The contextual imputations
12The plaintiff's application to strike out the contextual imputations was taken to be under UCPR Pt 14, r 14.28(1). The ground for the challenge was that each contextual imputation was incapable of meeting the requirements of s 26(a) of the Act in that it did not differ in substance from the plaintiff's imputations and, hence, could not be another imputation "in addition to" those of which the plaintiff complains. (It was accepted that a ruling in respect of the contextual imputations pleaded in par 14(a) of the defence would apply to those pleaded in pars 15(a), 16(a), and 17(a).)
13Section 26 provides:
"26 Defence of contextual truth
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."
14The issues of law which will arise in relation to a defence of contextual truth under s 26 are similar to those which arose under s 16 Defamation Act 1974 (the 1974 Act). Relevantly, s 16(1) provided:
"16 Truth: contextual imputations
(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of."
15The defence under s 16 was explained in Allen v John Fairfax & Sons [NSWCA, 2 December 1988, unreported] by Hunt J (p 6-p 8) as follows:
" The defence of contextual truth afforded by s16 accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence is available to the cause of action based upon that imputation. It asserts that the imputations pleaded by the defendant (the contextual imputations) are also conveyed by the matter complained of and that, even though the plaintiff's imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant's contextual imputations upon the plaintiff's reputation that the publication of the imputation of which he complains did not further injure his reputation (in the sense that it did not cause additional injury to that reputation.)
The nature of this defence was considered in Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 36 at 38-40 and in Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 395-401, 405. As pointed out in those cases, it is basic to the scheme of s16 that the defendant's contextual imputations must be conveyed by the matter complained of at the same time as an in addition to the imputation of which the plaintiff complains and that the defendant's contextual imputations must differ in substance from the plaintiff's imputations to which they are pleaded. There is, however, no need for the defendant's contextual imputations themselves to differ in substance one from the other, as long as their combined effect differs in substance from the plaintiff's imputation to which they are pleaded. Unless both parties' imputations are conveyed at the same time to the same ordinary reasonable reader, the jury will be unable to weigh or to measure the relative worth or value of the imputation or imputations for which each party contends, as the section requires. I do not need to repeat the discussion of those particular propositions in the cases cited.
The following issues arise for the judge in relation to a defence of contextual truth:
(1) 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.
(2) 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.
(3) Whether the nature of 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 such that its or their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's reputation that the plaintiff's imputation to which it is or they are pleaded did not further injure that reputation.
(4) Whether there is evidence upon which the jury could find that the contextual imputation or imputations is or are substantially true.
(5) Whether the contextual imputation or imputations relates or relate to a matter of public interest or whether it was or they were published under qualified privilege."
16His Honour went on to point out that a preliminary question may arise (as in this case) as to whether the contextual imputations are capable of being conveyed by the matter complained of at the same time as, and in addition to, the plaintiff's imputation. Put another way, the question is whether it is reasonably open to the tribunal of fact to find that the ordinary reasonable reader would have understood the matter complained of to convey at the same time both the plaintiff's imputation and the defendant's contextual imputation(s).
17The observations of Hunt J in Allen were cited with approval in John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 by Spigelman CJ (pars 11-13), and Hodgson JA (par 61), Ipp JA agreeing.
18The issue in Jones was whether the claimant's contextual imputation namely "The plaintiff was a dishonest broadcaster" was "another imputation" within s 16(1) where the jury had found that the publication had conveyed the plaintiff's imputation that "The plaintiff was a dishonest broadcaster in that ..." (the particular conduct was pleaded). In considering the proper construction of the words "another imputation" the Chief Justice said:
"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."
19His Honour found that the contextual imputation, although formulated at a higher level of generality, was merely an alternative to, and did not differ in substance from, the plaintiff's imputation. Accordingly, he found that it was incapable of being conveyed as "another imputation" within s 16(1).
20Hodgson JA disagreed, but not as to the requirements of the defence. He found (par 63) that the contextual imputation differed in substance from the plaintiff's imputation and hence was capable of being "another imputation" within s 16(1). He found (par 99) that the contextual imputation was not a formulation of the same imputation at a higher level of generality.
21Ipp JA (pars 111, 112) found that the meaning of the plaintiff's imputation and of the contextual imputation was, in effect, the same in that each carried a broad meaning. Also, he said (par 110):
"110 Generally speaking, the same words may be capable of bearing a broad defamatory meaning and a narrow defamatory meaning. I accept that if a plaintiff sues for defamation, relying only on the narrow meaning of the words, the broad meaning will ordinarily be "another meaning" within the meaning of the phrase in s 16(1) of the Defamation Act 1974 ."
22He agreed with the Chief Justice that the contextual imputation be struck out. It is apparent that he found that the imputations did not differ in substance, and thus the contextual imputation was incapable of meeting the statutory requirement.
23Much time was taken up at the hearing in the course of the defendants' submissions in agitating whether the approach taken by the Chief Justice was at odds with that taken by his brethren. However, in my opinion, analysis of the judgments reveals no inconsistency between their Honours with regard to the principles which govern the application of s 16(1) as explained by the Chief Justice. In short, the Chief Justice and Ipp JA held that, in the circumstances, the contextual imputation did not meet the test, and Hodgson JA held that it did.
24In any event, Jones must now be accepted as authority for the proposition that a defendant will only be able to plead a contextual imputation if it differs in substance from the imputation pleaded by the plaintiff ( John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484, par 16). Furthermore, after reviewing the authorities, including Jones , McColl JA reformulated the issues as stated by Hunt J in Allen and she said (par 212):
"212 These authorities can be summarised as follows:
(a) the defence of contextual truth under s 16 was created to fill a lacunae in the common law by enabling a defendant to justify a meaning of the matter complained of upon which the plaintiff had not relied;
(b) a contextual imputation must be another imputation from the plaintiff's imputation; the test of whether it differs in substance from the plaintiff's imputation is a necessary but not sufficient test for 'another' imputation, which requires a difference in kind ( Jones ); it must be a "truly alternative" imputation ( Hepburn );
(c) a contextual imputation may plead a different "sting" entirely from that relied upon by the plaintiff; and
(d) a plea of contextual truth admits that the matter complained of conveyed the imputations relied upon by the plaintiff, does not seek to justify those imputations (save where a contextual imputation singly, or in combination, pleads back one of the plaintiff's imputations), but seeks to establish that by reason of the substantial truth of the contextual imputation(s), the imputation complained of does not further injure the reputation of the plaintiff."
25As Simpson J pointed out in Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645 (par 50-52) although the sense of s 16 of the 1974 Act is not different from that of s 26 of the Act, there is some difference in the language. Under s 16(1) a contextual imputation is "another imputation" made by the same publication. Under s 26(a) contextual imputations are "other imputations" carried "in addition to" the plaintiff's imputations.
26In my opinion, by the incorporation of the phrase "in addition to" the effect of s 26(a) encapsulates issues (1) and (2) as stated by Hunt J in Allen (p 7) (par 15 above). The phrase removes any erstwhile confusion about what is required to establish a contextual imputation as a defence.
27In 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.
28The test is straightforward enough, and it would be unhelpful to embroider it with some idiosyncratic gloss. The difficulty sometimes lies in its application in a particular case. Ultimately, the result of the evaluation process is one of impression taking into account the defamatory quality of each party's imputations with regard to the contents of the matter complained of which conveys them. In order to consider whether the defendants' contextual imputations are capable of being conveyed by the matter complained of at the same time as and in addition to the imputations pleaded by the plaintiff it is necessary to establish "... just what is the precise act or condition which is asserted of or attributed to the plaintiff both by the plaintiff's own imputations and by the defendants' contextual imputations" ( Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, p 41E). The scope of an imputation must be taken to include all imputations which do not differ in substance, or are less injurious, or which are but shades, nuances, and gradations of meaning of substantially similar imputations. ( Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, p 771, Chakravati v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519 pp 24, 60, 139.) Where the plaintiff's imputations are more than one it will be necessary to consider all of them, separately and in combination, to determine whether a contextual imputation is carried in addition to them. The exercise requires a commonsense approach to an understanding of the publication which is expected of the ordinary reasonable reader.
29I turn now to the challenges to the contextual imputations in par 14(a) of the defence on the ground that each did not differ in substance from the plaintiff's imputations and, hence, could not be another imputation in addition to those of which the plaintiff complains.
30Imputation (i) is:
"The plaintiff as a pornographer has engaged in criminal conduct."
31Relevantly, the plaintiff's imputations in par 5 amended statement of claim are:
"(d) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop in which police found drugs that they seized;
(e) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop from which police seized more than 1000 DVDs and pornographic material;
(f) The plaintiff is a pornographer, in that he owns the adult shops Pleasure Chest and Adult Shop which sell pornographic material;
(g) The plaintiff is a criminal, in that he supplied illegal DVDs through his adult shops Pleasure Chest and Adult Shop;
(h) The plaintiff is a drug dealer."
32The defendants submitted that, in the context of the article, the assertion of criminal conduct as a pornographer refers to criminal conduct of a general kind which could reasonably be understood as saying something different from the plaintiff's imputations which, in each case, link the charge to specific incidents described in the article.
33In my opinion, the defendants' submissions should not be accepted. Plaintiffs imputations (d) and (h), with reference to drugs, and imputations (e) and (g), with reference to DVDs, are clearly capable of being understood as allegations of criminal or illegal conduct as a pornographer. These imputations are taken to include imputations not substantially different, as well as shades and gradations of similar imputations ( Morosi ). I am unpersuaded that the ordinary reasonable reader could discern from the article a distinction in substance between imputation (i) and the plaintiff's imputations, or that imputation (i) would be understood to be conveyed at the same time and in addition to the plaintiff's imputations.
34Accordingly, I propose to order imputation (i) be struck out.
35Imputation (ii) is:
"The plaintiff is a pornographer."
36Relevantly, the plaintiff's imputation is:
(f) The plaintiff is a pornographer, in that he owns the adult shops Pleasure Chest and Adult Shop which sell pornographic material;"
37A pornographer is "one who writes or sells pornography". Pornography includes "obscene literature, art, or photography, designed to excite sexual desire" ( Macquarie Dictionary , 4 th Ed, 2005).
38The defendants submitted that the broad meaning of imputation (ii) is of a different quality or kind to the plaintiff's narrow meaning. It was that, with regard to the description in the article of the plaintiff as a "porn shop king ... the largest distributor of adult pornography on the east coast" and as the owner of a "porn shop empire" the reader would gain the impression that he is a pornographer in a more general sense than that encapsulated in imputation (f). It followed, so it was put, that the reader would be left with the impression that the plaintiff is a pornographer by reason of his ownership of two adult shops, and at the same time would derive the additional impression that he is a pornographer.
39I do not accept the defendants' submission. The essential meaning of both imputations is the same, namely that the plaintiff is a pornographer. I find imputation (ii) is a formulation at a higher level of generality of imputation (f). Accordingly, I propose to order imputation (ii) be struck out.
40It is convenient to deal with imputations (iii) and (iv) together. They are:
"(iii) The plaintiff owns porn shops at which illegal goods were offered for sale;
(iv) The plaintiff owns porn shops at which illegal goods and pornographic material were seized by police during police raids on those shops."
41Relevantly, the plaintiff's imputations are:
"(a) The plaintiff owns adult shops that were raided by police and closed down 10 days ago;
(b) The plaintiff owns adult shops in which 700 bottles of Amyl Nitrate were found by police;
...
(d) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop in which police found drugs that they seized;
(e) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop from which police seized more than 1000 DVDs and pornographic material;
...
(g) The plaintiff is a criminal, in that he supplied illegal DVDs through his adult shops Pleasure Chest and Adult Shop;"
42In essence, the defendants submitted that imputation (iii) differed in substance from imputations (b), (d), and (g), and was additional to them in that imputation (iii) referred to illegal goods generally, whereas the plaintiff's imputations specified the goods offered for sale. In my opinion imputation (iii) has a similar meaning to imputations (b), (d) and (g) considered separately, or in combination. I find that it is incapable of being carried by the article at the same time and in addition to these plaintiff's imputations. Accordingly, I propose to order imputation (iii) be struck out.
43With regard to imputation (iv) the defendants submitted that it differed in substance from imputations (a), (b), (d), and (e), and was additional to them in that imputation (iv) refers generally to the goods and material whereas the plaintiff's imputations referred specifically to goods and material found and seized. I reject the submission for the reasons given in respect of imputation (iii). I propose to order imputation (iv) be struck out.
44Imputation (v) is:
"(v) The plaintiff deserved to have his porn shops shut down because those shops offered illegal goods for sale."
45Relevantly, the plaintiff's imputations are:
"(a) The plaintiff owns adult shops that were raided by police and closed down 10 days ago;
(b) The plaintiff owns adult shops in which 700 bottles of Amyl Nitrate were found by police;
...
(d) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop in which police found drugs that they seized;
(e) The plaintiff is the owner of the adult shops Pleasure Chest and Adult Shop from which police seized more than 1000 DVDs and pornographic material;
...
(g) The plaintiff is a criminal, in that he supplied illegal DVDs through his adult shops Pleasure Chest and Adult Shop;"
46It was accepted that imputation (v) was capable of being conveyed.
47I accept the defendants' submission that imputation (v) differs in substance from the plaintiff's imputation. It attributes a condition to the plaintiff of a different kind to the acts and conditions alleged in the plaintiff's imputations. This is not a case where the contextual imputation is an alternative to the plaintiff's imputation(s). In my opinion the article is capable of conveying to the ordinary reasonable reader imputation (v) at the same time and in addition to the plaintiff's imputations. Accordingly, the plaintiff's application in respect of imputation (v) fails.