The imputations of being part of the drug syndicate run by Mick or dishonest denial of knowledge of drug syndicate ((b) and (c) of Mercedes' imputations; (d), (e) and (f) of Rosleigh's imputations and (a), (b) and (c) of Michael Jnr's imputations)
23Mr Smark contended the ordinary reasonable reader would draw from the matter complained of imputations that each of the plaintiffs was involved in, or aware of, Mick's drug trafficking by reference to the following line of reasoning:
(1)The family was a close family.
(2)Each of the plaintiffs socialised with Mick and would visit him at his house at Tugun (near the Gold Coast) and also his farm at Inveragh.
(3)For some periods Schapelle, Mercedes and Mick Jnr lived with their father in his house at Tugun, which was not far from the carpark at Jupiter's Casino, the handover point for the drugs which had come from South Australia.
(4)Schapelle knew that her father had been trafficking in drugs since late 1999 or 2000.
(5)There is no reason to suppose that Schapelle would know of her father's criminal activities but that her mother, Rosleigh, her sister, Mercedes and her brother, Michael Jnr, would be unaware of such activities.
24Mr Dawson submitted that the children were closer to Rosleigh than they were to Mick and that although they visited their father and stayed with him from time to time, his drug operations were deliberately conducted away from his residences. Mr Dawson also emphasised that Mick and Rosleigh had separated in 1979, some 20 years before, Mick, according to the Author, established the drug syndicate.
25Mr Smark submitted that there is a significant amount of innuendo, insinuation and suspicion created by the matter complained of which had the effect that the ordinary reasonable reader would be left with the impression that the plaintiffs either participated in the syndicate or must have known what was going on.
26Mr Smark referred in particular to the chapter dealing with the defamation suit brought by Mercedes and Rosleigh against Channel 7. He submitted that the tenor of that chapter was that Mercedes was in fact involved with drugs, beyond that which could be proved, namely that she had smoked marijuana in her youth, but that Channel 7 had not done sufficient legwork to prove the truth of the allegations made against her which resulted in Channel 7 having to settle the proceedings for a substantial, but undisclosed, sum. He submitted that the ordinary reasonable reader would have gained the impression that the imputations made by Channel 7, though they could not be proved, were nonetheless true. He emphasised the Author's juxtaposition of truth, on the one hand, and proof on the other.
27By contrast, Mr Dawson submitted that the Author disparaged Channel 7 for broadcasting something which had little or no basis and concluded that Mercedes was cleared of any involvement whatsoever. That Channel 7 settled on the basis that they would pay both Mercedes and Rosleigh a substantial sum meant, according to Mr Dawson, that there was no basis for the defamatory imputations that arose from the Channel 7 broadcast. The ordinary reasonable reader would get the impression that all that Channel 7 had was "tittle-tattle" from Jodi Power, an old friend of Mercedes, who had been completely discredited in the witness box and that the case was, as far as Channel 7 was concerned, an unmitigated disaster. Although the Author refers to Kim Moore, who knew Tony Lewis, one of Mick's associates, her evidence implicated Mick, but did not implicate the plaintiffs.
28I do not consider that the ordinary reasonable reader could have gained the impression for which Mr Smark contends. Although latitude is given for loose thinking, particularly where, as in the course of the matter complained of, sensational language is used, I do not consider the imputations are capable of being conveyed. The Author is careful to distance himself from the allegations made by Channel 7 and from its almost baseless broadcast. The ordinary reasonable reader is not unduly suspicious and does not, unless invited, indulge in conspiracy theories.
29Mr Dawson submitted that were I to find that the bane of the imputations was capable of being conveyed, the imputations were swamped by the antidote of the corrective parts of the matter complained of. He contended that this is one of the rare cases referred to in Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 where it would not be open to ordinary reasonable readers, reading the matter complained of as a whole, to come to the conclusion that the plaintiffs were implicated in the drug syndicate or had knowledge of it when the book itself emphasised that the plaintiffs had been accused without cause.
30I agree that the whole tenor of the book, particularly in the context of the chapter devoted to the defamation proceedings against Channel 7, is such that no fair-minded reader would infer that Mercedes had any connection with drugs beyond her admitted youthful experimentation. Although Channel 7's defamation of Mercedes was repeated in the book, what followed so plainly swamped any potential defamatory meaning, in my view, as to require striking out those imputations on the grounds of capacity.
31Mr Dawson accepted that there was a sentence in the book which supported Schapelle's knowledge, in the following passage at page 358 of the matter complained of:
"The truth is, she [Schapelle] always knew her dad was a drug dealer. She knew about the trips to Bali, she knew about the system, the bribes, she knew the lot."
32Mr Dawson said that although Mr McCauley is quoted as telling the author of Schapelle's long-standing knowledge, there was otherwise no indication in the matter complained of that Schapelle was other than a first-time drug courier in October 2004 or that she was in any way accustomed or inured to the risks of such an activity. Mr Dawson instanced the descriptions of her appalling behaviour on the plane and her excessive consumption of alcohol which was consistent with nervousness and inexperience.
33Mr Smark submitted that the ordinary reasonable reader would infer that because Schapelle knew of her father's drug syndicate, each of the plaintiffs also knew of his activities, because they were a close family. Although there is neither investigation nor explanation in the book of how it was that Mr McCauley knew that Schapelle had the knowledge he attributed to her, I do not consider that an ordinary reasonable reader would draw the inference alleged. Indeed, Mr McCauley's specific reference to Schapelle's knowledge as distinct from the collective knowledge of the "Corbys" would, in my view, lead the ordinary reasonable reader to gain the impression that, with the exception of Schapelle, none of the Corbys knew of Mick's criminal activities.
34I do not consider any of these imputations to be capable of arising.
35Mr Dawson also made a formal objection to the imputations. He submitted that the words "part of" in connection with a drug syndicate were bad in form and amounted to "weasel words" which had a variety of meanings such that their use was ambiguous or equivocal and therefore lacked the requisite specificity: Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 at [23] per Nicholas J. I reject this submission. Had I considered the imputations capable of arising I would not have struck them out on the grounds of form. As was said by Callinan and Heydon JJ at [194] in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; 230 CLR 291:
"Published matter may well convey a duality of meanings and impressions, not necessarily exclusive of one another, and sometimes with one leading to another, successive, inevitable or almost inevitable one."