She went on to say:
"22. Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field.
…
24. As I have sought to indicate, there is no easy answer to the question whether separate items should be regarded as individual or composite. Each case will have to be assessed on its own facts and circumstances. One relevant consideration, as Hunt J mentioned in Burrows , arises where the terms of one part of the publication invite the recipient also to receive the other. Thus, the serialisation of a book may be seen to invite the reader to read each instalment. This would suggest pleading a composite publication. On the other hand, where the instalments are published at weekly or longer intervals, they may more readily be seen as separate and distinct publications.
25. Another relevant consideration might be the diversity of the content of the individual items. Where the content of one is significantly different from the content of the other, quite different imputations might arise, and quite different defences might be able to be raised. In such a case one would generally expect the items to be pleaded separately."
15 In this case the plaintiff has elected to proceed as though the letter was a separate publication. In my opinion it cannot be said that it is not reasonably open for him to do so. This is not a case in which there are difficulties in distinguishing it from each of the other documents as, in my opinion, the differences between each are self-evident.
16 The content of each of the documents under consideration, including the letter, is different from that of the others. Although linked to the general subject of the financial position and outstanding debts of the second defendant allegedly attributable to the conduct of Abel whilst under the plaintiff's control, each is addressed to different aspects of the dispute between the companies. For example, the covering letter is concerned with a proposal to creditors not to require payment of the second defendant's debts to assist in its dispute with Abel, whereas the letter is concerned with criticism of the plaintiff's conduct on various grounds which prefaces a proposal for settlement of the dispute. Furthermore, in my opinion, there is nothing contained in the letter which would suggest to the ordinary reasonable reader that it should be read with the other documents in order to understand what the defendants were saying about the plaintiff. Each of the documents, including the letter, is intelligible without reference to the others.
17 Furthermore, the matter contained in the opening paragraphs of the letter constitutes a criticism of the plaintiff of a kind entirely different from criticisms of him contained in other parts of the other documents. It is an attack upon him as a lawyer, whilst the other criticisms are of him as the controller of the company with whom the defendants are in dispute. The allegations of professional misconduct made in the letter are not made in any of the other documents.
18 The defendants have failed to show that the letter and the documents can only be properly pleaded as a single publication, and that the only view reasonably open is that they constituted one publication.
19 In the result, the defendants have failed to clear the first hurdle. Had they done so, they would have failed at the second. This is because, in my opinion, the only material capable of conveying the plaintiff's imputations is contained in the letter. There are no statements in the other documents which are capable of changing the complexion of those pleaded imputations so as to attract the application of the principles considered in Gordon.
The challenge to the imputations
20 As to imputation 4(a), the defendants submitted that it should be struck out as defective in form and/or as incapable of arising from the letter in its natural and ordinary meaning.
21 It was put that the allegation that the plaintiff "… engaged in unethical, disgraceful and dishonourable conduct which constituted professional misconduct" lacked necessary precision, and also rolled up a number of allegations which should have been pleaded as separate imputations. In my opinion, the pleading meets the test of precision as explained in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255. The phrase was intended as a hendiadys based on the first two paragraphs of the letter and, so understood, is not confusing, and does not breach the pleading requirements that it should not roll up two or more separate and independent concepts. As to such form of pleading, Hunt, J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, p 157 said:
"Occasionally, a plaintiff pleads an imputation that he is, for example, unfit to hold public office by reason of a number of different matters asserted in the matter complained of. Such an imputation does not breach those pleading requirements but, in order to succeed in establishing such an imputation, the plaintiff must usually establish that the matter complained of was understood as asserting each and every one of the different matters specified in the imputation; if he fails in relation to any one of them, the whole imputation fails whether or not those assertions which are accepted by the jury justified by themselves the sting that the plaintiff was unfit in the manner pleaded."
22 The challenge to capacity must also be rejected. The test has recently been stated in Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 (para 30) by Beasley, JA (Basten, JA, McClellan CJ at CL agreeing) to be that in circumstances where reasonable persons may differ as to their understanding of the publication, the matter is one that must, in accordance with authority, be left to the jury.
23 In my opinion, there is sufficient material in the opening paragraphs of the letter which commence with the words "Common law defines …" and end with the words "…your unprofessional behaviour during the past 18 months" for it to be open to a jury to find that the ordinary reasonable reader would conclude that the defendants are making an allegation in terms of this imputation.
24 As to imputation 4(b)(i), objection was taken on grounds of form and/or capacity.
25 It was put that the phrase "grossly misconducted himself" was ambiguous and imprecise and, therefore, rendered the imputation defective. I do not accept the submission. In my opinion, the terms of the imputation sufficiently specify the allegation concerning the plaintiff's conduct said to be conveyed by the letter. Its meaning, when read in the context of the whole of the letter, cannot reasonably be doubted.
26 As to capacity, this imputation is capable of arising from the contents of the letter read as a whole and, in particular, the passage referred to in relation to imputation 4(a). In my opinion, the question of the degree of misconduct arising from the use of "grossly" claimed to have been attributed to the plaintiff in the letter is quintessentially one for the jury. Having regard to the whole of the letter, it is arguable that the likely impression given to the ordinary reasonable reader is that the plaintiff had grossly misconducted himself as pleaded. The objection as to capacity fails.
27 As to imputation 4(b)(ii) objection was taken on grounds of form and/or capacity.
28 In my opinion the objection that the pleading failed to specify the act or condition of the plaintiff with requisite precision should be upheld. It is unnecessary to determine the capacity question.
29 In my opinion the vice of the imputation with the phrase "… as to warrant five other lawyers coming to the view that he was guilty of such serious professional misconduct as to make them ashamed to be lawyers" is that it leaves vague and uncertain the conduct or behaviour of the plaintiff which warranted the outcome described. It necessarily leads to confusion about what the defendants would be required to prove in order to establish its truth so far as it concerns the plaintiff. This imputation will be struck out, with liberty to replead.
Conclusion
30 I hold that the letter, being the matter complained of, is reasonably capable of conveying imputations 4(a), (b)(i) and (c).
31 Order that imputation 4(b)(ii) be struck out, with liberty to replead.
32 Otherwise the defendants' application is dismissed.
33 Order that the plaintiff file and serve any amended statement of claim by 4pm 26 October 2007.
34 The proceedings are stood over for directions to the defamation directions list 9.30am 12 November 2007. Failing agreement on the question of costs, the parties may raise the issue on this occasion. The parties will also have the opportunity to be heard as to whether the proceedings should be referred to mediation.
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