First contextual imputation
18As to the first contextual imputation, it was submitted that the imputation is bad in form since the notion of "crimes involving illegal drugs" is imprecise and so apt to cause confusion. Precision is a requirement of the plaintiff's imputations: see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137-138 per Gleeson CJ; at 155F per Priestley JA. It is equally a requirement of any contextual imputation relied upon by a defendant: Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [32] to [34] per Hodgson JA; McColl JA and McClellan AJA agreeing at [42] and [43].
19In my view, the defendants' first contextual imputation is impermissibly imprecise. The notion of "crimes involving illegal drugs" is extremely broad. The matter complained of is quite specific - it accuses the Corby family of being involved in illegal drugs specifically by smuggling drugs into Indonesia. There is a large variety of other kinds of crimes involving illegal drugs including self-administration, possession, supply, manufacture, importing, sexual assaults involving the administration of a drug for the purpose of rendering the victim incapable of resisting and so on. In my view, the imputation is liable to be struck out on that ground alone.
20Secondly, Mr Smark submitted that the imputation that Mr Kisina committed crimes involving illegal drugs is simply not capable of being conveyed in a generalised way. He submitted that the allegation made by the television programme is that, because of his membership of the Corby family, Mr Kisina was involved in the family operation of smuggling drugs into Indonesia and that no generalised allegation of involvement in illegal drugs is capable of arising.
21Mr Blackburn submitted that the matter complained of is capable of being understood in two alternative ways - either that the Corby family run drugs to Indonesia or, quite differently, that they run a drug operation an instance of which is running drugs to Indonesia. He submitted accordingly that the general imputation is capable of arising and that the defendants are not able to plead it with any greater specificity owing to the generality of the words of the matter complained of (relying on the well-known passage in the judgment of Gleeson CJ in Drummoyne). I disagree. In my view, the matter complained of does provide greater specificity than is captured in the notion of "crimes involving illegal drugs".
22The third objection to the first contextual imputation is that it is not capable of meeting the requirements of s 26 of the Defamation Act. That section provides:
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.
23The content of the requirement of that section that a contextual imputation be an "other" imputation arising "in addition to" the plaintiff's imputations has been considered in a number of authorities.
24As noted on behalf of the plaintiffs, the principles were discussed by Nicholas J in Ange v Fairfax Media Publications Pty Limited [2011] NSWSC 204 at [16] to [27] and have been applied by me on a number of occasions: see Kelly v Harbour Radio [2013] NSWSC 9 at [2] to [3]; Liu v Fairfax Media Publications [2013] NSWSC 7 at [17] to [22] and in Tauifaga v TCN Channel 9 Pty Limited [2013] NSWSC 8 at [6] to [7] where I adopted the following summary provided by counsel:
(a) a contextual imputation must differ in substance from the plaintiff's imputations (Ange at [25]);
(b) the question is, would the ordinary reasonable reader or viewer have understood the matter complained of to convey at the same time both the plaintiff's imputations and the defendant's contextual imputation (Ange at [16]);
(c) a contextual imputation will not be permitted if it is merely an alternative formulation to the plaintiff's imputation. The requirement that the imputations differ in substance is a necessary but not sufficient requirement - there must be a difference in kind (Ange at [27]);
(d) if the defamatory sting of the contextual imputation is the same as the defamatory sting of the plaintiff's imputation, even if the contextual imputation is broader it will still be impermissible (Ange at [27]);
(e) where there is more than one imputation relied upon by the plaintiff, it is necessary to consider all of the imputations separately and in combination to determine whether a contextual imputation is carried in addition to them (Ange at [28]).
25Mr Blackburn characterised the requirement that a contextual imputation must be different in kind as a "phantom" requirement. However, that was a formal submission. He accepted that I am bound by authority on this question.
26Mr Smark also drew my attention to a convenient collection of the relevant principles in the decision of Le Miere J in Ives v The State of Western Australia [No 8] [2013] WASC. Mr Smark submitted that the principles collected in that judgment are not discrete but are different reflections upon a proposition perhaps best captured by Simpson J in Ange at [61] (cited with approval in Ives at [85]) where her Honour said:
"on the authority of Jones, the defendant cannot expand the area of misconduct by pleading a contextual imputation related to the same class of misconduct but framed in general terms".
27Mr Smark submitted that that is exactly what the defendants seek to do with their first contextual imputation in the present case. In my view, that submission is plainly right.
28The defendant's second contextual imputation is that the plaintiff is a person who because of his involvement with illegal drugs warranted being watched by the police. The first objection was a form objection. Mr Smark submitted that the imputation is bad in form for two reasons. First, he submitted that it entails the same imprecision as the first contextual imputation in its reference to Mr Kisina's "involvement with illegal drugs". In my view, for the reasons set out above in respect of the first contextual imputation, there is force in that complaint and the imputation is liable to be struck out on that basis.
29Secondly, Mr Smark submitted that the imputation does not identify any act or condition the attribution of which defames the plaintiff. I do not think that is a discrete cause for complaint. Whatever the relevant "involvement with illegal drugs" may be, it is characterised as warranting the attention of police, which conveys the (defamatory) implication of unlawfulness. The real vice of the imputation is its imprecision.
30The second objection is that the imputation fails to identify the act or condition that would make ordinary people think less of the plaintiff. That is perhaps a different way of articulating the first objection (as to form). Mr Smark asked, rhetorically, what does the imputation actually say Mr Kisina has done, or what condition does it attribute to him? No precise answer can be given to that question, in my view.
31Mr Smark also submitted that the imputation is incapable of being conveyed of the matter complained of. With a degree of ingenuity, he submitted that the matter complained of says only that police were in fact watching the family, not that they ought to be. I do not accept that submission. In my view, the inference is at least capable of arising that, if police had the family under surveillance, there was some warrant (not in the formal legal sense but some justification) for embarking on such surveillance.
32The third objection is that, as with the first contextual imputation, the second contextual imputation is incapable of meeting the requirement of s 26 of the Defamation Act that it be a meaning conveyed "in addition to" the plaintiff's imputations. In my view, that is plainly right. As already noted, the imputations relied upon by the plaintiff include an imputation "that the plaintiff was reasonably suspected by Federal Police of committing crimes". I accept, as submitted by Mr Smark, that the second imputation cannot be derived at the same time as the plaintiff's imputations including imputation (d).
33This case, arising from short remarks made in relatively clear terms, provides a good illustration of the potential for a simple claim to be unduly complicated by the pleadings. The matter complained of is plainly capable of conveying the meaning that the Corby family was conducting an illegal drug operation running drugs to Indonesia. The case can be defended by a denial that that meaning is in fact conveyed or by a defence that confesses and avoids it. That is a case which, in my view, can and should be brought to trial promptly without the need for further pleading disputes.