David Clarke v Melbourne University Publishing Ltd t/a Melbourne University Press

District Court of NSW|2007-10-03|Before: Glass JA

CITATION: David Clarke v Melbourne University Publishing Ltd t/a Melbourne University Press [2007] NSWDC 209 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 3 October 2007 EX TEMPORE JUDGMENT DATE : 3 October 2007

DECISION: (1) Imputations (a), (d), (e), (f) and (g) will go to the jury; (2) Imputation (b) is struck out; (3) The defendant is to pay half the plaintiff's costs of this application; (4) Defence by 12 October 2007; (5) Reply if any to be served by 19 October 2007; (6) Discovery with verification by 2 November 2007; (7) Interrogatories by 18 November 2007; (8) Verified answers to interrogatories by 30 November 2007; (9) Matter stood over for further directions to 30 November 2007.

CATCHWORDS: Tort - defamation - imputations - form and capacity

Defamation Act 1974 (NSW) LEGISLATION CITED: Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005, Pt 14 r 28

Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 Ann-Marie Clarke and Anor v Melbourne University Publishing Limited t/a Melbourne University Press [2007] NSWDC 189 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Feros v West Sydney Radio Pty Ltd (Court of Appeal, 22nd June, 1982, unreported) CASES CITED: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hepburn v TCN Channel Nine Pty Limited [1983] 2 NSWLR 682 Malcolm v Nationwide News Pty Limited [2007] NSWCA 254 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669

PARTIES: Plaintiff: David Clarke Defendant: Melbourne University Publishing Ltd t/a Melbourne University Press

COUNSEL: Plaintiff: L Evans Defendant: L McCallum SC

SOLICITORS: Plaintiff: Goddard & Co Defendant: Frankel Lawyers

The plaintiff by way of statement of claim filed on 1 August 2007 brings proceedings for defamation for the publication by the defendants of a book "The Education of a Young Liberal" in or about July 2006.

I have already given judgment in another matter Ann-Marie Clarke and Anor v Melbourne University Publishing Limited t/a Melbourne University Press [2007] NSWDC 189 in relation to other proceedings commenced over the same extract from the book, by the plaintiff's daughters.

The matter complained of having been published after 1 January 2006, the Defamation Act 2005 (NSW) applies. This means that I must have regard to the fact that the imputations are particulars of cause of action and no longer the cause of action and the appropriate test to apply is the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. More recently in Malcolm v Nationwide News Pty Limited [2007] NSWCA 254 the Court of Appeal noted a statement by Glass JA in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 674 that the question of whether an imputation was conveyed should go to the jury unless it was blindingly obvious that no other conclusion was reasonably open.

The plaintiff pleads the following imputations; (a) that the plaintiff tried to pimp off his daughters; (b) that the plaintiff solicits for prostitutes; [there is no imputation (c)] (d) that the plaintiff is a Nazi; (e) that the plaintiff's political views were similar to Nazism; (f) that the plaintiff is a person of such low morals he allowed his daughters to act as prostitutes for his own advantage; (g) that the plaintiff permits his daughters to work as prostitutes in order to assist his political career.

I do not need to set out the text of the matter complained of; it is a schedule to my judgment in the action brought in Ann-Marie Clarke & Anor v Melbourne University Publishing t/a Melbourne University Press. In my judgment in those proceedings I held that the following imputations were to go to the jury in respect of each of the plaintiffs: (a) that she is a prostitute, (b) that she is of such low moral character that her father solicits for her. Those are the relevant imputations to have regard to in relation to this matter because I have indicated that I propose to rule in this matter in relation to imputations (f) and (g) in accordance with my earlier judgment.

The defendant has indicated that it wishes to formally maintain the objections to these imputations but accepts that I propose to rule consistently with my judgment and as I understand this concession it is that I need not give further reasons in this judgment for that ruling in that the defendant is content to regard the reasons I gave in my judgment in [2007] NSWDC 189.

The imputations to which the defendant takes objection are imputations (a), (b), (f) and (g). Objections to imputations (d) and (e) were withdrawn when the matter was last before me, and as I have indicated, the defendant has accepted I will rule in relation to imputations (f) and (g) conformly with my earlier judgment. This means that the two imputations which are the subject of dispute in this applications are imputations (a) and (b).

Imputation (a): that the plaintiff tried to pimp off his daughters

This is an objection on the basis of form. The defendant accepts that notwithstanding the different status of imputations under the Defamation Act 2005, where they are particulars rather than the cause of action, a pleading that is ambiguous has a tendency to cause prejudice or embarrassment and is liable to be struck out pursuant to Pt 14 r 28 of the Uniform Civil Procedure Rules 2005. The defendant draws my attention to Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 where the word "corrupt" was held to be insufficiently precise in an imputation.

The word "corrupt" has always occupied an exceptional position in cases concerning ambiguous meaning. The facts in Drummoyne Municipal Council, as counsel for the plaintiff has reminded me, were that in the publication in question there was no specific actual conduct to be pointed to. In addition, corrupt conduct can cover an enormous range of activities and perhaps this may explain why it has caused so many pleading problems.

The complaint that is often made, and as I understand it is made by the defendant in these proceedings, is that the word "pimp" has more than one meaning and therefore the defendant does not know what meaning it is to justify. This complaint was given very careful consideration by Hutley JA in Hepburn v TCN Channel Nine Pty Limited [1983] 2 NSWLR 682 at 687D to 688C and I set out the text of Hutley JA's judgment in full. "The variety of conditions under which the word may have different connotations, itself shows that the attempt to invest it with a necessary meaning is futile. Even accepting what is said about the knowledge of the community, it is for the jury to decide what is in fact within the general knowledge of the community in a case like this, and to apply that knowledge to the appellant who does not necessarily appear to be a doctor in the telecast.

Hunt J's search for a necessary "meaning of 'abortionist' has its justification in the belief that because a word does not necessarily have a particular meaning, it does not identify the precise act or condition asserted of or attributed to the appellant or with which she is charged" and, therefore, does not properly set out the imputation sued on. It does not properly set out the imputation, it is said, because the defendant does not know what it has to justify. Samuels JA, with whom Moffitt P and Reynolds JA agreed, said in Feros v West Sydney Radio Pty Ltd (Court of Appeal, 22nd June, 1982, unreported):

"...it was necessary here (my emphasis) for the plaintiff to specify, that is to state categorically, explicitly or particularly, the defamatory meaning or meanings which he alleged the matter in its natural and ordinary meaning would convey to an ordinary reasonable reader."

As his Honour was carefully specifying, his remarks were not stating a universal rule but even if he were that does not mean that she has to state each imputation so that it does not cover defamations of different seriousness. Where she alleges that she has been characterized in a way calculated to damage her reputation in any meaning it can bear, she is entitled to have the imputation submitted to a jury in general terms, and the defendant has to justify it accordingly. For example, a person who claims he has been defamed by being called a communist is not required to refine the imputation down to one of the varieties of communists now current, though their official commitments to subversion now vary widely.

In Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, at 771, the court said:

"Upon the proper construction of the rules, an imputation specified in a statement of claim must be taken to include all imputations which do not differ in substance. Accordingly, it is not open to the appellant to claim that the imputations as to promiscuity should have been taken from the jury, because the publications bore imputations of sexual immorality of a slightly lesser degree." This reasoning is equally applicable to imputations of slightly more serious import.

Though a defendant is entitled to know the case he has to meet, it is strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words it has used, so that it is embarrassed in justifying it. This must mean it does not know what it is alleged an ordinary reasonable hearer would make of it."

Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation pointed out that the imputation "the plaintiff was an abortionist" was wrongly struck out in Hepburn "because it forced the plaintiff into pleading with greater precision than the actual publication". That is the problem that has occurred here.

The fact that the word "pimp" has gradations of meetings or even different meanings does not mean that it is necessary to state each imputation so that it covers defamations of a different nature or different seriousness. This is what Hutley JA meant at 687G when his Honour explained that a plaintiff is entitled to have an imputation submitted to a jury in general terms and the defendant has to justify it accordingly. Just as a person who is called a communist is not required to refine the imputation down to which of the varieties of communism is involved (noting that the various different kinds of communism have differing commitments to subversion), similarly, it is not necessary in my view to further specify the word "pimp". It was not necessary in my view in proceedings brought under the Defamation Act 1974 and it is not necessary now that imputations are particulars as opposed to causes of action.This is because while a word is capable of having different meanings, what will always define the meaning will not be so much the dictionary as the context in which the word is used. The context in which the word "pimp" is used is in the sentence "and did you get a load of Clarke trying to pimp off his daughters" (which Mr Kutasi does not merely say but "enthused", and then follows with the football hooligan chant "Oi oi oi"). This is a good example of the imputation not needing to be more specific than the matter complained of in the same way that Gleeson CJ explained that a publication "X is disgusting" need not give rise to an imputation more specific than that the plaintiff is disgusting (Drummoyne Municipal Council at 137).

Accordingly it is my view that there is no ambiguity requiring the pleading with precision of what the "pimp" means.

Imputation (b): that the plaintiff solicits for prostitutes

This imputation could only arise from the reference to the word "pimp" in the statement by Mr Kutasi, this being Mr Kutasi's inference as to what was on the table for the deal for Mr Kutasi and Mr Clarke to join the Right Wing of the Liberal party. While a jury might find that the matter complained of imputed that as part of the deal the plaintiff was prepared to "pimp off" his daughters there is nothing in the text to indicate that the plaintiff is a person who solicits for prostitutes in a more general sense. What the matter complained of refers to is the plaintiff talking "warmly" about his daughters in circumstances where it becomes apparent from the context that this apparent explanation, like many of the other explanations in the book, turns out to have some additional meanings which mean that it should not be taken at face value.

However there is nothing in any part of the text to support a general imputation that the plaintiff solicits for prostitutes. The extent of his wrongdoing is that he has two daughters that he is prepared to throw into the deal, not that he is prepared to offer to obtain prostitutes for the author and Mr Kutasi. This is in my view one of those rare cases where it is blindingly obvious that no other conclusion is reasonably open, to use the words of Glass JA at 674 in Sergi v Australian Broadcasting Commission as referred to in Malcolm v Nationwide News Pty Limited at [20].

The ordinary reasonable reader, reading between the lines, might be capable of coming to the conclusion that the plaintiff was prepared to "pimp off" his own daughters but not that he was a person who solicited for prostitutes in the general sense of the word. It was submitted that this imputation refers to the plaintiff soliciting for his own daughters but this is not what the imputation says. The imputation says that he solicits for prostitutes and that is what Hunt CJ at CL in Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165 called a "strained or forced or utterly unreasonable interpretation". No ordinary reasonable reader reading the matter complained of, in my view, would come away with the impression that the plaintiff was someone who solicits for prostitutes. Accordingly I strike out this imputation.

I am grateful to the defendant for the acknowledgement that it is not necessary for me to repeat the reasons for holding that these imputations should to the jury.

Orders (1) Imputations (a), (d), (e), (f) and (g) will go to the jury. (2) Imputation (b) is struck out. (3) The defendant is to pay half the plaintiff's costs of this application. (4) Defence by 12 October 2007. (5) Reply if any to be served by 19 October 2007. (6) Discovery with verification by 2 November 2007. (7) Interrogatories by 18 November 2007. (8) Verified answers to interrogatories by 30 November 2007. (9) Matter stood over for further directions to 30 November 2007.

14/11/2007 - Typographical amendment - Paragraph(s) 7

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Defamation Act 1974(NSW)

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