DEFAMATION - Application to strike out defamatory imputations alleged in statement of claim - consideration of specificity and precision of imputations, confusion arising from imputations, differences in substance of imputations - particular defamatory imputations alleged in statement of claim struck out

Court Procedures Rules 2006 (ACT) r 425, 1701(2)

Uniform Civil Procedure Rules 2005 (NSW) r 14.30(3)

Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254

Baffsky v John Fairfax & Sons Ltd (1991) 106 FLR 21

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716

Feros v West Sydney Radio Pty Ltd (unreported, New South Wales Court of Appeal, 22 June 1982)

Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255

John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706

National Road and Motorists' Association Ltd v Nine Network Australia Pty Ltd [2002] ACTSC 9

Rendell v Federal Capital Press of Australia Pty Ltd [2003] ACTSC 100

Roe v Nationwide News Pty Ltd [2011] ACTSC 156

Russell v Win Corporation Pty Ltd [2013] ACTSC 159

Waller v Nationwide News Pty Ltd [2011] NSWSC 611

Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148

1. The plaintiff alleges she was defamed by a television broadcast on 8 July 2013. The pleading alleges that the plaintiff was defamed by a segment on "sham marriages". She alleges seven defamatory imputations. Paragraph 3 of the statement of claim provides:

3. The segment on "sham marriages" contained imputations defamatory to the plaintiff.

Particulars of defamatory imputations

(a) That the plaintiff's marriage was a "sham marriage";

(b) That the plaintiff's marriage was a "marriage of convenience";

(c) That the plaintiff's marriage was "nothing more than a business transaction" to gain a spousal visa and then permanent residence;

(d) That the plaintiff had targeted a vulnerable, lonely Australian, using him as a way to get into the country;

(e) That the plaintiff's situation was appropriate to describe in company with an investigation into a man seeking payment for an Australian marriage, and an investigation into a bigamist;

(f) That the plaintiff had perpetrated a "marriage scam" with her husband as the victim;

(g) That during her honeymoon, the plaintiff had only thought about "coming back to get her marriage certificate and to put in her visa application."

2. The defendant has taken issue with the pleading in the statement of claim. The application in proceeding dated 9 July 2015 relevantly seeks the following order under r 425 of the Court Procedures Rules 2006 (ACT):

1. The imputations pleaded at paragraphs 3(a), 3(b), 3(c), 3(d), 3(e) and 3(f) of the Plaintiff's statement of claim be struck out on the basis that they disclose no reasonable cause of action:
   1. Imputation 3(e) is imprecise and embarrassing and not capable of defaming the plaintiff;

b. Imputations 3(a), 3(b) and 3(f) are imprecise and embarrassing; and

c. Imputations 3(a), 3(b), 3(c), 3(d) and 3(f) do not differ in substance.

3. Prior to making the application the defendant wrote to the plaintiff asserting that paragraph (e) was defective. It received a brief reply which indicated that no amendment would be made to paragraph (e). As a consequence of this reply the defendant brought the current application and broadened its complaints to those set out above.

4. The principles governing the question of whether an imputation is capable of arising are summarised in Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36 at [61]- [62] ('Cummings').

5. If reasonable minds may differ as to whether an imputation is capable of being conveyed, then that imputation must be left to the tribunal of fact: see Cummings at [72]. The High Court's decision in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 ('Favell') illustrates that it may be difficult to successfully contend that a finder of fact could not reasonably conclude that the challenged imputation arose.

6. Imputations must be clear in their terms and imprecise imputations will be struck out: see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 140 ('Drummoyne'). I would however note that what is required in any given case involves a judgment being made as to the degree of particularity or generality which is appropriate to the occasion. In Drummoyne Gleeson CJ articulated the nature of the problem and the fact that the specificity of the pleading is very much dependent upon the circumstances of the case. His Honour said (at 137B): "If a problem arises, the solution will usually be found in considerations of practical justice rather than philology."

7. Similarly if an imputation is likely to cause confusion at trial it ought to be struck out, even if it has used the words used in the publication: Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155. The issue which has to be decided in any 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.

8. A plaintiff is required to specify the act or condition which he or she contends was understood by the ordinary reasonable reader as being attributed to him or her by the matter complained: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [129] ('Harvey'). Unless the terms of the matter complained of are so brief or so opaque that they do not permit the distillation of an act or condition, it is not sufficient to simply plead the words of the matter complained of: Harvey at [118]-[129]. This Court has accepted the need for precision in imputations in the same manner as is required in NSW: Baffsky v John Fairfax & Sons Ltd (1991) 106 FLR 21 at 32. However, I should emphasise that the requirement for precision and the avoidance of confusion are manifestations of the ordinary rules of pleading in the particular context of a defamation action. They respond to the requirements for practical justice as between the parties.

9. The defendant points to r 14.30(3) of the Uniform Civil Procedure Rules 2005 (NSW) which imposes a requirement that imputations must differ in substance. There is no comparable provision in the ACT. The purpose of the rule is to preclude the duplicated pleading of substantially similar imputations arising from the same publication. The defendant submits that the same principle ought to apply in the ACT, and that, at least in circumstances where the parties are already arguing capacity and form pre-trial, the Court should also deal with a difference in substance argument at the same time. This Court has accepted that imputations ought to differ in substance in a number of cases: Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 at 259; Rendell v Federal Capital Press of Australia Pty Ltd [2003] ACTSC 100 at [28]; Russell v Win Corporation Pty Ltd [2013] ACTSC 159 at [7]. An alternative course adopted in this Court has been to defer difference in substance arguments until trial: Roe v Nationwide News Pty Ltd [2011] ACTSC 156 at [24]. The extent to which such a principle should be imported to pleading in the Territory, where there is no equivalent rule, is a matter which, having regard to the conclusions that I have reached, is not necessary to consider in any detail in this case. I suspect that in any particular case it involves an exercise of judgment but one which needs to be made with a view to avoiding excessive refinement or encouraging non-essential interlocutory applications.

Imputations 3(a), (b) and (f) - are they embarrassing?

(a) That the plaintiff's marriage was a "sham marriage";

(b) That the plaintiff's marriage was a "marriage of convenience";

(f) That the plaintiff had perpetrated a "marriage scam" with her husband as the victim.

11. The defendant submits that these imputations are defective in form for their imprecision. The words "sham" and "scam" and the phrase "marriage of convenience" are simply reproductions of what was said in the matter complained of and there is no attempt to distil a condition. The terms are sufficiently vague to cause confusion at trial, in particular, the meanings of "scam" and "marriage of convenience". It submits that this is not a case where the matter complained of does not permit an act or condition to be distilled.

12. I accept the defendant's submission. No attempt has been made to articulate what the defamatory imputation actually is. By simply quoting words used in the broadcast the plaintiff has not explained what she says is the imputation, hence depriving the defendant of an understanding of what the plaintiff's complaint is. While in some cases it is appropriate to repeat the language of the matter published "more often an imputation must distil rather than recapitulate": Feros v West Sydney Radio Pty Ltd (unreported, New South Wales Court of Appeal, 22 June 1982) per Samuels JA at 5; Harvey at [121]-[123]. Where the words used in the publication are vague colloquialisms, merely repeating those words makes it difficult, if not impossible, for a defendant to properly frame and prove its defences. As McCallum J said in Waller v Nationwide News Pty Ltd [2011] NSWSC 611 at [21]:

Ultimately, however, it must be recalled that defamation is a cause of action which has, at its core, the meaning of the words used. The task of distilling the defamatory sting of the words insofar as they concern the plaintiff is critical. The approach of simply lifting whole phrases from the matter complained of is no substitute for that important step.

13. This is not a case where because of the nature of the publication any further exegesis of the imputation is not possible: cf John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706. Instead the nature of the publication was such as to permit a more detailed description of the imputation than merely reporting the vague colloquialisms used. Counsel for the plaintiff referred to the dictionary definitions of "marriage of convenience", "scam" and "sham". Such an approach misconceives the burden upon the plaintiff to articulate the defamatory imputation and in any event, when examined, the various meanings as set out in the dictionary only served to emphasise the uncertainty about the use of those terms.

14. For these reasons the pleading of these imputations is embarrassing and they should be struck out.

15. This imputation is: "That the plaintiff's situation was appropriate to describe in company with an investigation into a man seeking payment for an Australian marriage, and an investigation into a bigamist".

(a) The imputation is defective in form for its imprecision referring to a "situation" which is not then explained or defined.

(b) The imputation also does not disclose a defamatory act or condition. Merely saying someone is in a situation which is appropriate to describe in company with other unattractive situations, does not amount to a defamatory act or condition. There could be any number of reasons why it might be "appropriate to describe" various unfortunate situations together. That does not defame the participants in those situations. The imputation as presently drafted has no grounding in some act or condition for which the plaintiff is responsible that would cause ordinary decent persons to think less of her.

17. I accept the submission that the pleading is embarrassing in that it does not comprehensibly articulate what it is that is defamatory. It is necessary for the plaintiff to articulate how the association with the other stories was defamatory of the plaintiff. Saying "[t]hat the plaintiff's situation was appropriate to describe in company with" various other situations is not sufficient because, as the defendant points out, there may be any number of either defamatory or non-defamatory reasons for a particular aggregation of stories.

18. I also accept that the plaintiff is likely to be able to identify an imputation which arguably arises out of the context in which the story in relation to the plaintiff appears. However, at present the imputation does not describe the connection between the plaintiff's act or circumstances and the other stories in a manner which gives rise to a defamatory imputation.

19. As a consequence my conclusion is that the pleading is embarrassing and must be struck out.

Imputations 3(a), (b), (c), (d) and (f) - do they differ in substance?

(a) That the plaintiff's marriage was a "sham marriage";

(b) That the plaintiff's marriage was a "marriage of convenience";

(c) That the plaintiff's marriage was "nothing more than a business transaction" to gain a spousal visa and then permanent residence;

(d) That the plaintiff had targeted a vulnerable, lonely Australian, using him as a way to get into the country;

(f) That the plaintiff had perpetrated a "marriage scam" with her husband as the victim.

21. The defendant submitted in its written submissions that imputations 3(c) and 3(d) do not differ in substance because both seem to amount to an allegation that the plaintiff contrived to marry a man she did not love so she could obtain residency via a spousal visa. Counsel for the defendant did not press this submission at the hearing. In my view he was correct in doing so. There is a difference between contriving to marry someone whom you do not love in order to obtain a spousal visa and targeting a vulnerable lonely Australian in order to do so.

22. Further, the defendant submits that it may well be that imputations 3(a), 3(b) and 3(f) are in substance also making the same allegation, but due to their imprecision (dealt with above), this is unknown. In relation to this submission I agree that because of the defective pleadings it is not possible to tell whether they are in substance the same. Because these particulars are to be struck out it is unnecessary to further wrestle with their meaning.

23. In addressing the complaints made by the defendant I have been conscious of the need to avoid what Kirby J described as "excessive refinement" in any interlocutory contest about the pleading of imputations: Favell at [21]; and what Miles CJ described as the unnecessary "mystique and complexity surrounding defamation trials": National Road and Motorists' Association Ltd v Nine Network Australia Pty Ltd [2002] ACTSC 9 at [22]. However the defects with the present pleading involve a reasonably straightforward application of pleading rules of general application. Fundamentally, the defendant is entitled to know the actual point it has to meet. The pleading of imputations 3(a), (b), (e) and (f) do not make clear what the plaintiff's complaints actually are.

24. In relation to costs, the defendant gave proper notice of the points that it wished to raise prior to making its application. The actual submissions were very properly articulated in some detail in the written submissions provided shortly before the hearing. There does not appear to me to be any reason to depart from the usual rule that costs follow the event. However I consider it to be appropriate that the costs not be recoverable until the proceedings end.

1. Paragraphs 3(a), (b), (e) and (f) of the statement of claim are struck out.

2. The plaintiff has leave to file an amended statement of claim no later than 28 September 2015.

3. The plaintiff is to pay the defendant's costs of the application in proceeding dated 9 July 2015 and the costs thrown away by reason of any amendment made pursuant to order 2.

4. Pursuant to r 1701(2) of the Court Procedures Rules 2006 (ACT) the costs ordered to be paid by order 3 are not to be assessed or payable until the proceedings end.

5. The proceedings are listed for directions on 30 October 2015 at 10.00 am.

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.