That is the only reference to "publication" being an issue for the jury.
10 The plaintiff contends that, conformably with the principles stated by Rogers CJ Comm D in Coopers Brewery Ltd v Panfida Foods (1992) 26 NSWLR 738, the defendants should apply to the Court, if so advised, to withdraw the admission.
11 It seems to me that in the absence of any other evidence, it can be taken that at the s7A trial the defendants admitted publication of the matter complained of for the purposes of the New South Wales jury determining the question of whether they published that matter carrying what was found to be the sole defamatory imputation. It is still open to the defendants to put the plaintiff to proof of the extent of publication on the issue of damages as provided for by the same subsection referred to above (see Bishop v New South Wales [2000] NSWSC 1042, per Dunford J).
12 To that extent the defendants are entitled to preserve their position in the Defence. No doubt discovery and interrogatories on the issue will be given and delivered, and it is to be assumed that the defendants will provide full and proper answers to interrogatories in respect of the issue of the extent of publication.
13 I decline to strike out so much of paragraph 1 of the Defence as is objected to.
14 The plaintiff seeks to have struck out the substantive defences pleaded in paragraphs 4, 6, 7 and 8 of the Defence and the accompanying particulars.
15 In paragraph 4 of the Defence the defendants plead a defence pursuant to s16 of the Defamation Act 1974, being a defence of contextual truth. The contextual imputations pleaded in that Defence are:
(1) the plaintiff was a dishonest broadcaster;
(2) the plaintiff was a dishonest broadcaster in that be betrayed his audience's trust in the integrity of his favourable on-air treatment of a company, by keeping secret an arrangement with that company under which a substantial benefit was provided as he directed;
(3) the plaintiff was a dishonest broadcaster in that he kept secret an arrangement with a company under which a substantial benefit was provided as he directed, which arrangement was calculated to influence the way in which he treated that company on air;
(4) the plaintiff betrayed his audience by secretly directing payment from an undisclosed source to influence his on-air conduct for the benefit of that source;
(5) the plaintiff abused his position as a broadcaster by failing to disclose to his audience the existence of a commercial arrangement which he knew his listeners might regard as likely to influence his on-air conduct;
(6) the plaintiff was a misleading and deceptive broadcaster in that he intentionally concealed relevant facts from his audience;
16 In paragraph 5, with respect to Victoria, Western Australia, South Australia and the Northern Territory the defendants appear to be pleading defences akin to "Polly Peck" defences, relying upon the same meanings as "the defendant's contextual imputations" and a defence by way of common sting founded in the first such (contextual/defendants') meaning. Paragraph 7 raises cognate defences in respect of publication in Queensland, Tasmania and the Australian Capital Territory and in paragraph 8 a similar approach is taken with respect to publication in Tasmania.
17 As to the availability as a matter of principle of such defences see my judgment in Whelan & Anor v John Fairfax Publications Pty Ltd & Ors, 1 November 2002, [2002] NSWSC 1028.
18 The pleading of this cascade of contextual imputations gave rise to what is now the standard dispute between a plaintiff and a defendant as to the considerations arising from such cases as Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36; Hepburn v TCN Channel Nine [1984] 1 NSWLR 386; Hansen v Border Morning Mail, Hunt J, unreported, 24 October 1986; NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd (1989) A Def R 50-055; Waterhouse & Anor v Hickie (1995) Aust Tort Rep 81-347; Harb v Illawarra Newspapers Pty Ltd, Levine J, unreported, 10 November 1995; TCN Channel Nine Pty Ltd v Antoniadis (1998) 4 NSWLR 682; Marsden v Amalgamated Television Services Pty Ltd, Levine J, 4 May 1998 BC9801908; McBride v Australian Broadcasting Corporation [2000] NSWSC 747, Levine J and John Fairfax Publications Pty Ltd & Anor v Blake (2001) 53 NSWLR 541.
19 As I remarked in Whelan, paragraph 25, it is fundamental to the consideration of all aspects of s16 on a strike out application, when the matter is in issue, that it be determined that the matter complained of is capable as a matter of law of carrying the pleaded contextual imputations (or defendant's alternative imputations). There is, with respect, a tendency in defendants to plead imputations which they are convinced they can prove in the hope that the matter complained of carries them, rather than to seek available imputations from the matter complained of and hope to be able to prove them.
20 The test to be applied in determining the availability of a possible contextual imputation for the purposes of s16 is no different, of course, to that propounded in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, namely that of "reasonableness".
21 On any fair and reasonable reading of the matter complained of, a conclusion safely can be reached that it is essentially quite focused in its dealing with the AMP and Mr Jones and South Sydney Leagues Club. I say this neither ignoring or notwithstanding so much of the submission for the defendants as points to the article being published in a context of banks and their dealings with Mr John Laws.
22 Any fair reading of the matter complained of will expose disparagement of the plaintiff in the context of the AMP matter.
23 The defendants' meanings seek to encapsulate notions of "dishonesty" in a generalised sense in relation to "a company"; "betrayal" by the plaintiff of his audience and "abuse" of his position as a broadcaster, with the notion of "misleading and deceptive" (conduct) thrown in to contextual imputation (6).
24 The defendants rightly concede that whether or not an imputation arises is a matter of impression and the ordinary reasonable reader is entitled to engage in a certain amount of loose thinking. The defendants go on to say, however, that the import of this matter complained of is "clear". It may be that certain of the meanings contended for by the defendants do not have their exact counterparts "in the denotative meaning" of the words employed. It is then argued that when one focuses on the real issues which the article addresses, there can be no question that the reader would understand it to suggest that the plaintiff had "betrayed" his audience, "abused" his position and engaged in that "deceptive and misleading" conduct.
25 As the plaintiff suggests, by looking at the contextual imputations, a strong impression is gained that they have been constructed or "tailored" with a view to extraneous matters which the defendants conceive they might have a chance of proving rather than by reference to the matter complained of itself. They are employed as a mechanism for "shoehorning" the defence into perceived parameters the Australian Broadcasting Authority inquiry as set out in the particulars; (the report of the ABA inquiry was delivered to me).
26 The defendants protest that the plaintiff cannot complain about a generalised imputation as to his dishonesty as a broadcaster when that concept, it is said, has by the plaintiff himself been made "generally" and then been specifically exemplified by reference to the AMP matter. I do not agree with the defendants' contention that the matter complained of is "clearly not confined to" the specific instance where the plaintiff entered into a "secret deal" with the AMP and that it invites the ordinary reader to consider the general character of the plaintiff - that is, a person who would enter into a "secret deal" - in circumstances where there is a public controversy in relation to Radio Station 2UE and its affiliates and/or presenters broadcasting comments of an editorial nature for which a fee or otherwise valuable consideration was received.
27 Contextual imputations 2 to 6 are "simply not there", that is, I hold to be incapable of being carried by the matter complained of. They are far-fetched, forced, strained and fanciful meanings.
28 As to the first contextual imputation that the plaintiff is a dishonest broadcaster, I reject that meaning; it is incapable of arising generally or more specifically as sought to be advanced by the defendants by reason of the invitation to the ordinary reasonable reader referred to, above. Such authorities as Maisel v Financial Times (1925) 112 LT 953 and MacGrath v Black (1925) 95 LJ KB 951 do not permit the defendants to run a case which those authorities sustain when there is no meaning available to found such a case.