Bateman v Fairfax Media Publications Pty Ltd

JUDGMENT 1HER HONOUR: These are proceedings for defamation and injurious falsehood arising out of the publication of a number of articles in The Sydney Morning Herald. By their amended defence filed 16 August 2013, the defendants have pleaded defences of justification, contextual truth, honest opinion, comment and fair report. Dr Bateman has raised a series of objections to that pleading, some of which have already been determined: Bateman v Fairfax Media Publications Pty Ltd [2014] NSWSC 400; Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380. 2This judgment determines Dr Bateman's objections to the defendants' contextual truth defence under s 26 of the Defamation Act 2005. 3Section 26 provides: It is a defence to the publication of defamatory matter if the defendant proves that: (a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ("contextual imputations") that are substantially true, and (b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. 4A significant part of the argument in the present case was concerned with the proper construction of that section and, in particular, the content of the requirement that a contextual imputation be an "other" imputation carried "in addition to" the imputations of which the plaintiff complains. 5Before turning to the detail of the argument, it is helpful to recall some basic principles. The cause of action in a claim for defamation is the publication of defamatory matter (s 8 of the Defamation Act). In theory, all that is required to sustain a claim is the identification of the defamatory matter in question and the occasion of its publication. However, as a requirement of procedural fairness, the plaintiff must also put the defendant on notice of what he or she says the matter complained of means (that is, what it imputes to the plaintiff that is defamatory of him or her). That requirement is reflected in the rules of court, which require the plaintiff to specify the defamatory imputations upon which he or she relies: r 14.30(2) of the Uniform Civil Procedure Rules 2005. It is an important requirement because, although the cause of action arises in relation to the publication of the defamatory matter in question, some of the defences under the Act raise issues as to the truth or seriousness of the plaintiff's imputations. In particular, the imputations chosen by the plaintiff are the focus of the defence of justification under s 25 and are potentially relevant to the establishment of a defence of qualified privilege under s 30 and a defence of failure to accept a reasonable offer of amends under s 18 of the Act. 6A further provision of the rules is that a plaintiff is prohibited from relying upon two or more imputations unless they differ in substance: r 14.30(3). A logical corollary is that a plaintiff's imputation is taken to comprehend all imputations that do not differ in substance from it. Prior to the introduction of the Defamation Act 2005, s 9 of the Defamation Act 1974 provided that a plaintiff had a cause of action in respect of each imputation carried by the matter complained of. Under that statutory regime, a pleading that specified one or more imputations which did not differ in substance would have been bad for duplicity. The prohibition remains important in avoiding unnecessary and wasteful repetition but its punctilious enforcement should not become its own source of wastefulness. 7It was common ground in the argument in the present case that, just as a plaintiff's imputations must differ in substance from each other, a contextual imputation specified by a defendant must differ in substance from the plaintiff's imputations. Beyond that, the parties were in dispute as to precisely what is permitted or required of a contextual imputation specified for the purpose of a defence under s 26. 8Mr Dawson, who appears for the defendants, submitted that the requirement to differ in substance is the only requirement of a contextual imputation (apart from the obvious requirement that it must be reasonably capable of arising from the matter complained of). He submitted that, to the extent that decisions relating to s 26 suggest the existence of any additional requirement of a contextual imputation, those authorities are wrong. 9Mr Dawson submitted that the erroneous approach in current authority derives from a misunderstanding of the judgment of Spigelman CJ in John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205. That decision related to s 16 of the Defamation Act 1974, the predecessor to the present statutory defence of contextual truth. The defence under s 16 was in similar but not identical terms to s 26. The relevant requirement under s 16 was that "another imputation" was made by the same publication contextual to the imputation complained of by the plaintiff (the requirement of s 26 is that there be "an other imputation or imputations" carried "in addition to" the imputations complained of by the plaintiff). 10In considering the proper construction of the words "another imputation" in Jones, Spigelman CJ said (at [16], [19] and [20]): "16 In my opinion, the words "another imputation" are not satisfied where a defendant relies on a contextual imputation which is, in substance, nothing more than an alternative way of formulating the same imputation relied on by the plaintiff, based on exactly the same words in the matter complained of and applying those words in exactly the same way. Such is not a case where, to use Hunt J's formulation, the contextual imputation is "capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation". (Allen v John Fairfax supra and Hepburn v TCN Channel Nine supra.) ... 19 It may well be that the imputation found by the jury differs in substance from the contextual imputation. Plainly, the Claimant is correct to submit that a single publication may convey two or more imputations of different degrees of seriousness. It is also correct to say that what may be proved by way of justification of the imputation found by the jury differs from what may be proved by way of justification of the contextual imputation. None of this determines the proper meaning of the words in s16. Whether or not an imputation is a permissible alternative if pleaded by a plaintiff does not mean it is "another" imputation for purposes of the s16 defence. The test for plaintiff's imputations - differ in substance - is a necessary but not sufficient test for 'another' imputation, which requires a difference in kind. 20 In my opinion, the purpose of s16 was directed to a situation in which the same publication conveyed imputations which differ in their character, not merely a different way of formulating the same imputation at a higher level of generality. The examples outlined in Plato Films supra are the former. The contextual imputations in issue here are the latter." 11Mr Dawson submitted that those remarks have been wrongly understood to impose an additional requirement (beyond the requirement that a contextual imputation must differ in substance from the plaintiff's imputations) that a contextual imputation must be different in character or kind from those specified by the plaintiff. He submitted that, if that is a correct analysis of the Chief Justice's remarks, it is not a principle that enjoyed the support of a majority of the Court in Jones and accordingly is not binding. Mr Dawson further submitted that, even if that is a proposition for which Jones stands as authority, there is no warrant for construing s 26 in the same way. Finally, Mr Dawson noted that there is no decision of the Court of Appeal applying Jones in the manner explained above to the defence under s 26 of the 2005 Act. 12Mr Dawson accepted that the proper application of the principles stated in Jones to the 2005 Act has been considered at first instance by Simpson J in Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645 and by Nicholas J in Con Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204. He submitted that each of those decisions adopts the erroneous approach of applying the remarks of Spigelman CJ in Jones as imposing an additional requirement to the defence of contextual truth beyond the requirement that a contextual imputation must differ in substance from the plaintiff's imputations. 13Mr Dawson noted that each of those decisions was published before the decision of the Court of Appeal in Besser v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157. The correctness of applying Jones in the context of the 2005 Act did not arise in Kermode. However, Mr Dawson submitted that it is of significance that, in a careful and lengthy survey of the relevant jurisprudence, McColl JA in Kermode did not refer to the decision in Jones in the context of her Honour's discussion of the s 26 defence, but only in the context of her discussion of the s 16 defence (her Honour considered the s 16 defence at [65] to [74], referring to Jones at [68] and [69]; but see her Honour's consideration of the position under the 2005 at [75] to [86], where there is no reference to Jones). 14It is important to consider what was in dispute in those authorities. The vice of the contextual imputation rejected by the Court of Appeal (by majority) in Jones was that it was "merely a different way of formulating the same imputation at a higher level of generality" (at [20]). The plaintiff's imputation was that he "was a dishonest broadcaster in that he secretly agreed with the AMP Society that he would cease to criticise the AMP Society on air in return for the AMP Society agreeing to provide a substantial benefit to the South Sydney Rugby League Club of which he was Director of Football". The imputation was one of dishonesty but it avoided the trap of opening the door to a broad attack on the plaintiff's character by providing a very specific description of the dishonest conduct allegedly attributed to him by the matter complained of. The contextual imputation was that he was a dishonest broadcaster, paving the way for proof of the imputed dishonesty by reference to conduct other than that referred to in the matter complained of. 15The objection determined by Simpson J in the relevant passage in Ange raised a different issue. The contextual imputation was that the plaintiff is a pornographer. The plaintiff had not pleaded any imputation that linked him with pornography. It was, to borrow the language of McColl JA in Kermode at [85], a serious sting that he had avoided by selective pleading. 16With great respect to Mr Dawson, I do not think it does justice to Simpson J's careful analysis of the present law to say that her Honour "adopted the erroneous approach that the Chief Justice's remarks [in Jones] added something to the defence of contextual truth". Her Honour undertook a careful analysis (at [42] to [80]) of the decision in Jones, its application in the context of s 26 and the ways in which the present statutory defence might properly operate based on the language of the section. 17Her Honour said (at [61]): "The pitfalls for a plaintiff of pleading an imputation too widely are well known (see Maisel). The more generally the imputations are pleaded, the greater the scope for the defendant to justify, and to do so by proving matters far removed from what was published. An imputation, in general terms, of dishonesty (even where the publication is confined to a specific instance of dishonesty) may be met by proof of dishonesty of a different kind. By drawing such an imputation too widely or generally, a plaintiff may create a trap for himself or herself. A plaintiff can seek to avoid creating that trap by pleading the imputation narrowly - thus making it more difficult for the defendant to justify. On the authority of Jones, a defendant cannot expand the area of misconduct by pleading a contextual imputation related to the same class of misconduct, but framed in general terms." 18Those remarks were cited with apparent approval by Le Miere J in Ives v The State of Western Australia (No 8) [2013] WASC 277 at [85]. 19In considering whether to allow the pornographer imputation to stand as a contextual imputation, Simpson J considered that the question posed was precisely the same as the question posed in Jones. It was the answer that was different. That was because the plaintiff in Ange had "steered clear" of pleading any imputations associating him with pornography, with the result that the contextual imputations were "other imputations" within the meaning of the section. That conclusion was reached not by reference to any gloss on the words of the section drawn from the remarks of Spigelman CJ in Jones. On the contrary, I would respectfully venture the view that each judgment (Spigelman CJ in Jones and Simpson J in Ange) correctly explains the proper application of the relevant section, which is concerned with placing selectively pleaded imputations in their true context. 20The decision of Nicholas J in Con Ange also considered the application of the decision of the Court of Appeal in Jones. His Honour said (at [27]): "In my assessment, the cases show that, for the purposes of s 26(a), to prove that the matter carried in addition to the plaintiff's imputations one or more other imputations, a defendant must show that such imputations differ in substance from the plaintiff's imputations. Accordingly, an imputation which is pleaded as an alternative formulation of the very imputation relied upon by the plaintiff could not be one carried in addition to that imputation. Put another way, it is not enough for a defendant to show that it is another imputation merely by reference to its formulation. The statute requires that it be carried "in addition to" the plaintiff's imputation, which involves showing that it is different in substance from that imputation. For example, as in Jones, if the defamatory sting of the defendant's broad imputation was substantially similar to the defamatory sting of the plaintiff's narrow imputation, it would not meet the requirements of s 26(a) of the Act." 21In a number of cases, I have acceded to the submission put by various plaintiffs that his Honour's decision expressly endorses the proposition drawn from the remarks of Spigelman CJ in Jones that a contextual imputation must not only differ in substance but that there must be a difference in character or kind. Those decisions have frequently been cited back to me as authority for that proposition: eg Kelly v Harbour Radio [2013] NSWSC 9 at [2] to [3]; Liu v Fairfax Media Publications [2013] NSWSC 7 at [17] to [22]; Tauaifaga v TCN Channel 9 Pty Limited [2013] NSWSC 8 at [6] to [7]. 22However, as I recently endeavoured to explain in Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453 at [19] (a case involving a different Mr Jones), the remarks of Spigelman CJ in Jones were intended to explain rather than to supplant the statutory test. The test of difference in character or kind is not a formulation that appears in either section (s 16 of the 1974 Act or s 26 of the 2005 Act) but it is a helpful explanation of the object of the defence. 23It does not follow that the only requirement of a contextual imputation is that it must meet the requirement of the rules that it differ in substance from the imputations relied upon by the plaintiff. To state a test in those terms would, equally, put a gloss on the terms of the section. Ultimately the question is whether a contextual imputation is reasonably capable of satisfying the terms of s 26(a). But that question must be answered with an understanding of the purpose, and limits, of the defence, properly construed. 24In Con Ange, Nicholas J noted that s 26 expressly incorporates the language adopted by Hunt J in Allen v John Fairfax & Sons (Supreme Court of New South Wales, Hunt J, 2 December 1988, unreported). 25His Honour expressed the view (at [26]) that the incorporation of the phrase "in addition to" in s 26 "encapsulates" the following issues for the Court identified by Hunt J in that case: (a) Whether the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) differs in substance from the plaintiff's imputations to which it is or they are pleaded as a defence. (b) Whether the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) is or are capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which it is or they are pleaded as a defence. 26Nicholas J was of the view that the inclusion of that phrase in s 26 "removes any erstwhile confusion about what is required to establish a contextual imputation as a defence". I would understand those remarks as endorsing, rather than qualifying, the application of the principles stated in the decision of the Court of Appeal in Jones in the context of the 2005 Act. 27Mr Dawson also drew my attention to the decision of Rares J in Crosby v Kelly [2013] FCA 1343. In that case, the plaintiffs sued on specific imputations that they had introduced to Australia 'the morally disreputable practice of pretending to conduct a genuine and objective opinion poll while actually disseminating to participants in the supposed poll material unfairly slanted against those persons or groups to whom the conductors of the supposed poll are opposed with a view to surreptitiously and dishonestly prejudicing participants against those persons or groups." 28The defendants pleaded a contextual imputation that each plaintiff was a hypocrite. In considering the permissibility of that pleading, Rares J expressed the following view as to the decision of the Court of Appeal in Jones (at [23] to [25]): "The decision of Spigelman CJ and Ipp JA in Jones [2004] NSWCA 205 that a general contextual imputation cannot meet a pleaded more specific imputation under the 1974 Act is not binding on the construction of s 136. It concerned a differently worded section in a different statute and context: Kermode [2011] NSWCA 174; 81 NSWLR 157; see too McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; (2005) 221 CLR 646 at 661-662 [40]-[43] per McHugh, Gummow and Heydon JJ. I am of opinion that Hodgson JA correctly explained in Jones [2004] NSWCA 205 at [79] (and see too at [89], with Ipp JA's agreement at [115]) the position at common law as follows: "Maisel [84 LJKB 2145] supports the proposition that, where a plaintiff in a defamation proceeding alleges to the effect that the defendant's publication meant both that the plaintiff had committed a particular discreditable act and that the plaintiff was of bad character, the defendant can put on a defence justifying the latter allegation by reference to other conduct of the plaintiff suggestive of the relevant bad character, which the defendant can then seek to prove at the trial. To similar effect is the case of MacGrath v Black (1926) 95 LJKB 951. This is because, at common law, where a libel contains several charges, a defendant can justify some only and thereby mitigate damages: see Gatley on Libel and Slander (7th edition) [1045]; Sutherland v Stopes [1925] AC 47 at 78; Plato Films Ltd v Speidel [1961] AC 1090 at 1141-42. The part justified must be severable from the rest, but the test of severability seems not to be very exacting: Plato Films at 1141-42, Goody v Oldham Press Ltd [1967] 1 QB 333 at 340." (emphasis added) I reject the argument of Messrs Crosby and Textor that the applicants' imputations preclude Dr Kelly being able to rely on the contextual imputations of hypocrisy. I am satisfied that, first, the matter complained of is capable of conveying an imputation that each applicant is a hypocrite and, secondly, that this imputation is not the same as the applicants' imputations and should not be disallowed on the basis of the reasoning of Spigelman CJ and Ipp JA in Jones [2004] NSWCA 205 which Simpson J appeared to have followed in Ange v Fairfax Media Pty Ltd [2010] NSWSC 645 at [55]- [59]. However, her Honour did not refer to the opposite conclusion reached by Hodgson JA and Ipp JA as to the availability of the general imputation as a defence at common law or to the different statutory language or other considerations subsequently discussed in Kermode [2011] NSWCA 174; 81 NSWLR 157." 29With great respect to Rares J, it is not correct that Simpson J did not refer to the different statutory language. Further, her Honour's decision (which was concerned with the statutory defence) does no violence to the statements of Hodgson JA in Jones regarding the common law. Those remarks (of Hodgson JA) were made in the context of his Honour's consideration of the interstate defences, specifically, the extent to which the defences in question could be maintained in jurisdictions that did not have any equivalent to s16 of the New South Wales Act (the 1974 Act). 30In any event, the hypocrite imputation in Crosby was not "merely a different way of formulating [the plaintiffs' imputation] at a higher level of generality". Hodgson JA agreed with Spigelman CJ that a formulation of the same imputation at a higher level of generality is not "another imputation" within the meaning of s 16. His Honour said (at [99]): "it was for that reason that I rejected many of the defendant's contextual imputations, apart from the first. Mere "anonymising" is not enough. However, if a formulation at a higher level of generality makes the imputation different in substance, then this is not a formulation of the same imputation at a higher level of generality. In the present case, my view is that an imputation of general dishonesty as a broadcaster is at least capable of being substantially different (because wider and more thorough-going) from an imputation of dishonesty as a broadcaster in that a particular act is performed; and accordingly this aspect of the defence should not have been struck out in advance of the hearing." 31In my view, none of the approaches in the separate judgments in Jones required the rejection of the contextual imputation propounded in Crosby. 32Perhaps there is less complexity in the authorities than the foregoing discussion suggests. Ultimately, the question is whether the defence as pleaded is reasonably capable of meeting the requirements of the section, properly construed. In accordance with s 26(a), one requirement of the defence is that a contextual imputation must be an "other" imputation carried in addition to the imputations of which the plaintiff complains. 33In my respectful opinion, the Chief Justice's analysis of the proper operation of the defence under the 1974 Act in the decision of the Court of Appeal in Jones at [16] to [20] was correct and holds true for the different defence under the 2005 Act, as explained by Simpson J in Ange. That analysis is consistent with the remarks of McColl JA in Kermode where her Honour accepted (at [85]) that the mischief to which the s 26 defence was directed was "the defect in the common law position identified in Plato Films Ltd v Speidel [1961] AC 1090". That was a reference to the fact that, at common law, where a matter conveyed imputations of a different character (murder, theft and failure to attend church), a plaintiff could sue on the imputation of failure to attend church and, if that imputation was not true, it was no defence to say that the more serious imputations of murder and theft were substantially true. The publisher was fixed with the plaintiff's selective pleading. 34That is the mischief addressed by the statutory defence. McColl JA thus explained the operation of s 26 as follows (at [85]): "A defendant will be able to defeat a plaintiff's cause of action if its substantially true contextual imputations outweigh the plaintiff's defamatory imputations. A plaintiff will not be able to avoid serious stings in defamatory matter by selective pleading. This represents a substantial advance for all jurisdictions other than New South Wales which had no contextual truth defence." 35In my view, whether or not one wishes to adopt the language of difference in character or kind, it is clear that, on the proper construction of the section, an imputation which merely meets the technical pleading requirement of differing in substance from a plaintiff's imputation will not necessarily, for that reason alone, be capable of falling within the terms of s 26(a). Each case must be determined on its own facts. If the operation of the section otherwise defies precise explanation or prediction, that is a reflection of the fact that the tort of defamation is exquisitely concerned with the meaning of words, which (were it not for the discipline of the Civil Procedure Act 2005) could be debated endlessly.