Imputation (a) in the amended statement of claim in the Michael Jnr proceedings: whether it is capable of arising
14Following publication of my reasons in Corby v Allen v Unwin Pty Limited [2013] NSWSC 308, Michael Jnr filed an amended statement of claim on 24 April 2013 in which he alleged that the following imputation was carried by the matter complained of:
Michael Corby was a drug dealer involved in the marijuana trade on the Gold Coast.
15The defendants moved to strike out the imputation on the following three grounds:
(1)it was outside the leave to replead granted on the last occasion;
(2)it involved an impermissible challenge to my reasons in Corby v Allen v Unwin Pty Limited [2013] NSWSC 308; and
(3)in any event, it was incapable of arising.
16The new imputation is different in substance from those that I struck out on the last occasion, although it involves the same subject matter: the involvement of Michael Jnr in the drug trade. In all the circumstances I propose to determine as a matter of substance whether the imputation is capable of arising since, although I determined related matters, I have not earlier determined this question.
17The principal basis on which Mr Smark contended that the imputation was capable of arising (which involved an acceptance of my earlier reasons which found that earlier permutations were not) was that the defendants had repeated the accusations made to Michael Jnr's face to that effect. Mr Smark placed particular reliance on the following passage on the last page of Chapter 33: Thirty Pieces of Silver, a chapter dedicated to the defamation proceedings brought by Mercedes and Rosleigh against Channel 7 which were resolved "for an undisclosed sum":
"The Australian media was not concerned about the litigious Corbys and became reluctant to undertake any further investigations into them. As Michael Jnr would often say to people who alleged that he was involved in the marijuana trade on the Gold Coast, 'Prove it, go on, prove it!'."
18Mr Smark relied on the following statement of principle from Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49-50 per Manning, Hope and Reynolds JJA:
"There can be little doubt that the nature and quality of the defamatory publication may vary, dependent upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted. The purpose of the republication will also have a significant bearing. There can be no such general rule as was submitted to us that the repeater or reporter of the defamatory statement of another is not liable as for defamation unless he adopts it or re-affirms it. Principle and authority both lead in a different direction. Lord Devlin said in Lewis v. Daily Telegraph Ltd.: "For the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it." (footnotes omitted)
19He submitted that the defendants, by repeating the accusations made to Michael Jnr by people on the Gold Coast, were themselves making a defamatory statement, or, for present purposes, one that was capable of being defamatory.
20Mr Dawson accepted the applicable principle but contended that when the passage was viewed in the context of the matter complained of as a whole, it ceased to be capable of being defamatory. He pointed to the third principle (c) identified in the summary of the relevant authorities in McColl JA's judgment (Sheller JA and McClellan A-JA agreeing) in John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60; 64 NSWLR 485 at [119]:
"This review of the authorities demonstrates that:
(a) Republication of defamatory hearsay constitutes adoption of the defamatory statement - using "adoption" in the primary sense;
(b) As a general rule the republisher is liable in defamation as if the author of the defamatory hearsay;
(c) To determine what, if any, defamatory imputations are conveyed by the publication in which the defamatory hearsay appears, the matter complained of must be viewed as a whole. Relevant indicia will include whether the defamatory hearsay is approved, reaffirmed and/or endorsed (adopted in the secondary sense), repudiated or discounted and the purpose of the republication."
21I consider the context of the passage set out above to be determinative. Taken out of context, it is certainly arguable the imputation would be capable of arising from the particular passage. However, it comes at the end of a chapter in which the allegations made by Channel 7 against Mercedes to the effect that she was connected with drugs were proved to be baseless apart from some admitted youthful experimentation. The proceedings were resolved before their conclusion by payment to Mercedes and Rosleigh of "an undisclosed sum, speculated to be millions".
22The Channel 7 broadcast was not about Michael Jnr. Nor was he involved in the proceedings brought by Mercedes and Rosleigh against Channel 7. The only substantive reference to him in this chapter is in the passage set out above. The matter complained of refers to the accusations made against him by "people" on the Gold Coast in the context of statements about Mercedes which were shown to be without foundation and statements about Rosleigh which had not yet been the subject of evidence when the matter was settled but which the ordinary reasonable reader would infer, from the substantial settlement sums that were paid to Mercedes and Rosleigh, were also without foundation.
23If the repetition of allegations of drug involvement against him is the bane, Michael Jnr has the benefit of the antidote which has been administered by the victory that Mercedes and Rosleigh enjoyed in the Channel 7 proceedings.
24I regard the imputation under challenge as being in a wholly different category from the imputations considered in Morosi v Broadcasting Station 2 GB Pty Limited (to be found following the report of Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 418), on which Mr Smark relied.
25The ordinary reasonable reader would not, in my view, give any credence to the accusations reported to have been made to Michael Jnr in these circumstances, and would regard them as being at least as worthless as those made by Channel 7 against his sister Mercedes and his mother. The passage identified as forming the basis of the imputation is not capable of conveying, in the context of the matter complained of as a whole, and particularly in the context of the chapter at the conclusion of which the passage appears, imputation (a).
26Mr Dawson also made a formal challenge to this imputation. Had I consider it to be capable of arising, I would have allowed it to go to the jury in its present form. Any imprecision arises from the matter complained of.