Ahmed v Harbour Radio Pty Ltd

Judgment 1This is a separate trial, pursuant to UCPR 28.2, of questions arising in respect of the pleadings in a claim for damages for defamation. The questions for present determination concern the form of pleading certain of the imputations the plaintiff alleges were conveyed. The current pleading is a Second Further Amended Statement of Claim filed on 10 August 2010. The original Statement of Claim was filed in the Federal Court of Australia, and pleaded causes of action under the Trade Practices Act 1974, and in defamation. On 1 October 2009 Foster J struck out the Trade Practices Act claim, and transferred the defamation claim to this Court: see Ahmed v Harbour Radio Pty Ltd [2010] NSWSC 676. By that claim, the plaintiff alleged publication in the form of two segments of a radio broadcast on 21 May 2008. In the Second Further Amended Statement of Claim, she pleads two further broadcasts, at different times on 1 October 2009, the second in identical terms to the first. 2For the purposes of the present judgment only, I will assume the truth of the facts pleaded in the Second Further Amended Statement of Claim. 3All broadcasts were on Radio 2GB, of which the first defendant is the owner and proprietor. The second defendant, Mr Ray Hadley, was an employee, servant or agent of the first defendant. 4On the 21 May 2008 broadcast, Mr Hadley outlined what he called "a disturbing story" about the owner of a named seafood shop who, he said, had been convicted of the aggravated indecent assault of a young female employee. He then had a conversation with a caller, who he identified as the father of the victim of the offence. During the course of this conversation a great deal was said that was highly critical of the owner of the seafood shop, who is the husband of the plaintiff. Reference was also made to the plaintiff. Mr Hadley asserted that she had sought, against the father of the victim, an Apprehended Violence Order. Mr Hadley repeatedly referred to the plaintiff's husband as "a grub". At one point he also referred to "his grub of a wife". 5The plaintiff pleaded that this broadcast conveyed a number of imputations that defamed her, including an imputation in the following terms: "3(a) The Plaintiff is a grub in that she is a vile person." By email dated 9 March 2010 then counsel for the defendants notified counsel for the plaintiff that he proposed to challenge that imputation on the ground of form, in that it is "imprecise, vulgar abuse". He challenged some other imputations, but they are not presently material. 6These objections were dealt with by Nicholas J in the Defamation List on 10 March 2010: Kim Anne Ahmed v Harbour Radio Pty Ltd (NSWSC, 10 March 2010, unreported) in an extempore judgment. His Honour struck out imputation 3(a), saying: "3. The matter has been, effectively, resolved during the course of submissions and exchange between Bench and Bar. In my opinion, the imputation is bad in form. It is to be struck out, with liberty to re-plead." 7The plaintiff exercised the liberty granted and re-pleaded as follows: "3(a) The Plaintiff is a grub because she remains in business with her husband, a convicted sexual offender." It is apparent to me that the pleader misunderstood the flaw in the original pleading perceived by Nicholas J. In the imputation as originally framed, the pleader gave an explanation of the accusation that the plaintiff was "a grub" as being that she was "a vile person". In the reformatted imputation, the pleader gave a different explanation - that she remained in business with her husband, a convicted sexual offender. 8But the explanation of the term was not the focus of Nicholas J's criticism: it was the use of the slang, or colloquialism, "grub". Changing the explanation did nothing to meet the criticism that the form of the imputation was bad. 9The second and third broadcasts were made 17 months later, on 1 October 2009, at, respectively, 11.52am and 8.51pm. Mr Hadley referred to, and apparently read from, the judgment of Foster J in the Federal Court. 10The transcript of the broadcast annexed to the Statement of Claim is not as clear as it might be. It appears that Mr Hadley is reading from parts of the judgment, with his own comments interspersed. The transcript is not punctuated to identify those parts of what he said that were extracts read from the judgment, and those that were his own comments, although it is not difficult to draw inferences in that respect. 11Mr Hadley again referred to the plaintiff's husband as "a grub", and "a low life grub". The following also appears in the transcript: "In the conversation Mr Hadley called Mr Ahmed, 'A lowlife, a deviant, a dirty low bastard, this dirty filthy old bloke, this grubby 44-year-old, this grub'. Mr Hadley also made mention of the application [sic - applicant], who, according to the caller, had obtained an AVO against the caller. Mr Hadley called the applicant, 'His grub of a wife'." 12It seems to me that this passage is something which Mr Hadley read from the Federal Court judgment. The passage is followed by: "I did all of that." I take this last to be one of Mr Hadley's own interpolations into the reading of the judgment. 13The reading of the judgment resumed. Mr Hadley appears to be asserting that the claim made in the Federal Court proceedings under the Trade Practices Act was struck out, and the balance of the proceedings transferred to this Court. It may be inferred that "the balance of the proceedings" was the claim in defamation. 14The remainder of the transcript appears to be Mr Hadley's own comments. It includes: "This woman, Kim Ann (sic) Ahmed, married to this horrible beast, tried to sue me for defamation and she may well continue ... She's married to a lowlife grub who tried to perform a sexual act on a 17-year-old employee and was convicted of indecent assault and then she tried to line me up in the Federal Court for defamation. I'll tell who's been defamed in this, the little girl involved with your grub of a husband and her family. That's who's been defamed, you silly silly woman. You've got your just desserts ..." 15The plaintiff pleads that the second and third broadcasts conveyed five imputations defamatory of her. They are, in each case, pleaded as: "3B (and 3D) (a) The Plaintiff is a grub because she is married to a convicted sexual offender; (b) The Plaintiff is unfit to run the business of Seafood Lovers; (c) The Plaintiff is a silly woman; (d) The Plaintiff should be driven out of business because of her association with a convicted sexual offender; (e) The Plaintiff is a grub because she obtained an AVO against a caller to Mr Hadley." 16The defendants challenged each of these imputations, on the basis that they are not in proper form. During the course of argument, agreement was reached as to the imputations lettered 3(b), (c) and (d). 17The remaining challenges, to imputations 3B(a) and (e) and 3D(a) and (e) are based upon the use of the word "grub". In this respect, I observe, in passing, that while in the first broadcast, Mr Hadley directly referred (on one occasion) to the plaintiff as "his grub of a wife", in the second and third broadcasts he repeated this only by way of quotation from the Federal Court judgment. The reference to "grub" in these broadcasts were all in connection with the plaintiff's husband. 18The matter came before Nicholas J in the Defamation List in August 2010. Nicholas J raised a question concerning the use of slang in the framing of imputations, including where that slang was used in the publication the subject of the proceedings. Nicholas J directed the parties to provide submissions on that subject. 19I have to observe that the submissions received did little to address that question. Indeed, counsel for the plaintiff produced no written submissions and had little contribution to make in oral submissions. 20Counsel for the defendants did provide written submissions, but, except by reference to one previous authority, did not really address the question of the use of colloquialisms or slang in pleadings. 21By UCPR 14.30(2) a plaintiff making a claim in defamation must: "... specify each imputation on which the plaintiff relies ..." (italics added) 22In Feros v West Sydney Radio Pty Ltd (NSWCA, 22 June 1982, unreported), Samuels JA said that "specify" means "state categorically, explicitly or particularly the defamatory meaning", and that the imputations should be "clear and precise". This approach was approved in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 by Gleeson CJ. The question which arises is whether, in using the word "grub" in the imputations, the plaintiff has discharged the obligation to specify the defamatory meaning which she claims was conveyed. In the same case, Gleeson CJ approved a test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155, in the following terms: "... The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends." 23There is no doubt in my mind that the word "grub" was intended to, and did in fact, convey a defamatory slur of the plaintiff. There is no non-defamatory meaning that could be attributed to the expression. But that does not mean that its meaning is clear or unambiguous. It does not mean that the imputation pleaded on behalf of the plaintiff is "clear and precise". 24The difficulty inherent in a plaintiff's adopting, in framing the imputations, colloquial or slang language used by a defendant is neatly illustrated by Hunt AJA in Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 at [5]-[6]. There the word in question was "shonky". Hunt AJA traced the development, and the changing use, of "shonk" and "shonky", showing that they have no longstanding settled meaning. In that case the issue only arose on appeal. It appears that the trial proceeded with tacit agreement as to the meaning to be attributed to the word as used in the pleaded imputation. There, as here, the imputation was adopted verbatim from the words used in the publication the subject of the proceedings, although, in that case, no gloss was cast upon those words to explain the plaintiff's interpretation. 25It is sometimes the case that, by reason of lack of specificity in what is published by a defendant, a plaintiff is hampered in attributing a more precise meaning to the language used by the defendant than that language itself conveys. It is, after all, the language of the defendant: see, for example, Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682. However, the obligation remains upon a plaintiff to identify the defamatory meaning. It is quite possible that the language used by a publisher is so vague or unspecific as to leave open a range of meanings. In such a case, it is insufficient for a plaintiff to adopt, in the imputation, the language used by the defendant, and leave the question of its meaning to the jury, see Singleton v Ffrench (1986) 5 NSWLR 425. It is, of course, possible for a plaintiff to provide alternative translations of the defendant's language; but provide at least one translation a plaintiff must. 26This is not to impose too onerous a burden upon a plaintiff. The plaintiff brings proceedings in defamation because he or she asserts that whatever was published by the defendant conveyed a meaning defamatory of him or her. He or she must therefore be able to attribute some meaning to that language. It is articulation of that meaning - ie the meaning (or alternative meanings) for which the plaintiff contends - that is required by UCPR 14.30(2). 27This is the approach I took in Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273, where I said: "44 ... The words 'lucrative racket' have more than an element of the colloquial about them and are, in my opinion, unsuited to the formality required when pleading legal documents. They are, I accept, insufficiently precise for that purpose." I struck out an imputation pleaded in that form. 28I propose to take the same course in respect of the present imputations. 29The orders I make are: (i) Imputations 3(a), 3B(a) and 3B(e), and 3D(a) and 3D(e) are struck out; (ii) The plaintiff have liberty to re-plead; (iii) The plaintiff to pay the defendant's costs of the proceedings.