Ryan v Random House Australia Pty Ltd

[2015] NSWDC 31

District Court

New South Wales

Medium Neutral Citation:	Ryan v Random House Australia Pty Ltd [2015] NSWDC 31
Hearing dates:	24 March 2015
Date of orders:	24 March 2015
Decision date:	24 March 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Imputation 3(a), 3(f) and 3(o) will go to the jury. (2) Imputation 3(b) will go to the jury. (3) Note imputation 3(c) is withdrawn; strike out proposed imputation 3(c) with leave to replead. (4) Strike out from imputation 3(d) the words “the major organised crime figure of his day” but otherwise this imputation will go to the jury. (5) Note imputation 3(e) is withdrawn and grant leave to the plaintiff to replead this imputation as proposed, but deleting the words “the major organised crime figure of his day”; this amended imputation will go to the jury. (6) Noting the plaintiff withdraws the proposed repleading, imputation 3(g) will go to the jury. (7) Note in relation to imputation 3(h), the proposed second form of imputation 3(e), namely that “The plaintiff, Brian and Garry Boyd and Abe Saffron were involved in illegal casinos” does not differ in substance from imputation 3(h), and imputation 3(h) is the imputation the plaintiff selects to go to the jury. (8) Strike out imputation 3(i) with leave to replead so that this imputation will differ in substance from imputation 3(d). (9) Note that imputation 3(j) is withdrawn and grant the plaintiff leave to replead. (10) Imputation 3(k), subject to deleting the word “of”, will go to the jury. (11) Imputation 3(l) is struck out with leave to replead imputations to the effect that the plaintiff was reasonably suspected by Justice Don Stewart, the Royal Commissioner who headed the Royal Commission into The Age tapes, of involvement in: (a) forging documents; (b) conspiracy; and (c) misleading officers of the Department of Immigration (each to be a separate imputation). (12) Imputation 3(m) is withdrawn and struck out on the basis of capacity. (13) Imputation 3(n) is withdrawn and struck out. (14) Grant leave to the plaintiff to plead imputation 3(p): “The plaintiff was knowingly involved in a corrupt Sydney network of lawyers, politicians, crime figures, judges and racing identities in which, for a price, anything could be bought”; this imputation will go to the jury. (15) Costs of this application to be the defendant’s costs in the cause. (16) Plaintiff’s Amended Statement of Claim by Friday 27 March 2015. (17) Defendant’s objections by Thursday 9 April 2015. (18) Matter stood over for further directions or argument to Thursday 16 April 2015 at 2:00pm.
Catchwords:	TORT – defamation – imputations – form and capacity
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 60 Defamation Act 2005 (NSW), s 26 Defamation Act 2013 (UK) Uniform Civil Procedure Rules 2005 (NSW), r 14.30
Cases Cited:	Ainsworth v Burden [2000] NSWSC 105 Alex v Gridneff [2013] NSWSC 2025 Bateman v Fairfax Media (No 2) [2014] NSWSC 1380 C v L and Ors [2005] SASC 315 Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258 Cooke & Anor v MGN Limited [2014] EWHC 2381 Darbyshir v Daily Examiner Pty Ltd (Supreme Court of NSW, Levine J, 2 May 1997) Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 Fairfax Media Publications v Alex [2014] NSWCA 273 FieldturfInc v Balsam Pacific Pty Ltd [2003] FCA 809 Forrest v Askew [2007] WASC 161 Greenfield v Fairfax Media Publications Pty Ltd [2014] NSWSC 1940 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Hill v Westfield [2003] NSWSC 437 Holden Ltd and Ors v TTF Dandenong Pty Ltd and Ors [2004] VSC 175 King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244 Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 Singleton v Ffrench (1986) 5 NSWLR 425 Toben v Milne [2014] NSWCA 200 Wafawarova v Australian Broadcasting Corporation [2007] NSWSC 1212
Category:	Procedural and other rulings
Parties:	Plaintiff: Morgan Ryan Defendant: Random House Australia Pty Ltd
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendant: Mr R Potter Solicitors: Plaintiff: Brock Partners Defendant: Kennedys
File Number(s):	2015/61531
Publication restriction:	None

Judgment

Introduction

1. In FieldturfInc v Balsam Pacific Pty Ltd [2003] FCA 809, Finkelstein J made two points which are now widely accepted as important in case management. Firstly, he warned that “no one seriously suggests that the system of pleadings is adequate” in telling the opponent (or the court) what the case is about (at [6]) and, secondly, that when parties are unable to define the issues in dispute, the earlier the court intervenes, the better (at [11]; see also Holden Ltd and Ors v TTF Dandenong Pty Ltd and Ors [2004] VSC 175 at [7]). The circumstances giving rise to these proceedings demonstrate the former problem, and require the latter solution.

2. The matter complained of in these proceedings gives rise to particular difficulties by reason of the antiquity of events, the wide range of imputations available (not all of which are pleaded), and the informal language which no doubt results from these events having passed into Australian folklore over the past thirty years. The plaintiff, who turns 96 in September 2015, complains of references to his activities from approximately 1976 onwards, in events now generally referred to as “the Age Tapes” scandal, as set out in chapter 15 of “He Who Must Be Obeid”, a book about the circumstances in which Mr Obeid has come to be the subject of findings in the Independent Commission Against Corruption (“ICAC”).

3. The relevant portion of this publication, almost as colourful as the events it describes, starts by referring to a 1976 police undercover investigation which included phone-tapping Australia’s most notorious organised crime figures, Bob Trimbole, George Freeman and Abe Saffron. In the words of the matter complained of, these police “could not believe what they were hearing”, in that underneath the surface of Sydney society there was a “corrupt network of lawyers, politicians, crime figures, judges and the obligatory handful of colourful racing identities”, from whom, at a price, you could buy anything. The matter complained of states that the “nervous” editors of the Sydney Morning Herald were afraid to publish this “very Sydney story”, but the Age published this “explosive” material in February 1984. That material referred extensively to the plaintiff; among the “more sensational” material was evidence that a judge of the High Court had attempted to influence court proceedings in which the plaintiff (described by the High Court judge as “my little mate”) was involved. The plaintiff was described in police intelligence reports as “a go-between for major organised crime figures” and by the matter complained of as having had “a lot of fingers in some very grubby pies”. Excerpts from the confidential findings in Volume II of the April 1986 Stewart Royal Commission (footnote 11 to paragraph 12 of the matter complained of; Volume 1, the contents of which were not confidential, appears at are included in narrative of events of what the author calls the “national scandal” (paragraph 6 of the matter complained of) that then ensued.

4. Due to the plaintiff’s advanced years, I was requested to hear the defendant’s challenge to the imputations on an urgent basis. This resulted in a degree of informality in the conducting of the hearing. However, the plaintiff cannot expect the court to give him the indulgence of a speedy trial unless these proceedings are appropriately pleaded and particularised. If the plaintiff seeks an early hearing date, his legal representatives need to formulate the claim now, rather than make further applications for amendments of the kind that came before the court today.

5. The amendments to the plaintiff’s case since the statement of claim was filed are already substantial. The plaintiff, in submissions provided late last night, added a further four imputations to those already pleaded and reformulated others; further reformulations were proposed in the course of the hearing. As a result, I have made orders today on the basis that I would provide reasons for decision after having reviewed the many issues raised “on the run”, as well as the adequacy of the orders, as a result of the changing nature of the parties’ applications before me.

6. The defendant has taken a number of what may be described as technical objections to the form (and, in one case, the capacity) of the imputations, on the basis that the plaintiff must identify the imputations with precision, this still being a requirement of imputations pleaded in New South Wales by reason of r 14.30 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) notwithstanding the replacement of the imputation as the cause of action with the matter complained of (Bateman v Fairfax Media (No 2) [2014] NSWSC 1380 at [6] – [10]). I readily understand the defendant’s difficulty, in part because the events occurred long ago, and in part because of the difficulties it will encounter in pleading any defence of contextual justification under the poorly drafted s 26 Defamation Act 2005 (NSW). There is thus more than usual force in Mr Potter’s complaint that the linguistic ambiguities of the imputations mean that his client does not know how to justify the imputations. This will be an important feature of case management of this action generally.

7. The solution to disputes about the form and capacity of imputations is generally the time-honoured practice of applications to the court, requiring the plaintiff to redraft (sometimes several times) the imputations to which objections of form have been raised, interspersed with the usual applications for leave to appeal. This procedure was recently considered by Sackville AJA, in Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 at [24]-[25], in the context of the overriding case management provisions of the Civil Procedure Act 2005 (NSW). Refusing an application for leave to appeal from a decision of Bozic DCJ concerning the form and capacity of imputations, his Honour stated:

“[24] The decision of the primary Judge is properly characterised as an exercise of discretion on a point of practice or procedure, rather than a decision which affects substantive rights. The court is reluctant to grant leave to appeal from such a decision. The reason for that reluctance was given almost 70 years ago by Jordan CJ (Nicholas CJ in Eq concurring) in In re the Will of FB Gilbert (Dec’d) (1946) 46 SR (NSW) 318 at 323:

“In [cases of this kind], if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”

[25] Jordan CJ’s strictures are given added force by the direction in s 56(2) of the Civil Procedure Act 2005 (NSW) requiring the Court to seek to give effect to the “overriding purpose“ stated in s 56(1) when exercising any power conferred by the Act or the rules of court. That overriding purpose is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The significance of the overriding purpose in the conduct of litigation has recently been emphasised by a unanimous High Court: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 at [56]–[57]. The overriding purpose is as important in defamation proceedings as in other forms of civil litigation: Dennis v Australian Broadcasting Corporation at [29]–[31] (Spigelman CJ; Basten and Campbell JJA agreeing).”

8. The reason for the significance of these comments is that, in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303, a decision their Honours referred to in the extract above, the High Court also stated (at [39] – [40]):

“[39] Speaking of what the case management provisions in the CPR might mean for the conduct of litigation, in Jameel (Yousef) v Dow Jones & Co Inc the Court of Appeal explained that:

“It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice.”

Earlier, in Biguzzi v Rank Leisure Plc, Lord Woolf MR had doubted that authorities decided under the old procedure could continue to be binding or even persuasive.

[40] There are some examples of the application of a new approach by English Courts to case management. In Hertsmere Primary Care Trust v Administrators of Balasubramanium’s Estate, the claimants sent a letter of offer which did not technically comply with the CPR. The defendant’s lawyers realised the error and sought to take advantage of it at a later date in resisting a Calderbank style order for costs. Lightman J rejected the defendant’s submission that there was no duty on the part of its lawyers to cooperate and enable the claimants to rectify the error. His Honour said: “[t]hat may have been the law prior to the CPR, but it is not the law today.” (Footnotes omitted)

9. Principles of proportionality, as set out in s 60 Civil Procedure Act 2005 (NSW) and reflected in Practice Note No 6, should be a factor which should be taken into account when determining issues of form and capacity of imputations.

10. However, this is, at present, a factor of very limited compass. For example, I cannot adopt the more flexible approach to imputations taken in other jurisdictions in Australia. In particular, I cannot adopt the procedure under the Defamation Act 2013 (UK), although Mr Rasmussen has provided me with a copy of Cooke & Anor v MGN Limited [2014] EWHC 2381 and commended the course taken by the judge, as outlined at [6] – [19]. In Cooke, a separate trial on defamatory meaning and serious harm, the judge invited both parties to identify the imputations at the same time, and then decided which imputations are conveyed. This is contrary to the Australian practice of leaving it to the plaintiff to plead imputations, which are then challenged in a series of separate arguments, followed by arguments about contextual imputations and whether the plaintiff can adopt these, which arguments may now, according to Hibbert, continue up to the making of such an application to the trial judge. The likelihood that these proceedings will follow such a path seems inevitable, but there is no alternative procedure available.

11. The imputations initially pleaded, and as now amended, are set out below.

The imputations

12. The imputations pleaded in the statement of claim, as amended in the written submissions and/or during argument, are as follows:

1. The plaintiff is a go-between for major organised crime figures.

2. The plaintiff has a lot of fingers in very grubby pies.

3. The plaintiff used an alias, “Jim Brown”, to ring Garry Boyd at the Immigration Department to ask for favours – The plaintiff’s written submissions sought leave to amend to read: “The plaintiff misled officers of the Department of Immigration by calling Garry Boyd using an alias to ask him for favours”. The defendant challenged this revised form of pleading as well.

4. The plaintiff, Brian and Garry Boyd and Abe Saffron (the major organised crime figure of his day) were involved in an SP bookmaking ring.

5. The plaintiff, Brian and Garry Boyd and Abe Saffron (the major organised crime figure of his day) were involved in illegal casinos being run with police [sic] – The plaintiff in written submissions sought leave to split this into two imputations: (e)(i) “The plaintiff, Brian and Garry Boyd and Abe Saffron (the major crime figure of his day) were involved in illegal casinos”; and (e)(ii) “The plaintiff, Brian and Garry Boyd and Abe Saffron (the major crime figure of his day) paid police to protect the operation of their illegal casinos”. The defendant challenged these revised imputations as well.

6. The plaintiff and illegal gambling figure John Yuen conspired to give Labor strongman John Ducker a $50,000 bribe to influence the Wran Government to give a casino licence to Yuen who ran an illegal casino in Chinatown.

7. The plaintiff was involved with John Yuen in an immigration racket through which they were bringing in cheap Korean labour for construction giant Transfield – The plaintiff in written submissions sought leave to amend this imputation to read: “The plaintiff was involved with John Yuen in an immigration racket through which they were bringing in cheap Korean labour for construction giant Transfield”, but abandoned this formulation in oral argument.

8. The plaintiff, John Yuen, Abe Saffron and the Boyd brothers were involved in running illegal gaming venues in Dixon Street Chinatown.

9. The plaintiff, John Yuen, Abe Saffron and the Boyd brothers were involved in criminal activity with regard to SP betting activities.

10. The plaintiff, Abe Saffron and the Boyds were paying for police protection – The plaintiff in written submissions sought leave to replead this imputation as: “The plaintiff, Abe Saffron and the Boyds paid police to protect their SP Betting activities.”

11. The plaintiff dishonestly paid Garry Boyd monies to approve of [sic] applications for permanent resident status.

12. The plaintiff together with John Yuen, Brian Boyd and Garry Boyd and Robert England may have been involved in forging documents, conspiracy and misleading officers of the Department of Immigration – The plaintiff in written submissions sought leave to split this imputation into three separate imputations: (l1) “The plaintiff, together with John Yuen, Brian Boyd and Garry Boyd and Robert England may have been involved in forging documents”; (l2) “The plaintiff, together with John Yuen, Brian Boyd and Garry Boyd and Robert England may have been involved in a conspiracy”; and (l3) “The plaintiff, together with John Yuen, Brian Boyd and Garry Boyd and Robert England may have been involved in misleading officers of the Department of Immigration”. The defendant challenged these proposed amended imputations. In the course of argument, however, counsel for the plaintiff resiled from these proposals and sought to rely upon the original imputation.

13. The plaintiff falsely pretended that he could influence Neville Wran who was premier of New South Wales – In the course of argument, counsel for the plaintiff conceded this imputation could not be conveyed and sought leave to withdraw it.

14. The plaintiff was a business and financial associate of the Boyd brothers who were financially involved and did business with Eddie Obeid, a corrupt politician – In the course of argument this imputation was withdrawn.

15. The plaintiff is a criminal.

16. Although not pleaded in the statement of claim, the plaintiff sought leave to rely upon an additional imputation: “The plaintiff was knowingly involved in a corrupt Sydney network of lawyers, politicians, crime figures, judges and racing identities in which, for a price, anything could be bought.”

13. The defendant’s objections may be summarised from the correspondence as follows:

1. Imputations 3(b), 3(c), 3(e), 3(j), 3(m) and 3(n) fail to distil a defamatory act or condition of the plaintiff.

2. Imputation 3(k) “does not make sense”.

3. Imputations 3(d), 3(g), 3(h), 3(i) and 3(p) use the word “involved”, which is ambiguous (I note, however, that the matter complained of also uses the word “involved”, and objection in argument was thus restricted to its use in imputations (g) and (p).

1. The use of the phrase “may have” in imputation 3(l) is ambiguous and should not be permitted in pleadings: Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258 at [33]; Alex v Gridneff [2013] NSWSC 2025 at [25].

2. The original imputation 3(l) is rolled up, in that it refers to forgery, conspiracy and misleading officers of the Department of Immigration; the same objection is also made to imputation 3(e).

3. Imputations 3(e) and 3(h) do not differ in substance. The same objection is taken to imputations (d) and (i).

4. References to the names of other persons (and to Mr Saffron as “the major organised crime figure of his day”) are surplusage and should be removed.

5. The jury would have trouble understanding what an “SP bookmaking ring” (imputations 3(d) and 3(i)) was, and this should be rephrased or explained;

6. Imputation 3(m) is not capable of being conveyed. The form of imputation 3(m) is also objected to, in relation to use of the words “falsely pretended” and “influence”.

The requirement for precision for imputations in New South Wales

14. Mr Potter distils four principles arising from the relevant decisions:

1. The plaintiff is obliged to identify for the defendant the act or condition which was understood by the ordinary reasonable reader as having been attributed to him or her. If not, a defendant has no way of knowing whether he can plead various defences to the publication.

2. An imputation must be stated with such precision as to avoid the likelihood of confusion in relation to the meaning the plaintiff contends.

3. To be clear and precise, it is not often that this will be met by adopting the exact language of the publication. However, such words may be used where their meaning is clear.

4. Where a publication is vague and itself lacks specificity then a pleader can do no better than use the words of the publication. Hence a poster that says no more than “X is disgusting” can yield nothing more specific by imputation than the words used. The defamatory imputation must be related to the nature and content of the defamatory matter

15. These principles require pleading at a very high standard; would pleadings in other proceedings survive such scrutiny? There is no parallel scrutiny of words used in, for example, cases where misleading or deceptive language is used, or where particulars of contributory negligence are pleaded.

16. The first issue to determine is what is meant by the claim that an imputation is embarrassing because it fails to identify the “act or condition”, causing “confusion” and ambiguity. What words are ambiguous? The question of what words are ambiguous should not just be a matter of opinion, but a careful analysis of the meaning of the words, in the context of the matter complained of.

17. A word or phrase that is “ambiguous” generally connotes, according to the Oxford Concise Dictionary, more than one meaning. The Court of Appeal considered the issue of an “ambiguous imputation” in Fairfax Media Publications v Alex [2014] NSWCA 273 per McColl JA at [19] – [24], referring to Singleton v Ffrench (1986) 5 NSWLR 425. However, the imputation in Ffrench was genuinely ambiguous, in that it had two meanings. The plaintiffs were trustees for a fund for a quadriplegic, and the imputation in question was one of breach of trust. The defendants sought to call evidence, including expert evidence, that breach of trust in the legal sense had occurred, as opposed to the kind of breach of trust that might be connoted in general discussion. This decision is a good example of the need to consider the nature of the ambiguity concerned in the context of the publication.

18. The word “corrupt”, used in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, raises a meaning problem of a different nature, more akin to the “confusion” referred to by Mr Potter, in that the word has a series of “different shades” (at 138 per Gleeson CJ) of meaning, as well as being “notable for its generality and vagueness”. This word, again, is not a general example of the tendency of common words in the English language to be ambiguous, but an exception to the rule.

19. Is a word with a general and vague meaning ambiguous, or is it simply meaningless unless properly defined? The word “disgusting” is a term of generality, but Gleeson CJ considered (at 137) that a publication solely stating “X is disgusting” needed no further refinement in terms of the imputation pleaded.

20. Gleeson CJ’s explanation should resolve many arguments about the need for specificity. In Toben v Milne [2014] NSWCA 200 at [20] - [21] Beazley and Ward JJA explained:

“[20] The specificity with which an imputation must be pleaded was referred to by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137,where his Honour said:

“If a defendant has posted in a public place a sign that simply says ‘X is disgusting’, the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter.”

[21] Many of the disputes about ambiguity arise from the use of the words in the matter complained of. In 21 An imputation may plead or closely follow the exact words used in the alleged defamatory publication: see John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 201 ALR 77 at [63]. However, as Hunt AJA pointed out in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [126]:

“Merely pleading the words of the matter complained of as the imputation for which the plaintiff contends where those words do not adequately distil the act or condition attributed to the plaintiff, and thus identify his cause of action, is not a compliance with Pt 67 r 11(2).””

21. This brings me to the principal nature of the objections here, namely that where the words of the matter complained of are used in the imputation, only rarely should this be permitted, firstly because they cannot capture the sting, and secondly because the defendant’s words (not the words of the imputation) are ambiguous, and the meaning is therefore not sufficiently clear to support an imputation.

22. In Drummoyne, both Kirby JA (at 144 - 150) and Priestley JA (at 156) reiterated the correctness of Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682. In Hepburn, Hutley JA stated that “it is strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words it has used, so that it is embarrassed in justifying it.”

23. The question of whether a word or phrase is ambiguous, or imprecise, is not resolved by looking at the form of words used in the imputation in isolation, but of considering the imputation in the context of the matter complained of. If the use of the word or phrase in the matter complained of contains the sting, assertions of ambiguity due to the loose or colourful nature of the language, or because a metaphor or slang is used, must become difficult to maintain. In the present case, the simple and direct language of the matter complained of lends itself well to the formulation of imputations using the same or very similar words.

24. The interlocutory battle between the plaintiff who seeks to use words as close as possible to the matter complained of and the defendant who seeks words of a more distant import needs to be scrutinised in the context of what the publication says. Where the language of the matter complained of is colourful, in general terms and informal, as is the case here, calls for a greater level of specificity in the imputations than is contained in the matter complained of should be viewed with caution, as the very formality of the language required for the imputations may become a barrier for the tribunal of fact.

25. Having noted the parties’ respective submissions on these issues, I now consider the imputations in question.

Imputation 3(a), 3(f) and 3(o)

26. No objection is taken to these imputations and they will go to the jury.

Imputation 3(b)

27. Mr Potter’s submission is firstly that the matter complained of is incapable of any meaning at all, in that the metaphor of a finger in the pie is incapable of precision and, secondly, that the appropriate level of precision cannot be achieved by repeating the words in the matter complained of.

28. The correct approach to interpretation of sayings, metaphors and similes, has been considered in decisions at appellate level. In C v L and Ors [2005] SASC 315 at [30] – [33] and [70] the Full Court of the Supreme Court dismissed an appeal in relation, inter alia, to defamatory meaning where the imputation was that the plaintiff treated someone “like a doormat”. Besanko J noted that the metaphor was capable of shades of meaning, but that the simile conveyed a defamatory meaning of treating someone shabbily.

29. It is possible to distil a meaning capable of being defamatory even where no words appear at all. In Darbyshir v Daily Examiner Pty Ltd (Supreme Court of NSW, Levine J, 2 May 1997), an advertisement for the plaintiff’s services as a solicitor was embellished, by the newspaper, with an illustration of a vulture. Levine J permitted the plaintiff to plead an imputation that she was a vulture.

30. In neither of the above cases was the plaintiff obliged to cast about for a reformulation of the sting. The words of the matter complained of, and the use of a popular saying, namely that someone has a finger in the pie (the inference being, since fingers should not be put into pies, pejorative) are simple and direct and the meaning is capable of being understood by the ordinary reasonable reader.

31. I do not accept Mr Potter’s submission that no imputation can be distilled from this expression because of its vagueness and/or generality. The use of informal language or colourful analogies in the matter complained of is designed to be understood and descriptive of the act or condition ascribed to the plaintiff. For any person to have a finger in a pie is capable of pejorative meaning, according to the Concise Oxford Dictionary. The fact that these were “very bad” pies confirms this. For the reasons explained by Gleeson CJ in Drummoyne Council, supra, the fact that a wide range of conduct is connoted by the use of this expression in the matter complained of would not warrant a restriction of the imputation distilled from it to some lesser meaning.

32. According to my notes, Mr Potter’s alternative submission is that any imputation conveyed is not different in substance from imputation (o), namely that the plaintiff is a criminal. I do not accept that submission, as that the conduct in this imputation need not be criminal at all. Having a finger in a pie generally does not generally connote criminality, and neither does the word “bad”.  Mr Potter says that his second submission was that, apart from being impermissibly imprecise, the matter complained of permitted further specificity (in contra to only ‘X is disgusting’) which was picked up in later imputations: Greenfield v Fairfax Media Publications Pty Ltd [2014] NSWSC 1940. Conformably with my earlier comments as to the tenor of the matter complained of, I reject this submission that further specificity is required.

33. This imputation will go to the jury.

Imputations 3(c), 3(e), 3(j) and 3(m)

34. These imputations were withdrawn in the course of argument. The first proposed alternative 3(e) was, however, struck out as not differing in substance from imputation 3(h), as is set out below.

Imputation 3(d)

35. The defendant objected to the use of the words “SP bookmaking ring”, submitting that it was no longer part of everyday language and understanding, and that a jury would not be able to understand it unless it was accompanied by explanatory words.

36. Courts should be cautious in making assumptions about what an ordinary reasonable reader may or may not know, as the differing opinions in Hill v Westfield [2003] NSWSC 437 and Forrest v Askew [2007] WASC 161 show. In Hill v Westfield Simpson J was persuaded that the ordinary reasonable reader would not understand that insider trading was a criminal offence. Her Honour explained her reasons for such a finding as follows:

“[12] In written submissions presented on behalf of the plaintiff, and in response to the defendants’ submissions, it was asserted that the matter complained of appeared in the financial pages of the newspaper. Whether or not that is so I do not know; there is no evidence and no pleading to that effect. For the purposes of the argument I am prepared to assume that it is the case. But it advances the plaintiff’s case not at all. The capacity of a publication to convey imputations in its natural and ordinary meaning does not depend upon the identity of recipients, or a specific class of recipient, but is to be determined by the application of an objective test: see Reader’s Digest Services Pty Ltd v Lamb(1982) 150 CLR 500 at 505–506.

[13] It may well be the case that many members of the public are aware, in some sense at least, of the concept of insider trading, and even that it constitutes a criminal offence. However, I am not satisfied that the level of public understanding of the concept is such as to warrant the conclusion that, from the factual matters asserted in the article, the ordinary reasonable reader would draw the conclusion that the assertions amounted to an accusation of insider trading.”

37. In Forrest v Askew Newnes J, in the course of determining whether an imputation of insider trading was conveyed, disagreed with the approach taken by Simpson J in Hill v Westfield:

“[63] I do not consider that Hill v Westfield (above) assists the defendants. In that case two articles fell for consideration. In the first there was no reference in the words complained of to "insider trading". Simpson J said (at [13]) that it may well be the case that many members of the public are aware, in some sense at least, of the concept of insider trading, and even that it constitutes a criminal offence, but her Honour was not satisfied that the public understanding was such as to warrant the conclusion that, from the factual matter in the article, the ordinary reasonable reader would understand that the assertions amounted to insider trading. In respect of the second article there was an express reference to insider trading but it did not identify it as a criminal offence nor explain the concept. Simpson J concluded that the concept of insider trading was not sufficiently widely known in the public arena, and the ordinary reasonable reader was not aware that it was a criminal offence, so her Honour struck out an imputation that the plaintiff had committed the criminal offence of insider trading.

[63] In the present case, in my view, it is arguable that the article makes sufficiently clear what the concept involves and the reference to charges makes it clear that it is an offence. I would, in any event, respectfully disagree with Simpson J that it is clear that the concept is not sufficiently understood in the community so that such an imputation should be struck out at an interlocutory stage.

38. I adopt the approach taken by Newnes J. The matter complained of makes sufficiently clear what SP bookmaking involves, and the reference to illegality makes it clear that such conduct is against the law. The defendant’s submission that these words are imprecise and require explanation and/or extrinsic facts pleaded is accordingly rejected.

39. However, I accept the defendant’s submission that the words “the organised crime figure of his day” are surplusage, in that the sting of association with such a crime figure may be determined by the reader looking at the matter complained of. It is not necessary for it to be repeated in the imputation, and it is confusing that it is repeated in some imputations but not others. Accordingly, these words should be deleted from all the imputations in which they appear.

40. The defendant’s remaining objection to this imputation, and to others where the plaintiff’s alleged partners in crimes are named, is that these imputations should be split into two meanings: one being that he associated with these specific criminals and the other being that he performed these acts in the company of persons Mr Potter submitted should be described as “other criminals” or “other persons”.

41. This submission goes beyond the requirement for precision in imputations. The matter complained of clearly states that the plaintiff carried out this activity with those persons, and not a separate imputation that he associated with them. The fact that he carried out these activities in association with these specific persons is an essential part of the sting of the imputation.

42. This imputation, appropriately amended, will go to the jury.

Imputation 3(g)

43. The matter complained of uses the word “involved” on several occasions, and the basis for the defendant’s objection to it as ambiguous is without merit. An objection to the word “involved” was specifically rejected by Nicholas J in Wafawarova v Australian Broadcasting Corporation [2007] NSWSC 1212 at [18]; see also Ainsworth v Burden [2000] NSWSC 105, referred to with approval in King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244 at [15].

44. The defendant submitted that the reference to the “construction giant Transfield” should be deleted as surplusage and the imputation was rolled up. The plaintiff initially responded by redrafting this imputation but, in the course of argument, returned to the original pleading. As to the reference to Transfield, part of the sting of the libel is the bringing in of cheap labour for a company that is a “giant” and this should be permitted to remain.

45. This imputation will go to the jury.

Imputation 3(h)

46. The matter complained of refers to illegal casinos in Chinatown in paragraphs 4 and 5, in which John Yuen was involved. This allegation is repeated in paragraph 11, where the reference is to “illegal gambling venues in Dixon Street Chinatown”.

47. Although Mr Rasmussen argued that two different casinos were involved, it is clear that these gambling places are the same; paragraph 11 is the finding of Justice Don Stewart about who was running them and these are the same persons.

48. Accordingly, counsel for the plaintiff was called upon to decide whether he wanted to rely upon 3(e) or 3(h). Mr Rasmussen chose 3(h), so this imputation will go to the jury.

Imputations 3(i) and 3(j)

49. Mr Rasmussen sought to withdraw imputation 3(i) to replead it and, given the similar territory for imputation 3(j), I have deferred ruling upon it until I see the redraft of 3(i) and am apprised of any objections by the defendant. If there are no further objections to these imputations, I will be able to make orders accordingly when the matter is next before the court.

Imputation 3(k)

50. The objection taken to this imputation in correspondence was that it “does not make sense” and “does not specify how the plaintiff’s conduct was dishonest”.

51. Mr Boyd is described as an official in the Department of Immigration. Payment to him personally for the purpose of approval of a residency status application, as opposed to a payment to the department for the purpose of processing the application (whether it is successful or fails) is the dishonesty in question, and this is clear from the text of the matter complained of.

52. An alternate claim that this imputation does not differ in substance from 3(g) also fails. These transactions relate to payments for permanent residency, not for bringing in “cheap Korean labour”. I am satisfied that, to the ordinary reasonable reader, it is arguably the case that the plaintiff was involved in different immigration scams: ringing up Garry Boyd under an alias to ask for favours (paragraph 3); the “immigration racket” for cheap Korean labour in which the plaintiff and John Yuen were involved (paragraph 5); payments to Garry Boyd for approval of applications for permanent residency status (paragraph 12); misleading officers from the Department of Immigration (paragraph 12).

50. I am conscious that paragraph 13 refers to John Yuen being convicted over “the immigration racket”, but whether the ordinary reasonable reader assumes that this was one overarching racket or a series of rackets should be an issue for the trial. I note, in any event, that the challenge to this imputation was one of failing to differ in substance rather than capacity, and that as no UCPR r 28.2 separate trial was sought, the plaintiff may, as Sackville A-JA noted in Hibbert, raise these issues at a later date, including at the trial.

51. This imputation will go to the jury.

Imputation 3(l)

55. As the defendant’s submissions note, the practice of replacing “reasonably suspected of” with “may have” is one which has not been accepted as a pleading practice. The clear import of the matter complained of is that the plaintiff was reasonably suspected by Justice Don Stewart, the Royal Commissioner who headed the Royal Commission into The Age tapes, of involvement in each of these three activities, which must be separately pleaded. This will give sufficient precision to these three imputations to permit the defendant to prove their contents by tender of the report containing the words extracted from it.

56. Leave to replead has accordingly been granted.

Imputation 3(n)

57. Mr Rasmussen sought leave to withdraw this imputation, acknowledging that doing business with someone who did business with “Eddie Obeid a corrupt politician” was not capable of being defamatory. It is accordingly struck out.

Imputation 3(p)

58. Mr Potter’s objection to the word “involved” is covered by my previous ruling. He additionally submitted that the phrase “in which, for a price, anything could be bought” should be pleaded as a separate imputation as it rolled up the additional factor of being a member of the corrupt network.

59. I do not accept this submission. These additional words identify what the network was for. This imputation will go to the jury.

Costs

60. Mr Rasmussen submitted that his client had been substantially successful, in that more than half of the imputations challenged had survived scrutiny.

61. The substantial changes made to the imputations in written submissions were themselves the subject of further changes in the course of the argument. The defendant’s submissions included many sensible proposals which the plaintiff could have saved time by adopting. The defendant was, on balance, more successful than the plaintiff and that should be reflected in the costs order. Accordingly the costs should be the defendant’s costs in the cause.

62. The parties were able to agree on a timetable to allow for a further argument on the amended pleading, as is set out in the orders made. As noted at the commencement of this judgment, these proceedings will need careful case management because of the plaintiff’s age and the long period of time since the events in question. The plaintiff has been put on notice that he must include all imputations he relies upon in the next pleading, and not assume he can continue to add imputations as he goes along (including the repleading of contextual imputations) without compelling reason.

Orders

1. Imputation 3(a), 3(f) and 3(o) will go to the jury.

2. Imputation 3(b) will go to the jury.

3. Note imputation 3(c) is withdrawn; strike out proposed imputation 3(c) with leave to replead.

4. Strike out from imputation 3(d) the words “the major organised crime figure of his day” but otherwise this imputation will go to the jury.

5. Note imputation 3(e) is withdrawn and grant leave to the plaintiff to replead this imputation as proposed, but deleting the words “the major organised crime figure of his day”; this amended imputation will go to the jury.

6. Noting the plaintiff withdraws the proposed repleading, imputation 3(g) will go to the jury.

7. Note in relation to imputation 3(h), the proposed second form of imputation 3(e), namely that “The plaintiff, Brian and Garry Boyd and Abe Saffron were involved in illegal casinos” does not differ in substance from imputation 3(h), and imputation 3(h) is the imputation the plaintiff selects to go to the jury.

8. Strike out imputation 3(i) with leave to replead so that this imputation will differ in substance from imputation 3(d).

9. Note that imputation 3(j) is withdrawn and grant the plaintiff leave to replead.

10. Imputation 3(k), subject to deleting the word “of”, will go to the jury.

11. Imputation 3(l) is struck out with leave to replead imputations to the effect that the plaintiff was reasonably suspected by Justice Don Stewart, the Royal Commissioner who headed the Royal Commission into The Age tapes, of involvement in: (a) forging documents; (b) conspiracy; and (c) misleading officers of the Department of Immigration (each to be a separate imputation).

12. Imputation 3(m) is withdrawn and struck out on the basis of capacity.

13. Imputation 3(n) is withdrawn and struck out.

14. Grant leave to the plaintiff to plead imputation 3(p): “The plaintiff was knowingly involved in a corrupt Sydney network of lawyers, politicians, crime figures, judges and racing identities in which, for a price, anything could be bought”; this imputation will go to the jury.

15. Costs of this application to be the defendant’s costs in the cause.

16. Plaintiff’s Amended Statement of Claim by Friday 27 March 2015.

17. Defendant’s objections by Thursday 9 April 2015.

18. Matter stood over for further directions or argument to Thursday 16 April 2015 at 2:00pm.

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Decision last updated: 26 March 2015