Wraydeh v State of New South Wales

[2018] NSWDC 138

District Court

New South Wales

Medium Neutral Citation:	Wraydeh v State of New South Wales [2018] NSWDC 138
Hearing dates:	10 May 2018
Date of orders:	07 June 2018
Decision date:	07 June 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiff is granted leave to adopt the contextual imputations identified in paragraph 14 of the Defence in each of the matters complained of. (2) The parties to have liberty to bring in Short Minutes of Order setting out a timetable which will include the filing of a further amended statement of claim. (3) Costs reserved, with liberty to apply.
Catchwords:	TORT – defamation – plaintiff brings proceedings for defamation concerning publications that he had committed criminal offences – defendant pleads defences other than justification to the matters complained of but pleads two contextual imputations - plaintiff’s application to adopt the defendant’s contextual imputations – discretionary factors as to whether leave should be granted – whether leave should be refused in relation to an imputation that “the plaintiff is a criminal” on the basis that, by reason of the plaintiff’s criminal record, this imputation was true - whether the plaintiff’s criminal record meant that he was “libel-proof” – proof of the contextual imputation a disputed issue of fact for the trial, not for a summary finding of abuse of process
Legislation Cited:	Crimes Act 1900 (NSW), s 125 Defamation Act 1952 (UK), s 5 Defamation Act 1957 (Tas), s 18 Defamation Act 1974 (NSW), ss 15 and 16 Defamation Act 2005 (NSW), ss 25, 26 and 49 Promotion of National Unity and Reconciliation Act, 1995 Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645 Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 Bassett v Ironbark Press Pty Ltd (Supreme Court of New South Wales, Levine J, 21 October 1994) Besser v Kermode (2011) 81 NSWLR 157 Chase v News Group Newspapers Ltd [2002] EWCA 1772 Chel v Fairfax Media Publications Pty Limited [2015] NSWSC 171 Corby v Channel Seven Sydney Pty Ltd (Supreme Court of New South Wales, Nicholas J, 20 February 2008) Fairfax Digital Australia and New Zealand Pty Ltd v Kazal [2018] NSWCA 77 Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 Irving v Penguin Books Ltd [2000] All E R (D) 523 Jones v TCN Channel Nine Pty Ltd (No 3) [2016] NSWSC 922 Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 Moran v Schwartz Publishing Pty Ltd (No 3) [2015] WASC 215 Pahuja v TCN Channel Nine Pty Ltd [2015] NSWSC 1664 Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223 The Citizen 1978 (Pty) Ltd v McBride [2011] ZACC 11 Toben v Nationwide News Pty Ltd (2016) 338 ALR 329 YZ v Amazon (No 7) [2016] NSWSC 637
Texts Cited:	Professor D K Rolph, “Showing restraint: Interlocutory injunctions in defamation cases” (2009) 14 MALR 255
Category:	Procedural and other rulings
Parties:	Plaintiff: Hussein Wraydeh Defendant: State of New South Wales
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendant: Ms S Chrysanthou   Solicitors: Plaintiff: Thomas Booler Lawyers Defendant: Norton Rose Fulright
File Number(s):	2017/240077
Publication restriction:	None

Judgment

The applications before the court

1. These are proceedings for defamation commenced by statement of claim filed on 7 August 2017. Two applications were before the court:

1. The plaintiff’s application to amend the statement of claim to adopt (or, to use the informal term, “plead back”) two contextual imputations pleaded by the defendant in the defence filed on 7 March 2018. This is the subject of this reserved judgment.

2. The plaintiff’s complaint concerning the asserted refusal of the defendant to comply with orders in relation to discovery. This was the subject of case management orders after submissions for which no reasons for judgment were sought by the parties.

The procedural history of the claim

2. The procedural history is relevant to the defendant’s claim that the plaintiff has brought this application too late for it to be granted.

3. On the first return date, the defendant was directed to notify the plaintiff of objections to imputations and other challenges to the pleading. On 14 September 2017, the plaintiff was granted leave to amend the statement of claim to include an additional publication. On 2 November 2017, the plaintiff was directed to file and serve the amended statement of claim by 9 November 2017 and on 7 December 2017 the plaintiff was granted leave to file the amended statement of claim in court. During this three month period, there appears to have been a vigorous exchange of correspondence concerning imputations, but there was no application for rulings in relation to form or capacity of imputations sought from the court.

4. On 8 February 2018, the defendant was directed to file and serve a defence by 7 March 2018, and the matter was listed for further directions. Although not referred to in those orders, which were made by consent, the plaintiff at the same time gave notice, under cover of a letter dated 28 March 2018, of an intention to amend the statement of claim to adopt the two contextual imputations identified by the defendant in the defence of contextual justification.

The defendant’s contextual imputations

5. The defence of contextual justification (at paragraph 14 of the defence) sets out that the defendant pleads that each of the three matters complained of conveyed the following imputations in addition to each of the imputations pleaded by the plaintiff:

1. The plaintiff had so conducted himself as to be reasonably suspected by police of being involved in a fatal car accident.

2. The plaintiff is a criminal.

6. The defendant does not plead justification to the imputations pleaded by the plaintiff in those publications. This is of relevance when considering the matters complained of and imputations pleaded by the plaintiff in relation to each of the three causes of action.

The three publications and the imputations pleaded by the plaintiff

7. The first publication (and the imputations pleaded) are set out at paragraph 2 of the statement of claim (with amendments noted):

“2. On or about 7-8 August 2016 and at a time or times thereafter NSW police Force officers published of and concerning the Plaintiff certain defamatory material to wit the words following or words of similar substance and effect or not substantially different therefrom:-

(i) “Police are appealing for a man to get in touch with investigators, as they continue inquiries into a fatal crash at Punchbowl yesterday (Sunday 7 August 2016), when emergency services were called to Warwick Street, Punchbowl, following reports a Mitsubishi EVO and a Honda CRV had collided.”

(ii) “A woman injured in the crash died, while the 45 year old female driver of the second vehicle suffered minor injuries and was taken to Bankstown Hospital for treatment.”

(iii) “Officers from the Crash Investigation Unit believe 39 year old Hussein Wraydeh may have information vital to clarify the circumstances leading up to the crash.”

(iv) “Police have been unable to get in touch with Mr Wraydeh and are appealing for anyone who knows him to urge him to contact police.”

(v) “Police have been told he may be driving a blue Mazda 6.”

(vi) “The driver behind the wheel fled the scene after the fatal crash.”

(vii) “A manhunt is underway for the driver who fled the scene of the horrific car crash.”

(viii) “We believe the driver behind the wheel of the white car which also had stolen number plates was 39 year old Hussein Wraydeh who is yet to come forward.”

(ix) “CCTV footage shows a man climbing out of the car before checking on his injured passenger.”

(x) “Moments later, the man walked away from the accident scene leaving his passenger to die in an alleged hit-and-run.”

(xi) “The Air and Dog Squad has been used to track down the driver who was gone when emergency services arrived at the scene.”

(xii) “A helicopter was used to find Mr Wraydeh.”

(xiii) “Officers from the Crash Investigation Unit believed Mr Wraydeh may have “vital” information.”

(xiv) “Police have been unable to get in touch with Mr Wraydeh who is believed to be driving a blue Mazda 6.”

(xv) “Anyone with information is urged to contact Crime Stoppers on 1800 333 000.”

(xvi) “We are searching for Mr Wraydeh.”

…

5. The words and material above in paragraphs 2, 3 and 4 conveyed or were understood to have conveyed in their natural and ordinary meaning the following defamatory imputations:

(a) The Plaintiff is a callous and cruel man because he left a passenger in his car to die (paragraphs (ii), (vi), (vii), (ix), (x), (xi), (xii), (xvi)).

(b) The Plaintiff is a hit-run driver ((i), (ii), (iii), (iv), (vi), (ix), (x), (xi), (xii), (xvi)).

(c) The Plaintiff fled the scene after the car he was driving was involved in a fatal crash ((vi)).

(d) The Plaintiff was justifiably the subject of a police manhunt because he fled the scene of a horrific car crash ((vii), (ix), (x), (xi), (xii), (xiii), (xv), (xvi)).

(e) The Plaintiff drove a car with stolen number plates ((xviii)).

(f) The Plaintiff was a fugitive from justice hiding from the police ((vi), (vii), (xi), (xii), (xiii), (xiv), (xv), (xvi)).

(g) The Plaintiff so conducted himself with respect to a fatal car crash at Punchbowl that he was justifiably the subject of a helicopter and dog squad search by the police ((xi), (xii)).

(h) The plaintiff was criminally involved in a fatal car crash at Punchbowl on 7 August 2016 ((i), (ii), (iii), (viii), (ix), (x));

(i) Or in the alternative to (h)

(j) The plaintiff is reasonably suspected by police of being criminally involved in a fatal car crash at Punchbowl on 7 August 2016 ((i), (ii), (iii), (viii), (ix), (x));

(k) The plaintiff is hiding from police because he knows that he was criminally involved in a fatal car crash at Punchbowl on 7 August 2016 ((i), (ii), (iii), (viii), (ix), (x), (xi), (xii), (xiii));

(l) The plaintiff abandoned the scene of an accident ((iii), (iv), (vi), (vii));

(m) Or in the alternative to (k)

(n) The plaintiff is reasonably suspected by police of abandoning the scene of an accident ((iii), (iv), (vi), (vii), (xiv), (xv), (xvi));

(o) The plaintiff left his female passenger, who was injured in the car crash, to die so that he could evade the police ((i), (ii), (iii), (viii), (ix), (x), (xi), (xii), (xiii), (xvi))

6. Further and in addition on or about 17-18 August 2016 Superintendent Stuart Smith and other NSW police Force officers published of and concerning the Plaintiff certain defamatory material to wit the words following or words of similar substance and effect or not substantially different therefrom:-

(i) “Hussein Wraydeh is being questioned at Bankstown Police Station in relation to several matters including the crash and a large number of credit cards found in his possession.”

(ii) “Hussein Wraydeh was arrested on Wednesday (17 August 2016) and is held at the Bankstown Local Court where he is expected to appear on Thursday afternoon on unrelated charges.”

(iii) “Mr Wraydeh has been charged with eleven offences including drug supply, possessing a prohibited drug, stolen goods in custody, driving while disqualified, driving an unregistered and uninsured vehicle and unlawfully possessing number plates and five other offences.

7. The words above in paragraph 6 conveyed or were understood to have conveyed in their natural and ordinary meaning the following defamatory imputations:-

(a) The police have questioned the Plaintiff about the car crash in which he was allegedly involved (paragraph (i)).

(b) The Plaintiff is reasonably suspected also being questioned by the police of possessing about a large number of credit cards found in his possession ((i)).

(c) The Plaintiff is being held by the police at the Bankstown Local Court ((ii)).

(d) The Plaintiff is being charged with eleven offences ((iii)).

(e) The Plaintiff is reasonably suspected by police being charged with of supplying a prohibited drug supply ((iii)).

(f) The Plaintiff is reasonably suspected by police being charged with of possessing a prohibited drug ((iii)).

(g) The Plaintiff is reasonably suspected by police of being charged with having stolen goods in his custody ((iii)).

(h) The Plaintiff is reasonably suspected by police of being charged with driving while disqualified ((iii)).

(i) The Plaintiff is reasonably suspected by police of being charged with driving an unregistered and uninsured vehicle ((iii)).

(j) The Plaintiff is reasonably suspected by police of being charged with unlawfully possessing number plates ((iii)).

(k) The Plaintiff is held by the police at the Bankstown Local Court ((ii)).

(8) On or about 8 August 2016 the defendant published on its publicly available facebook page defamatory material of and concerning the plaintiff which is annexed hereto and marked with the letter ‘AF’.

(9) The defamatory material referred to above at paragraph 8 conveyed or was understood to have conveyed in its natural and ordinary meaning the following defamatory imputations:-

(a) The plaintiff was criminally involved in a fatal car crash at Punchbowl on 7 August 2016 (1, 2, 4, 5, 8, 10);

Or in the alternative to (a)

(b) The plaintiff is reasonably suspected by police of being criminally involved in a fatal car crash at Punchbowl on 7 August 2016 (1, 2, 4, 5, 8, 10);

(c) The plaintiff is hiding from police because he knows that he was criminally involved in a fatal car crash at Punchbowl on 7 August 2016 (1, 2, 4, 5, 6, 7);

(d) The plaintiff is a hit and run driver (the entire matter complained of);

(e) The plaintiff left his female passenger, who was injured in the car crash, to die so that he could evade the police (2, 3, 4, 5, 8);

(f) The plaintiff abandoned the scene of an accident (2, 3, 4, 5, 6);

Or in the alternative to (f)

(g) The plaintiff is reasonably suspected by police of abandoning the scene of an accident (1, 2, 3, 4, 5, 6, 8, 10);”

8. The plaintiff’s application for leave to amend to adopt the contextual imputations is opposed.

The evidence on the application

9. The plaintiff relies upon the affidavit of Lara Alfan sworn on 7 May 2018 (Exhibit A). The defendant relies upon the criminal record of the plaintiff in relation to particulars 21, 22 and 23 of the defence in relation to the justification of the imputation “the plaintiff is a criminal”.

10. The plaintiff’s criminal history has been tendered (Exhibit 1). Does this evidence, and the other material set out in the defence, demonstrate that it is sufficiently true that he is “a criminal” for him to be denied leave to plead such an imputation on the basis that the truth of the imputation renders his application an abuse of process?

11. The plaintiff was born in 1977, and his criminal offences span the period from 1998 (when he was 21) to 2009 as well as subsequent driving offences and an asserted (but uncharged) failure to return a hire car. The plaintiff’s full criminal record sets out the following offences and convictions:

1. In November 1998 the plaintiff was charged with robbery and committed for trial. He was sentenced in the District Court of New South Wales in April 1999 to a community services order without conditions (400 hours). This was apparently his first offence (I have no information about juvenile offences, if any); he was aged 21 at the time.

2. In September 2000 the plaintiff was charged with destroy or damage public property and having custody of an offensive implement in a public place. He was dealt with at Bankstown Local Court where, in April 2001, he was given a s 9 bond for 12 months, a fine of $400 and ordered to pay compensation of $3227.70.

3. On 23 November 2001, the plaintiff came before the Downing Centre Local Court charged with having goods in custody which were reasonably suspected of being stolen. On 30 September 2002, he was given a s 9 bond for another 12 months and ordered to inform the clerk of the court of any change of address. (I note that it appears likely that this offence was committed while he was on the previous s 9 bond, but this does not appear to have been the subject of consideration at the time). While a charge of driving a vehicle displaying a misleading number plate was dismissed, the plaintiff was fined $300 for driving while his licence was suspended, $200 for using an uninsured motor vehicle and a further $200 for doing so in a road area. (I note that the driving while licence suspended conviction suggests road traffic offences which may form part of his driving record, which material is unavailable to me).

4. On 27 November 2001, the plaintiff came before the Local Court at Burwood on a charge of take and drive conveyance without the consent of the owner (plus “2 attempted”). This is noted as “case reopened” on 8 July 2002. I note that there were also charges of destroy or damage property, enter vehicle or boat without consent of owner, possessing implements for such a purpose and stealing a motor vehicle came before the court. However, on 25 March 2003, two of these charges, namely the take and drive conveyance and enter vehicle or boat without consent, were withdrawn and dismissed. He was, however, convicted on 15 April 2003 of destroy or damage property and ordered to pay a fine of $500 plus compensation of $200.

5. On 4 January 2002, the plaintiff came before the Local Court at Waverley. Two larceny charges were dismissed on 30 September 2002, as were two charges of take and drive conveyance without the consent of the owner and not disclosing licence details to the police.

6. On 9 August 2002 the plaintiff came before the Burwood Local Court, Bankstown, charged with possess implements to enter/drive a conveyance and steal a motor car (both by first instance warrant). He was convicted on 25 November 2002, with a warrant to issue.

7. On 9 January 2003 the plaintiff came before Burwood Local Court, Bankstown and on 15 April 2003 fined $500 plus court costs for possessing implements to enter/drive conveyance (having been the subject of a first instance warrant).

8. The plaintiff did not come before the court between 15 April 2003 and 21 January 2005. On 21 January 2005 he came before the Parramatta District Court at Bankstown on a charge of goods in custody. In relation to this charge, on 9 June 2006 he was sentenced to two months imprisonment commencing 21 January 2005 and concluding on 20 March 2005 (which means he was taken into custody when charged, clearly in relation to). The goods in custody charge handed down in the District Court on 9 June 2005 was, part of a sentence for a much more serious offence, namely for supply of a commercial quantity of a prohibited drug, which was dealt with at the same time as the goods in custody charge. On 9 June 2006 the plaintiff was sentenced to six years and four months to commence on 21 January 2005 and conclude on 20 January 2009. On his release he was to be subject to supervision for counselling on drug and gambling addiction problems.

9. I note, for completeness, that two charges of supply commercial quantity and supply indictable quantity (not cannabis) were dismissed at Burwood Local Court, Bankstown on 14 June 2006.

10. Between his release from prison on 20 January 2009 and his arrest on or about 28 June 2012 the plaintiff did not appear again before the court. On 28 June he was charged with driving while visiting privileges were withdrawn, a first offence, which was dismissed. This should not be taken into account.

11. On 7 February 2014 the plaintiff came before Balmain Local Court on a charge of drive motor vehicle while suspended (first offence). On 12 March 2014 the plaintiff was fined $500 and disqualified from driving for 12 months, concluding on 11 March 2015. An appeal to the District Court on 15 May 2014 was dismissed and the conviction confirmed.

12. The plaintiff has not been charged with any criminal or driving offences since 7 February 2014.

12. The defence particularises (at paragraphs 21 – 23) the offences referred to in paragraph 11(8) above, namely the two periods of imprisonment the plaintiff served concurrently for offences of commercial drug supply and goods in custody, as well as the plaintiff’s conviction for the driving offence in paragraph 11(11) above.

13. In addition, the defendant relies upon a “car stop” on 17 August 2016, when the plaintiff was found to be driving a rental car for which the car hire agreement (entered into on 14 July 2016) had expired on 5 August 2016. Although no criminal charges appear to have been laid, the defence pleads that this is larceny by a bailee (s 125 Crimes Act 1900 (NSW)). I note, however, that the plaintiff brings a claim of wrongful arrest and false imprisonment for the events on 17 August 2016 (paragraphs 11 – 13). (This has been poorly pleaded, inserted part way through the particulars of publication and the inadequately pleaded claim for punitive damages has been conflated with the claim for damages for defamation, but this is an issue for another day).

The defence of contextual justification

14. When the Defamation Act 2005 (NSW) was enacted, ss 25 and 26 reproduced the provisions of ss 15 and 16 Defamation Act 1974 (NSW) (the repealed legislation which it replaced). It was the generally accepted view that contextual justification operated as a complete defence in the same manner as s 16 Defamation Act 1974 (NSW), and not in the more limited sense demonstrated by s 5 Defamation Act 1952 (UK) or s 18 Defamation Act 1957 (Tas): see Corby v Channel Seven Sydney Pty Ltd (Supreme Court of New South Wales, Nicholas J, 20 February 2008) and Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645.

15. All of this changed when Simpson J held, in Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852, that the language of s 26 failed to achieve this result. The correctness of Simpson J’s decision was affirmed on appeal: Besser v Kermode (2011) 81 NSWLR 157. In Besser v Kermode the Court noted (at [31] – [32]) the procedure for reform which was intended to ensure that defamation legislation reform occurred. However, no steps were taken by the legislature even though the Review provided for in s 49 Defamation Act 2005 (NSW) resulted in many of the submissions calling for change and even providing a redrafted section to replace the existing s 26.

16. As a result of the change in judicial interpretation of s 26, considerable difficulties of interpretation have arisen. One of these is how to deal with the practice of permitting a plaintiff to adopt or “plead back” the defendant’s imputations. This is because, following Besser v Kermode, a s 26 defence could not be pleaded to a plaintiff’s imputations, the defence being restricted to those imputations which a defendant pleaded, where these were different in substance. As the success of the defence now depended upon finding a new imputation, this resulted in increasingly convoluted contextual justification imputations while in turn plaintiffs sought to plead them back because this would defeat the s 26 defence entirely, whereas previously this had not been possible.

17. It was against this background that the courts began to refuse plaintiffs leave to do so, as it effectively defeated the defence. This practice changed in Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604, where McCallum J noted (at [35]) while it seemed “unsporting” to deny a defendant an entitlement to a defence of contextual truth, there was no property in an imputation and an application to amend, if brought properly, should be granted in accordance with the accepted principles for the right to amend generally. This was particularly the case where there was a high degree of similarity between the plaintiff’s imputations and the defendant’s imputations, as is the case here. Her Honour said:

“[9] It may be observed that the plaintiff’s existing imputation (h) is almost exactly the same as the proposed new imputation (b) except that the existing imputation refers to a refusal by the Department of Fair Trading to renew the plaintiff’s building licence whereas the proposed new imputation refers to its refusal to renew the building licence of the plaintiff’s company, the extension factory.

[10] Similarly, the existing imputation (i) is almost identical to proposed new imputation (d) except that the existing imputation refers to the plaintiff’s having been banned by the Department whereas proposed new imputation (d) refers to the Department’s having refused to renew the company’s building licence on a particular date.

…

[32] In the present case, the plaintiff adduced evidence, which was not disputed, to the effect that counsel briefed in the matter had formed the view that the plaintiff’s imputations as contained in the amended statement of claim were the only defamatory imputations capable of arising from the matter complained of concerning the plaintiff. Counsel did not, in amending the imputations, seek to draw any distinction between the allegations as against the plaintiff personally and those against the company the Extension Factory. The position of the solicitor on the record was the same when he drew the original imputations.”

The parties’ submissions

18. Ms Chrysanthou submits that the factors that warrant refusal include the inadequately explained delay and statements in Ms Alfan’s affidavit suggestive that the plaintiff does not really complain about these defamatory imputations, and is really only amending to deny the defendant the defence of contextual justification. In particular, she points to the failure of the plaintiff to plead these imputations, although they are clearly reasonably capable of being conveyed.

19. Dealing with the first of the contextual imputations, Mr Rasmussen points out that the imputations pleaded by the plaintiff are not only Chase 1 imputations of guilt (Chase v News Group Newspapers Ltd [2002] EWCA 1772), but also Chase 2 imputations of reasonable suspicion. The contextual imputation of reasonable suspicion is thus not one that the plaintiff has shied away from pleading, and Mr Rasmussen submits that this is an imputation which, if the plaintiff had thought of it, would have been pleaded as yet another such suspicion.

20. However, similarity is not enough. Other factors which may be relevant include a consideration as to why the imputation was not pleaded in the first place. While it would be unfair to a plaintiff to be precluded from relying on an imputation similar to those already pleaded but which had “escaped the imagination of the pleader” in circumstances where the similarity was clear (at [22]), where the plaintiff was simply seeking to add in the contextual imputation not because it was false but to defeat the s 26 defence, the plea would not be allowed, as McCallum J noted at in Chel v Fairfax Media Publications Pty Limited [2015] NSWSC 171 at [23]:

“[23] I am not persuaded that the plaintiff seeks to vindicate her reputation against the defamatory meanings captured in the defendants’ contextual imputations. Indeed, in a tribute to the metaphysical agility required of practitioners in the field of defamation, Mr Rasmussen submitted, in the alternative to his application for leave to amend, that the contextual imputations should be struck out as being bad in form (contextual imputation A) or incapable of arising (contextual imputation B). This is not a case of visiting the plaintiff with the unfairness of a counsel of perfection, the vice illustrated in the remarks of Gibson DCJ. The plaintiff seeks leave to amend to plead imputations she eschews. I do not think the dictates of justice require me to allow that to occur.”

21. In order to overcome this problem, it became something of a regular practice for parties to provide the court with an affidavit setting out in terms comparable to Hall at [32] (see quote above). A similar affidavit was provided in Pahuja v TCN Channel Nine Pty Ltd [2015] NSWSC 1664 at [4]:

“[4] The application to amend is supported by an affidavit sworn by the plaintiff’s solicitor, Mr George Newhouse. The content of the affidavit persuades me that, in accordance with ordinary principles for amendment, it would be appropriate to allow the amendment, particularly since it is not opposed by the defendants in the circumstances I have indicated. Accordingly, the plaintiff should have leave to amend in accordance with the amended statement of claim annexed at p 23 of Mr Newhouse’s affidavit, subject to the determination of the second application.”

22. The affidavit in the present case is in similar terms. Ms Alfan states at paragraphs 3 and 4:

“3. On 7 December 2017 the plaintiff filed and served an amended statement of claim.

4. I am informed by, and verily believe, that counsel for the plaintiff briefed in the matter have formed the view that the plaintiff’s imputations as contained in the amended statement of claim were the only defamatory imputations capable of arising from the matters complained of concerning the plaintiff. Having considered the matters complained of and the imputations as pleaded in the amended statement of claim I am also of the same view.”

23. Ms Chrysanthou submits that what Ms Alfan is saying is that neither she nor counsel considers the contextual imputations as being capable of arising in that they claim that the only imputations capable of arising are those pleaded by the plaintiff.

24. A closer reading, in my view, makes it clear that the language of Hall at [32] has been followed quite closely, in that what Ms Alfan is stating is that when the amended statement of claim, which is currently on file was pleaded, counsel for the plaintiff thought that he had set out all of the imputations capable of arising and that she shared this view. The use of the present tense in the final sentence does not mean that either the deponent or counsel for the plaintiff continues to hold that view, in that they now seek to plead the two additional imputations.

25. Ms Chrsyanthou relies upon Jones v TCN Channel Nine Pty Ltd (No 3) [2016] NSWSC 922 at [2], [5] and [8]-[9], where there was asserted to be a high level of similarity in meaning. McCallum J noted that the application had been made promptly (as I am satisfied is the case here and that the issue was whether the court should exercise the discretion:

“[2] In short, the purpose of the proposed amendment is to allow the plaintiff to appropriate contextual imputations pleaded in a defence filed on 12 February 2016. Notice of the application was given promptly after that date, although in the context of the interlocutory history of these proceedings, that probably does not tell the full story. The complete history to the application is set out in the affidavit of Mr Vasilios Kalantzis sworn 20 April 2016.

…

[5] The focus of the contest in argument today has been, rather, whether the Court should exercise that discretion. Mr Richardson submitted, by reference to a colourful analogy comparing a beautiful retail shop display with one in which the mannequins are bare, that the argument for allowing the amendment in this case is considerably less attractive than the application I rejected in Chel. A principal consideration in his submissions on that issue is the fact that the affidavit of Mr Kalantzis sworn in support of the application asserts that the plaintiffs are of the view that the contextual imputations are not carried by the matter complained of and are not carried in addition to the plaintiff’s imputation.”

26. McCallum J then noted “two important differences”, the second of which is asserted to be particularly relevant to this application:

“[8] There are two important differences between this case and the circumstances in Chel. One is that what had been submitted in Chel by the plaintiff was that the imputations were incapable of arising, whereas in the present case it is acknowledged by the plaintiff that they are capable of arising; it is just that his counsel, Ms Chrysanthou, is of the view that those imputations are not in fact conveyed.

[9] More importantly, however, with one exception, the contextual imputations sought to be appropriated here carry the same, or substantially the same, defamatory sting as the plaintiff’s imputations. The difference rests in the fact that the plaintiff’s imputations allege that the matter complained of attributed him with having done certain things in the capacity of an owner of a particular business, whereas the contextual imputations rest on an attribution that he did those things in the capacity of general manager of the business. The evidence of Mr Kalantzis as to his belief as to whether the imputations are conveyed must be assessed in that specific context, which entails a degree of subtlety or nuance that did not arise in Chel.”

27. In the present case, however, the sting is not precisely the same. It is similar, in the sense of being a general imputation of reasonable suspicion (as opposed to suspicion based on individual acts), but clearly is capable of differing in substance.

28. The second contextual imputation, one of criminality, raises a new meaning entirely, namely that the plaintiff is a criminal. It cannot be said to be similar to any of the imputations pleaded.

29. Finally, on the issue of whether the application to adopt the contextual imputations is genuinely made, I note that in Sharp v Harbour Radio Pty Ltd (No 2) [2016] NSWSC 223, the plaintiffs had first sought to strike out the contextual imputation on the basis that it did not differ in substance from the plaintiff’s imputations or, alternatively, could not meet the requirement of s 26(b), loosely referred to as the “swapping” effect (at [5]). However, that application is expressly not made here.

The application of the principles to the facts of this case

30. As McCallum J explains in Jones v TCN Channel Nine Pty Ltd at [4]-[5], the court has, and may exercise, a discretion in relation to the permitting of the amendment. The exercise of that discretion will depend upon the facts of the case.

31. The first issue is whether there was delay in bringing this application such as to warrant refusal of the amendment.

32. The defence was filed on 7 March 2018 and the notification of the application to adopt the defendant’s imputations was made promptly, namely the night before the matter was next before the court, namely 28 March 2018, a delay of three weeks. However, I note Ms Chrysanthou’s complaint that these proceedings had been on foot for what she termed as “almost a year”, in that the action was commenced on 4 August 2017.

33. The main reason for the delay appears to have been lengthy discussion between the parties as to the meanings attributed by the plaintiff to the matter complained of, which effectively took the matter to 7 December 2017. There was no separate trial in relation to the capacity of the imputations, pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW), which I see as being of some significance, as the parties had simply failed to crystallise their positions as a result.

34. The unusual nature and content of the matters complained of meant that the distilling of imputations was a difficult task. The parties discussed these issues and filed their pleadings accordingly. It was only a matter of weeks after the defence was filed that this application was brought. I do not consider that there has been any delay of substance.

35. The next issue is whether the contextual imputations are in fact different from those pleaded by the plaintiff (Hall v TCN Channel Nine Pty Ltd at [8]-[9]). In relation to the first contextual imputation, as noted above, there are already contextual imputations of a very high similarity with the “reasonable suspicion” imputations pleaded by the plaintiff. It is difficult to see why leave to amend the statement of claim to enable the plaintiff to plead this imputation would be refused.

36. The third issue is the question of whether the application, in relation to the second imputation (“the plaintiff is a criminal”), is an abuse of process because it is true and known by the plaintiff to be true.

The imputation “the plaintiff is a criminal”

37. The defendant’s objection to the entitlement of the plaintiff to adopt this imputation is that this imputation is “undoubtedly true” (i.e. that the plaintiff is in fact a criminal, based on the particulars of truth provided) and that “the only purpose of this amendment is to seek to defeat the s 26 defence” (Ms Chrysanthou’s written submissions, paragraph 23). In other words, the proposed amendment is an abuse of process.

38. To give an example (taken from Toben v Nationwide News Pty Ltd (2016) 338 ALR 329), if a plaintiff who is a convicted Holocaust denier brings an action for defamation for a statement that he is a Holocaust denier would clearly be an abuse of process. If the publication is also asserted to give rise to imputations that the plaintiff lies about history, or is motivated by anti-Semitism, that would similarly be likely to be the case, particularly if the court were satisfied (as was the case in Toben v Nationwide News Pty Ltd) that the action was brought to put the Holocaust on trial rather than the plaintiff.

39. However, it should not be forgotten that this line of reasoning was never applied in Irving v Penguin Books Ltd [2000] All E R (D) 523, which is an indication of the degree to which the law in relation to abuse of process has developed over the past two decades. It is for this reason that recent decisions discussing these issues need to be analysed with care.

40. Ms Chrysanthou principally relies upon the observations of McCallum J in YZ v Amazon (No 7) [2016] NSWSC 637 at [32]:

“[32] Ms Chrysanthou, who appears for Amazon, submitted that, if the plaintiff has knowingly sued on true imputations, that in itself is an abuse of the Court’s processes. She submitted that the position is no different from the position of a plaintiff who, for example, deliberately sues on a true imputation so as to prevent the defendant from being able to plead that imputation as a contextual imputation, taking advantage of the principles considered in the decision of the Court of Appeal in Besser v Kermode [2011] NSWSC 174 (reported as Fairfax Media Publications Pty Ltd v Kermode 81 NSWLR 157) at [88]–[89]. Certainly, if it were established that the plaintiff had deliberately sued on imputations she knew to be true for a purpose ulterior to the purpose of vindicating her reputation (such as for the purpose of excluding a plea of contextual truth to other imputations), that would, in my view, amount to an abuse of process.”

41. I agree with Ms Chrysanthou that if a plaintiff “has knowingly sued on true imputations”, that is an abuse of process. I note similar observations in Fairfax Digital Australia and New Zealand Pty Ltd v Kazal [2018] NSWCA 77 at [6]-[7] and [43]:

“[6] A defamation action “is fundamentally an action to vindicate a man’s reputation on some point as to which he has been falsely defamed”. At common law once the plaintiff proved an imputation conveyed by the matter complained of to be defamatory, two matters at least were presumed. First, that some damage would inevitably be caused to the plaintiff’s reputation by the publication of defamatory matter. Secondly, that the matter complained was false.

[7] The plaintiff did not have to lead evidence on the issue of falsity. The plaintiff’s case went to the jury on the issue of damages with the uncontradicted presumption that the published matter was false. The plaintiff was, however, entitled to lead evidence of falsity in any case, and so achieve some restoration of reputation, and demonstrate increased hurt so as to attract a larger award of damages.

…

[43] Thirdly, a bare finding as to the substantial truth of some only of a plaintiff’s defamatory imputations does not necessarily deny his or her entitlement to continue complaining of those imputations, or forensic interest in doing so. That much follows directly from the proposition that a defence of justification cannot operate pro tanto to extinguish liability in tort. In any event, the evidence available for use in quantifying damages may depend on the continuance of such a complaint: see Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 at 119–120 (Neill LJ); John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [47]–[52] (Handley JA, Spigelman CJ and McColl JA agreeing). It is conceivable that evidence properly admitted with respect to such an imputation may assist a plaintiff’s case as to the injury to reputation caused by another defamatory imputation. What is more, a plaintiff may appeal against the finding as to substantial truth and thereby maintain his or her complaint in law.” (Footnotes omitted)

42. This issue squarely arose in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246, where the Court stated:

“[38] For those reasons, I considered that the conclusion of the primary judge was plainly right and that leave to appeal should be refused. Contrary to the submissions of the applicant, the refusal of leave to institute the proceedings in the present case does not hold that a prisoner may be defamed with impunity. The abuse of process lies in having instituted proceedings which, for whatever tactical reason commended itself to the pleader, sought a remedy for the applicant on the strength of imputations the truth of which cannot properly be controverted by her.”

43. This decision needs to be considered in light of the facts of the case. Ms Farrow, a convicted felon in jail at the time of the application, sought leave to commence proceedings for defamation arising from a newspaper report of her conviction for drug supply offences. The article correctly recorded the charges on which she was convicted and imprisonment, the circumstances in which she absconded while on bail and the facts in mitigation, which included admissions about drug use and prostitution, but wrongly asserted she had embarked on a relationship with a prison officer in exchange for being able to use his mobile phone. In her statement of claim, the plaintiff not only pleaded imputations which were false (concerning the prison officer) but also pleaded imputations concerning all the other material which was true, for “whatever tactical reason” (at [38]) the pleader considered advantageous.

44. There is a significant factual difference here. The plaintiff has not been charged in relation to any of the conduct attributed to him. If he is a “criminal”, proof of justification must come from other sources. Ms Chrysanthou provides the information as to what this evidence will be in her written submissions, (paragraph 25), where she states that, at the trial:

“…the plaintiff’s criminal history can be tendered by reason of s 42 Defamation Act 2005 and will prove true that he is a criminal. The plaintiff knows that he has a serious criminal history and is seeking to abuse the court’s processes by including the imputation as part of his claim”.

45. I also note the reference to the “car stop” on 17 August 2016.

46. Is the plaintiff a person about whom it can be said, by the tender of this criminal record and other evidence (for example, the car stop), a “criminal” in such terms that he is effectively “libel-proof” in relation to any imputation to this effect?

47. This is a difficult question, and there is very little authority on the issue; the term “libel-proof”, although used in the judgment appealed from at first instance, was not employed by the Court of Appeal in Farrow v Nationwide News Pty Ltd. However, the question of being “libel-free” was considered in some detail by Kirby J in his Honour’s dissenting judgment in Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.

48. I begin a consideration of this issue by noting that, to some ordinary law-abiding members of the public, the plaintiff’s criminal history may appear damning in its nature. To other members of the community, however, the absence of further criminal convictions (apart from the 7 February 2014 driving offence) after his release in 2009 may indicate that the plaintiff has turned the corner, at least to some degree. In those circumstances, is it the case that an imputation of being a criminal can be established by proof of convictions of this kind such that the plaintiff is effectively “libel-proof” even where the offences he is accused of in the matters complained of are in fact not matters for which he has even been charged? This was the issue which Kirby J considered, albeit in the context of an application for interlocutory injunction, in Australian Broadcasting Corporation v O’Neill.

49. The facts in Australian Broadcasting Corporation v O’Neill are helpfully summarised as follows by Professor D K Rolph in “Showing restraint: Interlocutory injunctions in defamation cases” (2009) 14 MALR 255 at 255:

“The disappearance of the Beaumont children from Glenelg Beach on Australia Day 1966 is one of the great, unsolved mysteries of contemporary Australian history. The enduring fascination of this event in the national psyche is attested to by the continuing revelation of fresh evidence or new theories to explain it. … It was the public ventilation of yet another theory about the disappearance of the Beaumont children that formed the factual background to the highest appellate consideration of interlocutory injunctions in defamation cases.

In the late 1990s, a documentary film-maker gained the trust of a convicted child-killer. He suspected the child-killer, who was serving a sentence of life imprisonment for his crimes, was also criminally involved in the disappearance of the Beaumont children, and made a documentary developing this theory. The documentary was screened at a film festival in Hobart, and was to be given an even wider audience when the Australian Broadcasting Corporation (ABC) purchased the rights to it and scheduled a screening in April 2005. The convicted child-killer successfully sought an interlocutory injunction in the Supreme Court of Tasmania restraining the proposed broadcast. An appeal to the Full Court of the Supreme Court of Tasmania was dismissed. The ABC appealed to the High Court of Australia, which, by majority, ruled in favour of publication, finding that the lower courts had made errors of principle.” (Footnotes omitted)

50. The plaintiff in those proceedings was already serving a sentence as a child-killer. Was he entitled to an injunction to prevent the broadcast of a documentary asserting he could have killed other children as well? The High Court, by majority, considered he was not entitled to an injunction because he had so little reputation left to lose.

51. Kirby J, in dissent, helpfully summarises the reasoning of the majority as follows:

“[158] The approach of the majority: By reason of the respondent’s earlier conviction of a heinous crime, the majority concluded that the already damaged reputation of the respondent meant that it was possible that he had little reputation to lose and would therefore recover only nominal damages if he made good his assertion that the ABC’s broadcast of the film would defame him and was not protected or excused by an available defence. It is suggested in the reasons of Gummow and Hayne JJ that this prospect operates as a “powerful factor in considering the balance of convenience to favour the denial of interlocutory relief”. Gleeson CJ and Crennan J suggest that this, too, is a reason why an injunction should have been refused and that the primary judge, and the majority in the Full Court, failed to take account of that possibility and, on that ground, to decline or dissolve the interlocutory injunction.” (Footnotes omitted)

52. Kirby J next noted the law in relation to “libel-free” individuals in the United States and Canada:

“[160] In the United States, the courts have considered the notion that some persons are “libel-free”, whether because of notorious criminal behaviour or anti-social conduct. However, the concept was rejected in 1984 by the Court of Appeals for the District of Columbia. In 1991 it was rejected by the Supreme Court of the United States. Although the notion has not entirely disappeared from reasoning in State courts in the United States, it has no supporting authority in Australia. Nor should it have, because the idea is alien to basic concepts of legal equality. It reflects ideas of outlawry that are incompatible with modern notions of the law making legal protection available to all on a basis of equality. The punishment for the respondent’s crime, of which he has been convicted, is his sentence to life imprisonment. It would be contrary to basic principle to add to that sentence an unenacted deprivation of protection under the law of defamation or the law of procedural remedies. As stated by Stewart J in Rosenblatt v Baer: The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being — a concept at the root of any decent system of ordered liberty.

[161] Hill v Church of Scientology of Toronto, a decision of the Supreme Court of Canada, endorsed this passage and stressed that the reputation of every human being deserved protection under law. “Reputation”, it was said, “is the ‘fundamental foundation on which people are able to interact with each other in social environments’. At the same time, it serves the equally or perhaps more fundamentally important purpose of fostering our self-image and sense of self-worth.” I agree with this analysis.”

53. His Honour then discussed the observations of Blow J in the court below (at [162]-[165]):

“[162] Unequal impact of law: But can it be said that, in practical terms, the respondent’s situation is such that he is not likely to be injured in his reputation nor, any more than he already is, prone to suffer from being shunned, avoided, ridiculed or despised?

[163] This argument was considered in the Full Court by Blow J. He answered it in a convincing way: The respondent’s reputation is already a bad one since it is well known that he is serving a life sentence for the murder of a child, and the Mercury has published material suggesting that he is suspected of involvement in the disappearance of the Beaumont children … But it was open on the evidence for the learned primary judge to conclude that the televising of the documentary in question might spread the respondent’s bad reputation more widely, and that members of the public might receive information injurious to his reputation that they had not received before. He made findings to that effect. In my view he did not err in doing so, and certainly did not act on a wrong principle.

[164] Even if the respondent might not recover large (or any) damages, because of his already diminished reputation, this would not mean that he would fail in an application to prevent the publication of a broadcast if the film were held at trial to contain serious falsehoods, or unjustifiable, unbalanced and unfair opinions to which no pleaded defence was applicable. Both the primary judge and the Full Court gave consideration to the question of whether damages would be a sufficient remedy for any wrong to the respondent. They rejected that suggestion. No error has been shown in their reasoning or their conclusion.

[165] With respect, then, I find the suggested oversight of the possibility that the respondent would recover only nominal damages a most unlikely hypothesis. It reflects an attitude to the rights of persons who approach the courts for relief which I would not embrace. Effectively, it means that any prisoner, serving a sentence for a heinous crime, is fair game for anything at all that a media organisation, such as the appellant, might choose to publish about him or her. I do not consider that this represents the law of Australia. In Falbo v United States, Murphy J remarked that “[t]he law knows no finer hour than when it cuts through formal concepts and transitory emotions to protect unpopular citizens against discrimination and persecution.” The wrongs to which his Honour referred are not confined to wrongs by government. They can, on occasion, include wrongs done by large media organisations, public and private.”

54. The same “libel-free” or “libel-proof” principles apply here. The literal truth of the imputation would need to be of the kind which clearly existed in Farrow v Nationwide News Pty Ltd (or, for that matter, in Toben v Nationwide News Pty Ltd).

55. In addition, as Mr Rasmussen submitted, the plaintiffs in YZ v Amazon (No 6) and in Farrow v Nationwide News Pty Ltd both knew the imputations they were seeking to plead were true.

56. The plaintiff in these proceedings is in a very different position. He has a criminal past, which includes a lengthy period of imprisonment for serious crimes. However, he was released from gaol in 2009 and has not been convicted of criminal offences since. Additionally, he is not charged in relation to any of the conduct the subject of the matter complained of (or, for that matter, for the asserted breach of bailment in the 2016 “car stop”).

57. Mr Rasmussen submits that the plaintiff should not have to carry the burden of being “libel-proof” for the rest of his life when he has served his time in gaol and sought to return to the community as a normal citizen. To regard a person such as the plaintiff as being branded for life as “criminal” is contrary to concepts of rehabilitation.

58. There is no support for the concept of a plaintiff being “libel-proof” in other defamation actions brought by serious offenders (see for example McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 (convicted murderer sues for documentary asserting other crimes also committed) and Bassett v Ironbark Press Pty Ltd (Supreme Court of New South Wales, Levine J, 21 October 1994) (convicted murderer sues for book asserting he was the prime suspect in the Wanda Beach and other murders)). The reason for this may be because they sued in relation to allegations for matters concerning which they had not been convicted.

59. An interesting problem arose in The Citizen 1978 (Pty) Ltd v McBride [2011] ZACC 11. The plaintiff was convicted of multiple murders during the time of apartheid and later granted amnesty pursuant to the Promotion of National Unity and Reconciliation Act, 1995. Subsequently, persons opposing his appointment to a public position called him a murderer. The Constitutional Court of South Africa stated:

“79. Does this mean that, despite amnesty, Mr McBride's conviction for murder can indefinitely be flung in his face? Can he be called a murderer 'forever and a day'? The answer is No. The common law of defamation conformably with the (2011) 31 BHRC 147 at 172 constitution (Khumalo v Holomisa [2002] ZACC 12, (2002) 12 BHRC 538 at paras 35–45) protects Mr McBride's right to reputation and dignity.”

60. While the grant of amnesty is very different to the concept of rehabilitation following completion of a period of penal servitude enabling a return to society, the principle is the same, namely that a person’s right to reputation is not one which is lost forever because of past acts, and certainly not to the extent that a person’s criminality is an issue that can be determined summarily. Whether the plaintiff’s criminal antecedents make him a criminal should be a disputed issue of fact for the trial, not for summary dismissal of his entitlement to plead a clearly defamatory imputation on the basis of abuse of process.

61. That is not to say that the plaintiff’s convictions will not play a role in the trial, although care must be taken to avoid misuse of evidence of bad reputation, for the reasons explained in Moran v Schwartz Publishing Pty Ltd (No 3) [2015] WASC 215. However, evidence of those convictions in the form of the plaintiff’s criminal record for other offences is insufficient to constitute proof of an imputation that the plaintiff is a criminal in the more innately existential sense claimed by the defendant.

62. For these reasons, I am satisfied that the adoption by the plaintiff of the defendant’s contextual imputation “the plaintiff is a criminal” should be permitted. It is not an abuse of process for the plaintiff to plead such an imputation.

63. The plaintiff is thus entitled to adopt both contextual imputations. Whether or not the plaintiff is a criminal will be a disputed issue of fact for the tribunal of fact – judge or jury – at the trial.

64. Finally, I note that there have been cases where, usually as a result of late pleading, leave has been granted only on the basis that the imputation, if proved true, will be revoked and the imputation will then return to its initial guise as a contextual imputation. There are no reasons why such an order should be made in these proceedings, given the early stage of the litigation and the structure of the defendant’s pleadings (and in particular the absence of any other plea of justification).

Costs

65. I have reserved the issue of costs.

Orders

1. The plaintiff is granted leave to adopt the contextual imputations identified in paragraph 14 of the Defence in each of the matters complained of.

2. The parties to have liberty to bring in Short Minutes of Order setting out a timetable which will include the filing of a further amended statement of claim.

3. Costs reserved, with liberty to apply.

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Decision last updated: 07 June 2018