealt with briefly. In my opinion it is misconceived, and must be rejected. It overlooks the requirement under s 16(1) that a contextual imputation for the purposes of the section is another imputation made by the same publication which is contextual to the plaintiff’s imputation. Before the weighing exercise under s 16(2)(c) takes place it is necessary that the defendant’s imputations have been found to be contextual imputations within s 16(1). Obviously, the question under s 16(1) is a threshold question to be determined before any question under s 16(2) can arise.

47 In my opinion, also, the defendant’s primary submission should not be accepted. I am unpersuaded that the ordinary reasonable reader could rationally discern from the words complained of, read in context, any available distinction in substance between imputations 4(f) and (D), or that he would understand (D) to be conveyed at the same time and in addition to 4(f). In my opinion, to adopt the words of Spigelman, CJ in John Fairfax Publications Pty Ltd (para 16), in substance (D) is nothing more than an alternative way of formulating 4(f), based on exactly the same words in the matter complained of and applying those words in exactly the same way. The allegation in 4(f) is a general allegation that the plaintiff corruptly handled prison informants. The allegation in (D) that he acted dishonestly in handling a prison informant refers to a particular act which, in my view, would be understood as an inseverable part or aspect of the general charge made in 4(f). This is to take a common sense approach to an understanding of the publication which is expected of the ordinary reasonable reader. (cf: John Fairfax Publications Pty Ltd, Hodgson, JA paras 80, 91, 101; Ipp, JA para 111).

48 Furthermore, 4(f) is to be taken to include imputations not substantially different from it, including those which are less injurious, as well as shades and gradations of similar imputations (Morosi). In the circumstances of this case, the jury’s finding that 4(f) was conveyed by the matter complained of must be taken to comprehend a finding of an imputation in terms of (D).

49 Accordingly, I find that (D) is not reasonably capable of satisfying the requirement for another imputation under s 16(1) of the Act, and should be struck out.

The interstate defences

50 In the interstate defences under Polly Peck the defendant has pleaded the same imputations as it did in the contextual truth defence in respect of publication in New South Wales. Imputation (A) is identical to 4(c). I have found (B)(1) and (C)(1) are imputations different in substance from, and additional to, the plaintiff’s imputations, including 4(c), for the purposes of s 16. I have found (D) is capable of arising but is comprehended in, and not different in substance from, 4(f). I have found that (B)(2) and (C)(2) are not reasonably capable of arising.

51 The plaintiff submitted that under Polly Peck a defendant is precluded from pleading and justifying imputations which differ in substance from the plaintiff’s imputation(s). It was put that the defendant is confined to such additional imputations which are variants or nuances of, or less injurious than, the plaintiff’s imputation(s). It was argued that the approach to be taken in deciding whether or not a defendant’s imputation is substantially different from a plaintiff’s imputation is the same as that taken in New South Wales in deciding whether the plaintiff’s imputations differ in substance from each other. It was submitted that an imputation which is a contextual imputation under s 16 is one separate and distinct from the plaintiff’s imputation and, therefore, outside the ambit of alternative imputations available to the defendant under Polly Peck. It follows that, on my findings in this case, (B)(1) and (C)(1) should be struck out from the interstate defences.

52 In respect of the defence to publication in Queensland in para 4, IV(c) and (d) the plaintiff submitted that following Robinson v Laws [2003] 1 Qd R 81, in which the Supreme Court of Queensland, Court of Appeal held that it was not open to a defendant in Queensland to plead a defence in accordance with the decision in Polly Peck, I should strike out the defence in this case.

53 The defendant submitted that, in deciding whether the defendant’s imputation was different in substance from the plaintiff’s imputation, the court should take a more liberal approach than that ordinarily taken in deciding whether for the purposes of New South Wales pleading requirements the plaintiff’s imputations differ in substance from each other. It was submitted that statements in Chakravarti, David Syme, and Manock indicate that in the common law jurisdictions the scope permitted to the defendant to plead imputations which would not be held to differ in substance from the plaintiff’s imputation is considerably wider than that permitted to the plaintiff in New South Wales to plead more than one imputation. In short, it was submitted that in New South Wales a narrower test is applied in deciding whether or not the plaintiff’s imputation is a nuance or variation of, or less injurious than, another imputation than is applied in deciding the same question in respect of the defendant’s imputation for the purpose of a Polly Peck defence. It was put that (B)(1), (B)(2), (C)(1), and (C)(2) shared a common sting with, and were sufficiently close in meaning to, 4(c) as to entitle the defendant to plead and justify them.

54 With respect to the Queensland defence the defendant formally submitted that I should not follow Robinson, and suggested that the decision does not preclude a defendant from relying upon a meaning within the limits described in David Syme and Manock.

55 It is convenient to turn first to the Queensland defence in para 4, IV(c) and (d). By its decision in Robinson the Court of Appeal held that the Polly Peck defence is not available in Queensland. The statements of de Jersey, CJ (para 44) and Williams, JA (para 94) to that effect are unqualified, and are not to be understood as admitting of exception where the defendant’s imputations are less serious than, or nuances or shades of, meaning of the plaintiff’s imputations. There is no reason for me not to follow the decision in this case. Accordingly, I propose to order that para 4, IV(c) and (d) be struck out.

56 The questions raised by the plaintiff require consideration of the components of each remaining Polly Peck defence as pleaded. Paragraphs 4, II(c) and (d), 4, III(c) and (d) and 4, V(d) and (e) replicate para 4, I(c) and (d) which is in the standard form for a defence under s 16. In my opinion the pleader has included in these paragraphs matter which is inappropriate under a Polly Peck defence, and otherwise is a source of embarrassment and delay so as to attract the application of Pt 15, r 26(1) as explained in the following paragraphs.

57 A Polly Peck defence is one of justification of an alternative meaning not substantially different from the plaintiff’s meaning (e.g. Jones para 52). It follows, in my view, that the pleading of (A) which is an imputation identical, and not alternative, to 4(c) should not be allowed. In any event, justification to 4(c) is separately pleaded. I propose to order that (A) be struck out of these defences.

58 Further, as Simpson, J in Jones (para 51) pointed out, Polly Peck does not permit a defendant to do what s 16 explicitly permits a defendant to do in New South Wales, namely to show that, by reason of the truth of an imputation which is substantially different from the plaintiff’s imputation, the publication of the plaintiff’s imputation did not further injure his reputation. For the purposes of these defences it is simply not relevant to consider the seriousness or impact on the plaintiff of the defendant’s justified imputations. (Manock para 48). Accordingly, I propose to order that sub-para (d) of 4, II and III, and sub-para (e) of 4,V be struck out.

59 As I have found (B)(2) and (C)(2) to be incapable of arising I propose to order that they be struck out of these defences.

60 I have found that (B)(1) and (C)(1) differ in substance from 4(c). Necessarily, I have found that they are neither imputations comprehended in, nor close to or the same as, 4(c) (Manock para 72, David Syme para 22, 53). The consequence of these findings is that each is separate and distinct from 4(c) and therefore is unavailable to the defendant under the Polly Peck defences (Jones para 53).

61 I am not persuaded by the defendant that a different approach is to be taken in deciding the question of “substantially different from” for the purpose of a Polly Peck defence to the approach taken in New South Wales in respect of the plaintiff’s imputations. The verbiage used in, e.g. Chakravarti (paras 24, 60, 139) including “nuance”, “less serious”, “variant”, “shades”, referable to a Polly Peck imputation is identical to that used in, e.g. Morosi (p 771) referable to the plaintiff’s imputations. Indeed, in Manock (paras 63, 64, 81, 82) Doyle, CJ describes the approach taken in Chakravarti, David Syme, and other cases as a good deal narrower than the approach taken in Polly Peck.

62 Accordingly, I propose to order that (B)(1) and (B)(2) be struck out of these defences.

63 I have found that (D) does not differ in substance from 4(f). Therefore, in my opinion, it is available to the defendant for the purpose of the remaining interstate defences.

Particulars of mitigation of damages

64 In para 5 of the further amended defence the defendant pleaded particulars of facts and matters relied upon in mitigation of damages. These included the statement that the defendant will rely upon the substantial truth of “… each of the contextual imputations and/or each of the defendant’s imputations …”. The plaintiff asked that these particulars be struck out. In Waters v John Fairfax Publications Pty Ltd [2005] NSWSC 394, I held that evidence of the truth of imputations other than the plaintiff’s imputation(s) is irrelevant on any issue of mitigation, and ordered that similar particulars be struck out as embarrassing and unfairly prejudicial to the plaintiff. I decline the defendant’s invitation not to follow that decision in this case.

65 Accordingly, I propose to order that the words “… each of the contextual imputations and/or each of the defendant’s imputations …” and “contextual truth” in para 5 of the further amended defence be struck out.

Conclusions

66 I rule that each of the contextual imputations (B)(1) and (C)(1) in para 4, I(c)(1) further amended defence:

(a) differs in substance (both alone and in combination) from the plaintiff’s imputation 4(c);

(b) is capable of being conveyed by the matter complained of; and

(c) is so capable of being conveyed at the same time as, and in addition to, the plaintiff’s imputation 4(c).

67 I make the following orders:

(1) That imputations (B)(2), (C)(2), and (D) in para 4, I(c)(1) be struck out.

(2) That imputations (A), (B)(1), (B)(2), (C)(1), and (C)(2) in paras 4, II(c)(1), 4, III(c)(1), and 4, V(d)(1) be struck out.

(3) That paras 4, II(d), 4, III(d), and 4, V(e) be struck out.

(4) That para 4, IV(c) and (d) be struck out.

(5) That the words “… each of the contextual imputations and/or each of the defendant’s imputations …” and “… contextual truth …” in para 5 be struck out.

(6) That these proceedings be stood over to the defamation directions list 9.30am 5 December 2005 when further pre-trial directions may be attended to and, failing agreement, submissions on the question of costs may be made.

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