Carrey v ACP Publishing Pty Ltd [1998] VSC 78

Carrey v ACP Publishing Pty Ltd [1998] VSC 78 - VSC 1998 case summary — Zoe

[14]

On a just reading of the imputations and the particulars it could not rationally be argued that each particular applied to each imputation. Mr. Sher, Q.C., who with Mr. M. Wheelahan appeared for the defendant, did not concede that this was a defect but in my judgment he ultimately offered no objection to an order being made that the defence be re-pleaded to meet the objection. To some extent his objection was also founded upon his contention that the effect of the decision of the Full Court in Barclay v. Cox [1968] VicRp 87; [1968] V.R. 664 was that the meanings assigned to the words by the plaintiff (that is, the imputations) do not give rise to separate causes of action and that the issue for the jury is whether the words were allegedly defamatory of the plaintiff. In Barclay this meant that the formulation by the trial judge of questions directed to whether the plaintiff had satisfied the jury that the words did have any of the meanings assigned to them by the plaintiff was incorrect. I have on other occasions expressed my view that that decision does not mean that courts are not able to strike out pleadings or order re-pleading prior to trial. Doubtless, as the Full Court in National Mutual Life Association of Australasia Ltd. v. GTV Corporation Pty. Ltd. & Ors [1989] V.R. 741 stated, the practice had grown up to plead the meanings for which the plaintiff contended (the appropriate imputations) because it was useful in delineating what the sphere of debate in that respect was and enabled the true issues to be perceived. The so-called Polly Peck sting or imputation alleged by the defendants was developed from 1986 on. These matters do not affect the question of how the ultimate issues will be put to the jury which must vary from case to case, so long as it is left to the jury to determine what is the true meaning of the words, among the possible meanings left to them for consideration. None of this, in my judgment, affects the responsibility of the Court, particularly in a hands-on specialist list, to make directions concerning the pleadings that will clarify the issues of meaning between the parties, and to introduce order into the chaos sometimes created by the inclination in one or both parties to have all of the issues thrown up and fall where they may.

[27]

Judicial expression of the test to determine whether or not a publication is defamatory has, not surprisingly, been varied and individual. It has been said that it should be viewed in a way that an ordinary reasonable person, not avid for scandal, reading it for the first time will understand it according to its natural and ordinary meaning. Such a person has been described as the reasonable reader, a right-thinking member of society, a reader of average intelligence. See the assembling of some of the tests or characteristics in the reasons for judgment of Kirby, J., Chakravarti paragraph 29. As the citation from Whelan indicates, the determination of whether or not the meaning contended for is open is capable of being determined at the pleading stage or at the trial stage. I hold the view, and have expressed it in decisions, that the decision of the Full Court of this State in Barclay v. Cox does not inhibit the power of the Court to determine that an articulated imputation cannot reasonably arise from the published words. The Court may strike out an imputation on that ground or in some cases because of the capacity of the permitted imputation to undermine the fair and orderly determination of the issue of defamation. The Court is not prevented from removing from consideration one or more of the alleged defamatory meanings. This is so even in jurisdictions such as Victoria in which the imputation is not the cause of action so that each separate imputation must be separately pleaded. The State of Victoria does not have legislation (for example, such as the New South Wales Act) which makes the imputation rather than publication the cause of action. In this State the pleading of imputations arises from the application of the modern rules of pleadings requiring particularity as devised by the common law and applied generally in defamation cases. Common law courts in Australia, including Victoria, have acquiesced in the procedure whereby plaintiffs plead and particularise the meanings for which they will contend at the trial arise from the published matter complained of, save in cases in which the defamatory meaning is beyond question, e.g. that the plaintiff is a murderer. See National Mutual Life (supra). The reason for permitting, perhaps even requiring the particularising of the meanings for which the plaintiff (or the defendant in the Polly Peck Case) contends is the practical one of facilitating and clarifying the sphere of debate for the trial. There has been some difference of view as to whether or not the plaintiff may rely upon meanings not pleaded by the plaintiff. The issue as to whether the plaintiff is to be confined to the meanings alleged to arise is a difficult one, later views being expressed that any conceivable meaning which a jury might find must be left for the jury's consideration whether or not the plaintiff argued for it. This was the view that drove Barclay v. Cox although, as I have indicated, that case is primarily concerned with the issue as to what might be left and the way in which it ought to be left to be considered by the jury. In Sungravure Pty. Ltd. v. Middle East Airlines Airliban S.A.L. [1971] HCA 4; (1975) 124 C.L.R. 1 Stephen, J. expressed the view that "having pleaded an innuendo the plaintiff was bound by it and was not free thereafter to rely upon some quite different meaning which he might seek to read into the words complained of, ... at least not one more injurious." In this State in National Mutual Life Association the Court expressed the view that the practice of pleading some specific meaning or meanings "could not alter the position that the judge was to decide what meanings were fairly open and was to leave to the jury all such meanings". This meant, and indeed it was said, that neither the judge nor the jury were confined to the meanings contended for by the parties. However that does not mean that there may be left to a jury meanings which the Court determines are not open. As Gleeson, C.J. stated, a practical approach to the dispensation of justice is significant in this area. In National Mutual Life Association the Full Court stated that it "would be most unlikely that the parties would between them fail to hit upon, at least approximately, all the reasonably open meanings".

[29]

The approach of Gaudron and Gummow, J. appears to have been that modern pleadings support the identification of the legal issues to be determined, in particular specifying the case to be made at trial and that the Polly Peck practice conformed with that principle, being really no more than the statement of the case to be made at trial by the defendant. For my purposes in respect of the matter presently being considered, the issue of possible diversion from the pleaded imputations at trial is of no great significance. What is of importance is to whether or not the imputation contended for by the defendant, that the sting of the article is that the plaintiff was "psychologically unstable" is reasonably open to the tribunal of fact, the jury. I do not take the view that the determination of that issue cannot include consideration of some of the practical consequences of leaving it, such as the expansion of the matrix of evidence to lengths that make the trial likely to be over-long, over-expensive and dominated by irrelevances. As such, it is likely to be unfair. It was this aspect that clearly concerned Brennan, C.J. and McHugh, J. in condemning the Polly Peck practice. They stated "A plea of justification, fair comment or qualified privilege in respect of an imputation not pleaded by the plaintiff does not plead a good defence. It is immaterial that the defendant can justify or otherwise defend the meaning which it attributes to the publication. In our view, the Polly Peck defence or practice contravenes the fundamental principles of common law pleadings. In general it raises a false issue which can only embarrass the fair trial of the actions". The issue for me is whether or not, in terms of the arguments advanced on either side, the sting or imputation contended for by the defendant that the article meant that the plaintiff was "psychologically unstable" ought, on the basis of the tests to which I have referred, be permitted to survive. I have already detailed some of the references indeed, all of them I believe, on which Mr Sher relied as indicating that meaning. Phrases such as manic, childish behaviour, immature attitudes, weird and wacky disguises and other matters to which he referred.

[31]

But the issue is what does the phrase "psychologically unstable" mean? It is a phrase virtually without boundaries since it might arguably draw within it any behaviour that is unusual, eccentric, not "politically correct", all of which would answer the description to some minds of amounting to or denoting psychological instability. Assume an article published in a newspaper that arguably raised the meaning that the plaintiff was, say, ostentatious, obnoxious and gave offence to all that he or she met. It is simple enough to allege that someone behaving in that way was psychologically unstable because the words arguably connote such diversion from the norms of appropriate human behaviour that the person must be unstable. I note that Mr. Sher in his argument claimed that the imputation of "psychological instability" was virtually co-extensive with "abnormal behaviour". I note that also that another time he submitted that the imputation was the plaintiff suffered from a "condition" that caused him to behave as ordinary people would not, that is behave abnormally. In my judgment, "psychological instability", unattended by some appropriate defining and limiting criteria, would permit the dragging in of every variant in behaviour from some assumed norm, permitting the defendant to justify the use of the phrase by reference to postulated behaviour that did not conform to the assumed norm, with grotesque and insupportable consequences to a plaintiff suing in respect of commonplace imputations. The allowing of such a vague phrase as "psychologically unstable" as a separate and justifiable imputation has the capacity to expand the "behaviour" issues in a trial for defamation to unacceptable limits with the consequence of an inordinate consumption of trial time, client cost and with some serious impact upon the capacity of courts in the modern world to deliver the trial process appropriately concerned with the real issues. As such, a plea of such elusive imprecise meaning ought not be encouraged. This was doubtless the consequence that Brennan, C.J. and McHugh, J. had in mind in the passage to which I have already referred.

At a glance

Court

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Before

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Judgment (40 paragraphs)

Parties