Tauaifaga v TCN Channel Nine Pty Ltd

[2013] NSWSC 8

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Tauaifaga v TCN Channel Nine Pty Ltd [2013] NSWSC 8
Hearing dates:	6 August 2012
Decision date:	25 January 2013
Before:	McCallum J
Decision:	Defendant granted leave to amend defence in accordance with these reasons
Catchwords:	DEFAMATION - defences - defence of contextual truth - requirement that contextual imputations arise in addition to plaintiff's imputations
Legislation Cited:	Defamation Act 2005
Cases Cited:	Ange v Fairfax Media Publications [2011] NSWSC 204 Liu v Fairfax Media Publications Pty Ltd [2013] NSWSC 7
Category:	Interlocutory applications
Parties:	Hellena Tauaifaga (plaintiff) TCN Channel Nine Pty Ltd (defendant)
Representation:	Counsel: S Chrysanthou (plaintiff) D M Richardson (defendant) Solicitors: Goldsmiths Lawyers (plaintiff) Johnson Winter Slattery (defendant)
File Number(s):	2011/274100
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceedings for defamation arising out of the publication of a segment of the television programme "A Current Affair". The defendant seeks leave to file an amended defence to add a defence of truth and a defence of contextual truth. The plaintiff objects to the form of pleading of the contextual truth defence and opposes the leave sought on that limited basis. This judgment determines that contest.

1. The broadcast included surveillance footage of the plaintiff, her partner and her son at the Dick Smith store at Seven Hills shopping centre. The commentary of the presenter asserted that the footage depicted the plaintiff and her partner stealing a plasma television "right in front of their son".

1. The commentary continued:

And it's out the door, Dad, the TV, Mum. And hang on, what have they forgotten?

You might notice here that they'd actually left their child behind which probably gives you a fair degree of the type of people that they are.

1. The plaintiff alleges that the broadcast conveyed the following imputations defamatory of her:

(a)   that she is a shoplifter;

(b)   that she neglects her child.

1. The proposed contextual truth defence seeks to rely upon the following contextual imputations:

(i)   That the plaintiff was an accessory to the theft of a plasma television;

(ii)   That the plaintiff conspired with her partner in the theft of a plasma television;

(iii)   That the plaintiff undertook criminal activity in the presence of her young son.

1. The application was deliberately listed in the defamation list to be heard after an application in unrelated proceedings also raising an issue as to whether the contextual imputations pleaded should be allowed. The application of the relevant principles is considered at greater length in my judgment in that matter: see Liu v Fairfax Media Publications Pty Ltd [2013] NSWSC 7.

1. It is sufficient for present purposes to repeat the succinct outline of propositions provided by Ms Chrysanthou, who appeared for the plaintiff in the present matter. Ms Chrysanthou submitted that the most useful authority is the decision of the defamation list judge, Nicholas J, in Ange v Fairfax Media Publications [2011] NSWSC 204, which may be distilled as follows:

(a) a contextual imputation must differ in substance from the plaintiff's imputations (Ange at [25]);

(b) the question is, would the ordinary reasonable reader or viewer have understood the matter complained of to convey at the same time both the plaintiff's imputations and the defendant's contextual imputation (Ange at [16]);

(c)   a contextual imputation will not be permitted if it is merely an alternative formulation to the plaintiff's imputation. The requirement that the imputations differ in substance is a necessary but not sufficient requirement - there must be a difference in kind (Ange at [19]);

(d)   if the defamatory sting of the contextual imputation is the same as the defamatory sting of the plaintiff's imputation, even if the contextual imputation is broader it will still be impermissible (Ange at [27]);

(e)   where there is more than one imputation relied upon by the plaintiff, it is necessary to consider all of the imputations separately and in combination to determine whether a contextual imputation is carried in addition to them (Ange at [28]).

1. Contextual imputations (i) and (ii) are, in my view, different formulations of a proposition that amounts to the same thing so far as the ordinary reasonable viewer is concerned, namely, that the plaintiff was criminally responsible for the theft of the television. They are, in my view, merely alternatives to the plaintiff's imputation, based on the same passage of the matter complained of, that she is a shoplifter. Applying the principles set out above (analysed at greater length in my decision in Liu), I am persuaded that those two contextual imputations are impermissible.

1. Contextual imputation (iii) falls into a different category, since it contains the additional element of alleging that the criminal activity in question took place in the presence of the plaintiff's young son. In my view, that aggravates the seriousness of the allegation, with the result that it may be said to have a different, more serious defamatory sting than the plaintiff's imputation that she is a shoplifter.

1. Ms Chrysanthou raised a discrete objection in respect of contextual imputation (iii) based on the inclusion of the phrase "undertook criminal activity". She submitted that, since there is no other criminal activity identified in the broadcast other than shoplifting, which has been pleaded in the plaintiff's imputation, that imputation cannot arise in addition to shoplifting. In my view, that submission overlooks the composite sting of contextual imputation (iii), being the undertaking of such activity in the presence of a young child. I do not think the different formulation of the conduct in question poses a difficulty in that context.

1. At the conclusion of the hearing, Mr Richardson, who appeared for the defendant, foreshadowed a further amendment so as to plead the defence of truth in respect of the plaintiff's imputation (b). The present form of the proposed amended defence pleads truth only in respect of imputation (a). Subject to any objection the plaintiff may take to any further iteration of the defence in that respect, the orders are as follows:

(1)   that the defendant be granted leave to amend its defence in accordance with these reasons;

(2)   that the defendant pay the plaintiff's costs thrown away by reason of the amendment.

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Amendments

31 January 2013 - correction to counsel representation

Amended paragraphs: Coversheet

Decision last updated: 31 January 2013