Domican v Pan Macmillan Australia Pty Limited

Federal Court of Australia|2019-08-28|Before: Hunt J, Wigney J

s [1925] AC 47 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148

Date of hearing: 26 March and 14 May 2019

National Practice Area: Other Federal Jurisdiction

Solicitor for the Respondents: Banki Haddock Fiora

BETWEEN: THOMAS CHRISTOPHER DOMICAN Applicant

AND: PAN MACMILLAN AUSTRALIA PTY LIMITED ACN 001 184 014 First Respondent

JUDGE: WIGNEY J DATE OF ORDER: 28 AUGUST 2019

Paragraphs 7, 8 and 9 of the first respondent's defence be struck out.
Paragraphs 7, 8, 9, 10 and annexure A of the second respondent's defence be struck out.
The respondents be granted leave to file amended defences on or before 27 September 2019.
The respondents pay the applicant's costs of the amended interlocutory application filed 14 March 2019. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

WIGNEY J: 1 In 2017, Pan Macmillan Australia Pty Limited published a book authored by Mr John Ibrahim entitled "Last King of the X". The book was said to lay bare the "incredible life" of Mr Ibrahim, who was said to be "Australia's most notorious underworld figure". About halfway through the book, there is a relatively fleeting reference to Mr Thomas Domican. That reference was sufficient to cause Mr Domican to sue both Pan Macmillan and Mr Ibrahim for defamation. Pan Macmillan and Mr Ibrahim have filed defences to Mr Domican's claim, however Mr Domican has moved to strike out parts of those defences. This judgment resolves that interlocutory dispute.

Mr Domican's claim 2 In Chapter 31 of his book, Mr Ibrahim writes about arriving back in Sydney in the late 1990s after an overseas trip and deciding to do something that had been in the back of his mind for some time. That decision was to "get rid of all the old guard" in Kings Cross, "starting with Louis Bayeh". Acting on that decision, Mr Ibrahim says that he arranged a meeting with all the strip club and nightclub owners and told them that he was "basically taking over looking after the Cross". One night soon after, he received a call from Mr Roger Rogerson, who was said to still be a "major presence and negotiator in the criminal world". It is in that context that the following passage appears in the book (at pp 209-210): I go to meet him at our usual spot, which is at the bottom of Victoria Street at the stairs that lead you to the navy dockyards in Woolloomooloo. He and I are used to talking straight to each other, so he comes right out and tells me a few people are not happy at me removing them from the Cross, taking over the protection of all the strip clubs and the remaining gambling clubs, and that there are people looking around to get rid of me. Tom Domican was approached but laughed it off. Tom had been involved in the first gang wars in Sydney twenty years earlier when him, Neddy Smith, Chris Flannery (Mr Rent-A-Kill himself) were all warring over Sydney turf back then for the lucrative illegal gambling machines and the heroin market. He knows Sam and me and didn't want to be involved. But with my brother back in jail, Roger is giving me the heads-up. He asks me what I am going to do. 3 Mr Domican claims that the book as a whole, but in particular that passage, carried the following defamatory imputations or imputations not different in substance: (a) [Mr Domican] was willing to be hired to kill people other than the Ibrahims. (b) [Mr Domican] is a violent criminal who took part in gang wars. (c) [Mr Domican] is a criminal who conducted illegal gambling. (d) In the alternative to (c) [Mr Domican] sought to conduct illegal gambling. (e) [Mr Domican] is a criminal who engaged in the supply of heroin. (f) In the alternative to (e) [Mr Domican] sought to be engaged in the supply of heroin. 4 It should be noted that, in the course of the hearing of the interlocutory application, counsel for Mr Domican indicated that while the second, third and fifth imputations used the word "is", and thus conveyed a present condition or state of affairs, those imputations should be approached for the purposes of this application as if the word "was" replaced the word "is". The alleged imputations, therefore, are that Mr Domican "was", at some time in the past, a violent criminal or criminal. While the pleading was not formally amended, the application was approached on that basis. Counsel for Pan Macmillan and Mr Ibrahim did not object to that course. 5 Mr Domican claims that the publication of the book and the alleged imputations had injured his credit and reputation, and that he had been "brought into public scandal, odium and contempt". He claims aggravated damages on the basis that Pan Macmillan and Mr Ibrahim did not inform him of the imputations they intended to publish, failed to ensure that the content of the book was accurate insofar as it concerned him, and published the book without checking whether any of the allegations in it about him were accurate.

Pan MAcMillan and Mr Ibrahim's defence 6 The defences filed by Pan Macmillan and Mr Ibrahim are in relevantly similar, though not identical, terms. 7 Both Pan Macmillan and Mr Ibrahim deny that the book carried the imputations alleged by Mr Domican and deny that the imputations, if carried, were in fact defamatory of Mr Domican. 8 More significantly, at least for the purposes of this application, both Pan Macmillan and Mr Ibrahim plead what they refer to as a "common law truth" defence and, in the alternative, a defence of contextual truth pursuant to s 26 of the Defamation Act 2005 (NSW).

Common law truth 9 Pan Macmillan and Mr Ibrahim did not plead any justification defence pursuant to s 25 of the Defamation Act. Rather, they relied on the defence of justification or truth at common law. It should be noted, in this context, that the effect of s 24 of the Defamation Act is to preserve the availability of defences that may be available to a defendant other than under the Defamation Act, including defences available under the "general law". 10 The essence of Pan Macmillan and Mr Ibrahim's common law truth defence is that the book carried alternative meanings or imputations that were "not substantially different from, nor more injurious than" all but one of the imputations alleged by Mr Domican and that those alternative imputations were "true in substance and in fact". The alleged imputation that is not the subject of this defence is the first imputation pleaded by Mr Domican; that he "was willing to be hired to kill people other than the Ibrahims". 11 In relation to the second of the imputations that Mr Domican alleged were conveyed by the book, that he "is [was] a violent criminal who took part in gang wars", both Pan Macmillan and Mr Ibrahim claim that the book carried the alternative imputation that Mr Domican "was a violent criminal". In relation to the remaining imputations alleged by Mr Domican, both Pan Macmillan and Mr Ibrahim claim that the book carried the alternative imputation that Mr Domican "was a criminal".

Particulars of truth 12 Pan Macmillan and Mr Ibrahim both provided detailed and lengthy particulars of the facts which they claim, if proved at trial, will establish the substantial truth of the alternative imputations. The particulars of truth in Pan Macmillan's defence, as originally filed, differed in certain respects from the particulars of truth in Mr Ibrahim's defence. At the hearing of the interlocutory application, however, counsel for Pan Macmillan and Mr Ibrahim appended to his written "speaking notes" a document which contained "amended particulars" of truth relied on by both Pan Macmillan and Mr Ibrahim. While the pleadings have not been amended to include those amended particulars, the interlocutory application was approached on the basis that the amended particulars provided at the hearing were the relevant particulars. 13 A copy of the amended particulars of truth relied on by both Pan Macmillan and Mr Ibrahim is reproduced in Appendix A to these reasons. Following is a brief summary of the four critical or key allegations which are referred to in the particulars. 14 First, both Pan Macmillan and Mr Ibrahim allege that Mr Domican was involved in "branch stacking" for the New South Wales branch of the Australian Labor Party in the late 1970s. Mr Domican was charged with an unspecified offence in relation to those activities, however, he was later acquitted of those charges in 1982. Both Pan Macmillan and Mr Ibrahim allege that the acquittal was the result of the fact that Mr Domican had met with prosecution witnesses prior to the hearing and that the witnesses subsequently did not ultimately give evidence that implicated him. They claim, among other things, that it may be inferred from that circumstance that Mr Domican had "engaged in acts of intimidation and thuggery" and had "made threats of violence to those witnesses in order to procure the giving of evidence by them that would assist [Mr Domican] in his defence". The evidence upon which Pan Macmillan and Mr Ibrahim will rely on in supporting that inference is the footage of an interview with Mr Domican which was broadcast by the British Broadcasting Corporation in 1984. Pan Macmillan and Mr Ibrahim tendered and played a recording of that video at the interlocutory hearing. 15 Second, both Pan Macmillan and Mr Ibrahim claim that Mr Domican was convicted of the offences of possession of an unlicensed pistol and goods in custody in June 1988. He was sentenced to "two months hard labour" in respect of that offence. 16 Third, Pan Macmillan and Mr Ibrahim claim, in substance, that Mr Domican had an association with a gentleman by the name of Mr Billy Bayeh. The particulars allege that from "around 1993", Mr Bayeh operated "a significant heroin and cocaine business" from two premises in Kings Cross, the Penthouse Snooker Room and the Cosmopolitan Café. It is also said that, at that time, another man, Mr Danny Karam, was attempting to compete with Mr Bayeh in relation to the sale of heroin and cocaine in Kings Cross. That is said to have "created significant tension" between Mr Bayeh, Mr Karam and their respective associates. 17 In that context, the particulars allege that from about late 1993, Mr Domican regularly "accompanied Mr Bayeh when [he] conducted his business in the Kings Cross area" and "regularly stood outside" the Penthouse Snooker Room and the Cosmopolitan Café where Mr Bayeh "conducted his heroin and cocaine business". On one of those occasions, Mr Domican carried a gun. It is also alleged that Mr Domican was paid between $2,000 and $5,000 per week for his services by Mr Bayeh "at the same time as individuals involved in Mr Bayeh's heroin and cocaine business were receiving payments". On one Saturday night in 1993, it is said that Mr Domican was with Mr Bayeh and certain associates and, when the conversation turned to Mr Bayeh's conflict with Mr Karam, Mr Domican opened his coat to display a gun and said: "Don't worry about Danny, leave him to me, I'll talk to him. Don't tell anyone I've got that on me". The particularised facts and circumstances are alleged to support an inference that Mr Domican "provided protection for Mr Bayeh in connection with Mr Bayeh's illegal drug activities" and "engaged in violence, or, alternatively, was prepared to engage in violence to protect his employer in the conduct of the latter's illegal drug activities". 18 Fourth, Pan Macmillan and Mr Ibrahim allege that, in November 1999, Mr Domican "threatened to break the neck of a police officer from the National Crime Authority" and that, in June 2002, he pleaded guilty and was convicted of a charge arising from that incident.

Contextual truth 19 The essence of Pan Macmillan and Mr Ibrahim's contextual truth defence, which is pleaded in the alternative to the common law truth defence, is that the book conveyed two "contextual imputations" in addition to the imputations alleged by Mr Domican and that the defamatory imputations alleged by Mr Domican did not further harm his reputation because of the substantial truth of the two alleged contextual imputations. The two alleged contextual imputations are: first, that Mr Domican "was a violent criminal"; and second, that Mr Domican "was a participant in [or participated in] the criminal underworld in New South Wales". 20 It would appear that Pan Macmillan and Mr Ibrahim rely on the same particulars to prove the truth of both their common law truth defence and their defence of contextual truth.

Mr Domican's strike out application 21 Mr Domican applied to strike out both Pan Macmillan and Mr Ibrahim's common law truth defence (paragraphs 7 and 8 of their filed defences) and the contextual truth imputations (paragraph 9 of Pan Macmillan's defence and paragraphs 9 and 10 of Mr Ibrahim's defence). While the amended interlocutory application filed by Mr Domican referred only to the second contextual imputation, at the hearing of the application Mr Domican submitted that both contextual imputations should be struck out. Pan Macmillan and Mr Ibrahim did not suggest that they were prejudiced by that apparent broadening of the strike-out application. Mr Domican also applied to strike out virtually all of Pan Macmillan and Mr Ibrahim's particulars of truth. The only particulars that Mr Domican did not specifically seek to strike out were the particulars regarding his acquittal of the charges relating to the branch stacking allegations, his conviction for possessing an unlicensed pistol in June 1988 and his conviction for unlawfully threatening an officer in June 2002. 22 Mr Domican advanced two main contentions in support of his application to strike out the common law truth defence. The first contention was that it is not open to a respondent to raise a common law truth defence by pleading and seeking to justify alternative imputations to those pleaded by the applicant. He submitted, in that regard, that the decision of the Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667 was wrong, or at least that the interpretation of the ratio of that case in Setka v Abbott (2014) 44 VR 352 was wrong. The second contention was that the alternative imputations pleaded by Pan Macmillan and Mr Ibrahim differed in substance from the imputations alleged by him. It followed, in Mr Domican's submission, that even if Pan Macmillan and Mr Ibrahim were able to rely on alternative imputations in support of their truth defence on the basis of the decision in Hore-Lacy, they could nevertheless not plead the two alternative imputations that had been pleaded in their defences. 23 Mr Domican also relied on two contentions in support of his application to strike out Pan Macmillan and Mr Ibrahim's contextual truth defences. The first contention was that the contextual imputations pleaded by Pan Macmillan and Mr Ibrahim were too general and imprecise. The second contention was that the substantial truth of the imputations could not be made out by the particulars of truth relied on by Pan Macmillan and Mr Ibrahim. 24 As for the particulars of truth, Mr Domican contended that the particulars of truth were insufficiently specific and precise to enable him to know the case that he is required to meet. More significantly, however, he contended that they were incapable of proving the truth of the alleged alternative and contextual imputations.

Relevant principles 25 Rule 16.21(1) of the Federal Court Rules 2011 (Cth) provides that a party may apply to the Court for an order that all or part of a pleading be struck out on the ground that it contains scandalous, frivolous or vexatious material, is evasive or ambiguous, is likely to cause prejudice, embarrassment or delay in the proceeding, fails to disclose a reasonable cause of action or defence or is otherwise an abuse of the process of the Court. The principles to be applied in considering and determining an application to strike out pleadings or particulars in defamation proceedings commenced in this Court were set out at length in Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473 at [42]-[54]; see too Goodfellow v Fairfax Media Publication Pty Limited [2017] FCA 1152 at [34]-[46]. It is unnecessary to rehearse those principles here. Those principles were recently approved and adopted by the Full Court in Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125 at [132].

the truth defence and the alternative imputations? 26 The parties advanced detailed and lengthy written and oral submissions concerning the circumstances, if any, in which a respondent or defendant in defamation proceedings can raise a common law truth defence which is based on alternative imputations to those pleaded by the applicant or plaintiff. Many authorities were referred to. The issue has mainly arisen in the context of debates concerning the application of the principles of pleading in defamation cases and the provision of adequate particulars of a truth defence, particularly in the context of jury trials. The issue was most recently considered at length by the Full Court in Chau Chak Wing. 27 It is, in the particular circumstances of this case, unnecessary and perhaps undesirable to enter into that rather arcane debate. That is because, even if, as appears to have been accepted in Chau Chak Wing, a respondent is permitted to raise a common law truth defence which is based on alternative or "variant" imputations to those pleaded by the applicant, it is abundantly clear that the alternative imputations that have been pleaded by Pan Macmillan and Mr Ibrahim are not permissible variants of the imputations pleaded by Mr Domican. 28 The relevant authorities have given various different tests or formulations of what may constitute a permissible variant of the applicant's imputations in the context of a truth defence. Not all of those tests or formulations are particularly helpful. The clearest test or formulation is that the variant imputation must at least be "not substantially different to", or must "not differ in substance from", the imputation pleaded by the applicant: Hore-Lacy at [19]-[22] (Ormiston JA), [52]-[54], [58]-[59] (Charles JA); Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; 81 NSWLR 157 at [56]; Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154; 90 NSWLR 79 at [67]. That test derives from the principle that an applicant in defamation proceedings can succeed on an imputation which is not substantially different from, or more injurious than, the imputation pleaded by the applicant: Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519 at [21] (Brennan CJ and McHugh J), [60] (Gaudron and Gummow JJ), [139] (Kirby J); Hore-Lacy at [52]; Bateman at [65]. 29 Pan Macmillan and Mr Ibrahim ultimately accepted that this was the appropriate test. The relevant questions, then, are: first, whether Pan Macmillan and Mr Ibrahim's alternative imputation that Mr Domican "was a violent criminal" is different in substance from Mr Domican's pleaded inference that he "is [was] a violent criminal who took part in gang wars"; and second, whether the alternative imputation pleaded by Pan Macmillan and Mr Ibrahim that Mr Domican "was a criminal" are different in substance from Mr Domican's pleaded imputations that he was a criminal who conducted, or sought to conduct, illegal gambling, or who engaged in, or sought to be engaged in, the supply of heroin. 30 The answer to both those questions is "yes". It is accordingly not open to Pan Macmillan and Mr Ibrahim to plead the alternative or variant imputations as part of their common law truth defences. The contrary proposition, that the alternative imputations pleaded by Pan Macmillan and Mr Ibrahim do not differ in substance from the imputations pleaded by Mr Domican, is not reasonably arguable. 31 The imputation that Mr Domican was a "violent criminal who took part in gang wars" has, as it were, a double defamatory "sting". The suggestion is that Mr Domican was a particular type of violent criminal; one who took part in gang wars. That is substantially different to the far more general suggestion that Mr Domican was a violent criminal. The additional element involving having taken part in gang wars is plainly relevant to the assessment of the seriousness of the imputation. It also materially alters the nature and character of the imputation. A violent criminal could be someone who had engaged in a broad range of criminal conduct, from affray, to domestic violence, to armed robbery or even murder. Not all violent criminals, however, take part in gang wars. 32 It has been accepted, albeit in the context of the defence of contextual truth, that a general imputation differs in substance from a more specific imputation: Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341 at [49]. Even putting that general observation to one side, common sense dictates that the defamatory sting of a statement that a person was a violent criminal who took part in gang wars is substantially different from the more general statement that the person was a violent criminal. The difference between those two statements or imputations is not merely a matter of minor or immaterial detail, or a mere matter of nuance. It is a matter which alters the seriousness, character or sting of the imputation. That difference is such that it could not be said that Mr Domican, having specifically pleaded that Mr Ibrahim's book conveyed that he was a violent criminal who took part in gang wars, could succeed at trial if he proved only that the book conveyed that he was a violent criminal. 33 One way of testing whether two imputations differ in substance is to consider whether different evidence would be required to justify the different imputations: Singleton v John Fairfax & Sons Ltd (unreported, Supreme Court of New South Wales, Hunt J, 20 February 1980); Saint v John Fairfax Publications Pty Ltd [2002] NSWSC 312 at [11]-[12]; Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 at [45]. The evidence that would be required to prove the substantial truth of an imputation that the applicant was a violent criminal who took part in gang wars would be different to the evidence that would be necessary to prove the substantial truth of the imputation that a person was a violent criminal. To use the example given earlier, while evidence which proved that the person had committed offences of affray or domestic violence would be capable of proving the substantial proof of the latter, it would not be capable of proving the substantial truth of the former. 34 That is really the nub of the issue here. The particulars of truth provided by Pan Macmillan and Mr Ibrahim are not capable of establishing the substantial truth of the imputation that Mr Domican was a violent criminal who took part in gang wars. That is because the particulars are not capable of establishing that Mr Domican had taken part in gang wars. Pan Macmillan and Mr Ibrahim effectively conceded as much. That is no doubt why they have pleaded the alternative imputation. That alone is sufficient to demonstrate the substantial difference between Mr Domican's pleaded imputation and the alternative imputation pleaded by Pan Macmillan and Mr Ibrahim. If the two imputations did not differ in substance, evidence which was capable of proving the substantial truth of the alternative imputation would be capable of proving the substantial truth of the imputation pleaded by Mr Domican. 35 Indeed, this rather demonstrates the implausibility of the position advanced by Pan Macmillan and Mr Ibrahim. To make out the defence of justification, either at common law or as provided in s 25 of the Defamation Act, a respondent must prove the substantial truth of all material parts of the defamatory imputation, or all of the sting or stings of the defamation: Sutherland v Stopes [1925] AC 47 at 79; Rofe v Smith's Newspapers Ltd (1924) 225 SR (NSW) 4 at 20; Howden v Truth & Sportsman Ltd (1937) 58 CLR 416 at 420-421; O'Brien v Australian Broadcasting Corporation [2017] NSWCA 338; 97 NSWLR 1 at [172]; Chau Chak Wing at [19]. The statement that Mr Domican took part in gang wars is, for the reasons already given, a material part of the imputation or sting of the defamation pleaded by Mr Domican. Yet Pan Macmillan and Mr Ibrahim appear to contend that they have a reasonably arguable truth defence, even though they concede that their particulars of truth are not capable of proving the substantial truth of that material part or sting of the imputation pleaded by Mr Domican. It is impossible to see how such a defence could be said to be reasonably arguable. 36 The same can be said in relation to the second alternative imputation pleaded by Pan Macmillan and Mr Ibrahim in relation to their defence of truth. That imputation is pleaded as part of Pan Macmillan and Mr Ibrahim's truth defence to the third, fourth, fifth and sixth imputations which are pleaded by Mr Domican. Each of those imputations involves the proposition that Mr Domican was a particular type of criminal: a criminal who conducted, or sought to conduct, illegal gambling and a criminal who engaged in, or sought to be engaged in, the supply of heroin. Those imputations have a substantially different nature and character to the more general imputation pleaded by Pan Macmillan and Mr Ibrahim; that "Mr Domican was a criminal". 37 A person can be said to be a criminal if they have committed any sort of offence within a very broad range of offences - anything from shoplifting to cattle rustling or fraud. That is self-evidently very different from saying that a person was a criminal who had engaged in, or sought to be engaged in, the supply of heroin, or who had conducted, or sought to conduct, illegal gambling. The additional and more specific elements detailing the specific type of criminal conduct that had been engaged in materially adds to the defamatory sting and seriousness of the pleaded imputations. The differences between the imputations pleaded by Mr Domican and those pleaded back by Pan Macmillan and Mr Ibrahim are matters of substance, not mere matters of detail or nuance. The differences are such that it could not be said that Mr Domican, having specifically pleaded that Mr Ibrahim's book conveyed that he was a particular type of criminal, could succeed at trial if he proved only that the book conveyed that he was a criminal. 38 It is also evident that the evidence that would be necessary to prove the substantial truth of the more specific imputations pleaded by Mr Domican would be substantially different to the evidence that would be capable of proving the substantial truth of the general imputation that Mr Domican was a criminal. It would again appear that Pan Macmillan and Mr Ibrahim do not contend that their particulars are capable of proving the substantial truth of the more specific imputations pleaded by Mr Domican. It is presumably for that reason that they have pleaded the alternative imputation. The apparent suggestion that they can make out a truth defence in circumstances where they cannot prove the substantial truth of the imputations pleaded by Mr Domican is entirely unmeritorious. 39 It follows that the alternative imputations pleaded by Pan Macmillan and Mr Ibrahim are not permissible variants of the imputations pleaded by Mr Domican. They differ in substance from, or are substantially different from, Mr Domican's imputations. It is not open to Pan Macmillan and Mr Ibrahim to plead those alternative imputations for the purposes of a common law truth defence. Nor would it be open to plead those alternative imputations for the purposes of a defence of justification pursuant to s 25 of the Defamation Act. It also follows that the common law truth defences currently pleaded by Pan Macmillan and Mr Ibrahim are not reasonable defences and should be struck out pursuant to r 16.21(1)(e) of the Rules. It might equally be concluded that the defences as pleaded are ambiguous and likely to cause prejudice or embarrassment because they rely on substantially different and therefore impermissible variants of the imputations pleaded by Mr Domican.

THE contextual IMPUTATIONS 40 The issues raised by Mr Domican in relation to the contextual truth defence pleaded by Pan Macmillan and Mr Ibrahim are different to those raised in relation to the truth defence. 41 Section 26 of the Defamation Act provides as follows: 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. 42 Mr Domican conceded, for the purposes of this interlocutory application, that it was reasonably arguable that the two contextual imputations pleaded by Pan Macmillan and Mr Ibrahim were different in substance from the imputations that he had pleaded: cf. Zeccola at [42]-[50]. They could therefore be said to be "other imputations" for the purposes of s 26(a) of the Defamation Act. Mr Domican also conceded, for the purposes of this application, that it was reasonably arguable that the two pleaded contextual imputations were carried or conveyed by Mr Ibrahim's book. Mr Domican contended, however, that the two contextual imputations were impermissibly general and ambiguous. 43 It is well established that a contextual imputation must be pleaded with specificity and precision: Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [32]-[34] (Hodgson JA, McColl JA and McClellan AJA agreeing); Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 at [22]-[25] (Emmett JA, McColl and Leeming JJA agreeing). The question whether a pleaded imputation meets that requirement is to be resolved by considerations of practical justice in the circumstances of the particular case, rather than by philology or considerations of the possibility of linguistic refinement: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 (per Gleeson CJ); King at [24]. The issue that is to be decided is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the applicant or plaintiff contends: Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155; Drummoyne at 138. 44 It is also necessary for a contextual imputation to be "formulated so that facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship both to the contextual imputation itself and to the published material relied on by the plaintiff": Hodgkinson at [34]; King at [42]; McLachlan v Browne (No 7) [2018] NSWSC 1914 at [31]. The particular difficulty that may arise if the contextual imputation is not so formulated is that the respondent can then rely on particulars of truth that may have nothing whatsoever to do with the published material. 45 There is no doubt that the first contextual imputation pleaded by Macmillan and Mr Ibrahim, that Mr Domican "was a violent criminal" is very general in nature. It is, for example, not limited as to time or place. That, however, is not itself determinative. The question is whether, in the particular circumstances of this case, it is impermissibly imprecise. 46 There would appear to be two potential difficulties with the first contextual imputation in terms of imprecision. The first concerns the breadth of the conduct that may potentially justify the epithet "violent criminal". That itself tends to suggest a degree of imprecision. The second issue is that the breadth or generality of the epithet would permit Pan Macmillan and Mr Ibrahim to rely on particulars of truth that bear no relationship to the allegedly defamatory publication. 47 In Hodgkinson, a contextual imputation which stated that "[t]he plaintiff is not a fit and proper person to supervise other scientists" was struck out. The appeal from that decision was dismissed. Hodgson JA (with whom McColl JA and McClellan AJA agreed) reasoned as follows (at [35]): There is a huge range of conduct, ranging through various degrees of incompetence, dishonesty and criminality, that could make a person not a fit and proper person to supervise other scientists. It is true that the particulars of facts, matters and circumstances relied on to establish truth, as presently specified, do not extend beyond matters referred to in the broadcast; but if the contextual imputation is reinstated, the particulars could be amended to include matters having nothing to do with the broadcast, anywhere within the huge range referred to above. 48 In King, contextual imputations which stated that the plaintiff, Mr King, had conducted himself in a corrupt manner and had engaged in serious corporate misconduct were struck out. Leave to appeal from that decision was refused. Emmett JA reasoned as follows (at [41]-[42]): … The difference between an imputation that the plaintiff is a child molester (or that a plaintiff is dishonest), on the one hand, and an imputation that a plaintiff is "corrupt" or has engaged in "serious corporate misconduct", on the other hand, is that in the former cases it is clear what the act or condition is that gives rise to the imputation. In the latter cases, given the range of possible conduct to which the imputation may be making reference, it is not. Some epithets may fairly arise from a specific instance. Thus, if a person is alleged to have committed a murder, the epithet "murderer" may well flow from that specific instance. However, the epithets applied to Mr King, of having conducted himself in a corrupt manner and of having engaged in serious corporate misconduct, are of such a nebulous character that specific instances of conduct that might constitute corruption or corporate misconduct do not necessarily justify the imprecise epithet. … (Footnote omitted.) 49 Similar reasoning was employed by McCallum J in McLachlan (at [19]) in striking out a contextual imputation that the "plaintiff is a sexual predator". 50 The difficulties with the first contextual imputation in this matter are not entirely dissimilar to the contextual imputations that were struck out in Hodgkinson, King and McLachlan. A large range of conduct could make a person a violent criminal. The acts or conditions that may give rise to that epithet are unclear and the expression is somewhat nebulous. 51 The other difficulty with the first contextual imputation is that, like the contextual imputation considered in Hodgkinson, it would permit Pan Macmillan and Mr Ibrahim to rely on particulars of truth that have nothing whatsoever to do with Mr Ibrahim's book and its references to Mr Domican. Indeed, some of the particulars of truth relied on by Pan Macmillan and Mr Ibrahim could fairly be said to have no relationship or connection whatsoever with what is said about Mr Domican in the book. The clearest example is the particulars relating to Mr Domican allegedly threatening witnesses in the context of the charges relating to branch stacking. On just about any view, those allegations relate to events that "bear no reasonable relationship to the published material" relied on by Mr Domican: cf. Hodgkinson at [34]. 52 While those two issues or difficulties with the first contextual imputation might at first blush suggest that it is too imprecise and should be struck out, the pleading of that contextual imputation must be considered in the context of the facts and circumstances of this case. In particular, it must be considered in light of the fact that Mr Domican himself employs the same expression or epithet - "violent criminal" - in one of his pleaded imputations. While the imputation pleaded by Mr Domican adds the additional words "who took part in gang wars", those words, read in the context in which they are used, do not limit or confine the expression "violent criminal". Rather, they appear to suggest an additional element: that Mr Domican was not only a violent criminal, but he also engaged in gang wars. 53 It would, in all the circumstances, be somewhat anomalous to strike out Pan Macmillan and Mr Ibrahim's first contextual imputation by reason of the imprecision of the expression "violent criminal" in circumstances where that same expression is employed by Mr Domican in pleading his imputations. Moreover, it is doubtful that the epithet "violent criminal" is as imprecise as those considered in Hodgkinson, King and McLachlan. A "violent criminal" is simply someone who has committed violent crimes. While it is true that there are a wide range of violent crimes, that alone provides no sound basis to strike out the imputation. 54 As for the fact that the breadth of the first contextual imputation would permit Pan Macmillan and Mr Ibrahim to rely on particulars of truth that have no relationship with the allegedly defamatory publication, the case to strike out the imputation on that basis would be stronger had Mr Domican pleaded his imputation with more precision or specificity. It seems tolerably clear that the events described in Mr Ibrahim's book, insofar as they relate to Mr Domican, occurred in Sydney in or around the late 1970s or the 1980s. The imputations pleaded by Mr Domican are not, however, limited as to time or place. That is not intended as a criticism. It is a matter for Mr Domican how he wishes to plead his case. The point is that in Hodgkinson, King and McLachlan, the plaintiffs' imputations were pleaded in quite specific terms. The breadth and imprecision of the contextual imputations in those cases were considered in that context. The circumstances here are somewhat different. 55 In all the circumstances, I am not persuaded that it is appropriate to strike out the first contextual imputation for the reasons advanced by Mr Domican. It would be preferable, and the issues would be more clearly defined, if the first contextual imputation was pleaded in more specific terms. I can, for example, foresee potential difficulties at trial determining the relative seriousness of the imputations and contextual imputations, if the matter gets to the stage where that issue must be determined, given that they are pleaded in such general terms. That potential issue was not ventilated in submissions and, in any event, provides no basis to strike out the contextual imputation at this stage. 56 The question whether the particulars of truth which have been provided are sufficient and capable of justifying the second contextual imputation is another matter. That question is dealt with next. 57 There are also deficiencies with the second contextual imputation: that Mr Domican "participated [was a participant] in the criminal underworld in New South Wales". The main difficulty with that imputation is that the expression "participated in" or "was a participant in" is unclear and ambiguous. There is also a degree of imprecision in the expression "criminal underworld". 58 It was submitted on behalf of Pan Macmillan and Mr Ibrahim that, when read in the context of the particulars of truth upon which they rely, the expression "participated in" or "was a participant in" meant "knowingly involved in [the] criminal activities" engaged in by the criminal underworld. The difficulty with that submission, however, is that it should not be necessary to resort to the particulars of truth to determine the meaning of the pleaded imputation. As McCallum J put it in McLachlan (at [15]): … The vice of an imprecise imputation is the subjectivity of its interpretation. That is what gives rise to the potential for confusion in the interlocutory stages and at the trial. If the meaning of an imputation is uncertain, or open to subjective interpretation, the scope of the particulars and evidence that should be allowed to support it will equally be unclear. To measure the precision of a contextual imputation by reference to the particulars of truth provided to support it inverts the process. The issues in the proceedings must first be identified with clarity by the pleadings; that is the only way to avoid confusion, cost and delay both in the interlocutory stages and at the trial. 59 Her Honour similarly observed (at [19]), that "[i]n order for the proceedings to be fair, the imputation itself must be clear enough to allow rulings on admissibility to be made". 60 If the pleaded imputation was intended to mean that Mr Domican was knowingly involved in the criminal activities of the criminal underworld, it will have to be reformulated. Counsel for Pan Macmillan and Mr Ibrahim put forward a reformulated version of the second contextual imputation in the course of the interlocutory hearing. It is not sufficient for the reformulation of this imputation to have occurred orally in the course of the hearing. In the circumstances, the second contextual imputation should be struck out. 61 If the second contextual imputation is reformulated as proposed, that may give rise to difficulties with the particulars of truth. There would be little point in Pan Macmillan and Mr Ibrahim reformulating this contextual imputation if the particulars are not capable of proving that the reformulated claim is substantially true. It is thus necessary to consider the sufficiency and adequacy of the particulars to determine whether the proposed reformulated contextual imputation is viable.

Sufficiency and adequacy of the particulars of truth 62 As noted earlier, the principles relevant to the sufficiency and adequacy of particulars of truth in a defamation case were considered at some length in Rush at [42]-[54]. 63 In the present case, there are issues in relation to both the capacity of the particulars of truth to prove the contextual imputations and the sufficiency of the particulars in terms of enabling Mr Domican to know the case he has to meet. The particulars will be addressed by reference to the four key allegations summarised earlier in these reasons. 64 The first allegation concerns events which occurred about 40 years ago. The allegations concerning branch stacking alone are, on just about any view, incapable of establishing either that Mr Domican was a violent criminal, or that he participated in or was a participant in the criminal underworld. The only allegations that are potentially capable of proving the substantial truth of the first contextual imputation are the allegations that Mr Domican engaged in "illegitimate conduct", "acts of intimidation and thuggery" and made threats of violence to the witnesses so as to cause them to give evidence favourable to his defence to the charges relating to branch stacking. It is perhaps arguable that a person who intimidates and makes threats to a witness is or may be a violent criminal. 65 There are, however, difficulties with the particulars that are said to support those allegations. 66 The first difficulty is that the particulars make it clear that the allegations of intimidation and violent threats are based on highly tenuous inferences. Those inferences are said to flow from statements and admissions made by Mr Domican during the television interview and from the fact that Mr Domican had met with "a number of witnesses" and those witnesses subsequently changed their evidence. 67 As for the interview, none of the particularised statements by Mr Domican during the interview could be construed as an admission that he engaged in acts of intimidation or thuggery or made threats of violence to any of the witnesses. Pan Macmillan and Mr Ibrahim appeared to rely on Mr Domican's demeanour during parts of the interview to support the inference. That demeanour is not particularised. In any event, it is not reasonably arguable that Mr Domican's demeanour during the interview is capable of constituting an admission that he engaged in the conduct alleged by Pan Macmillan and Mr Ibrahim. 68 As for the fact that the witnesses allegedly changed their evidence after Mr Domican met with them, that fact is incapable of supporting the alleged inference of violent threats or intimidation. That is so even considered along with the other particulars. The witnesses may have changed their evidence for reasons that had nothing to do with threats of violence or intimidation. Needless to say, there is no suggestion that Mr Domican was investigated, let alone charged or convicted, of any offence or offences arising from those alleged incidents. 69 The second difficulty is that the particulars are, in any event, imprecise and deficient. Indeed, they raise more questions than they answer. How many witnesses did Mr Domican meet with and what were their names? When and where did he meet with them? What exactly is it alleged that he said or did when he met them? Was he in company? What exactly is said to constitute "illegitimate conduct", or "acts of intimidation and thuggery"? What were those "acts"? What exactly were the "threats of violence"? How did the witnesses change their evidence; what was it initially and what was it when they in fact gave evidence? Were the witnesses cross-examined about their supposed change in evidence? Without answers to at least some of those questions, it would be difficult, if not impossible, for Mr Domican to know the case he has to meet. 70 The allegations made against Mr Domican by Pan Macmillan and Mr Ibrahim are allegations of serious criminal conduct. They must be properly particularised. It could scarcely be said that the particulars relating to those allegations are specified with the same precision as in an indictment: cf. Rush at [52] and the cases there cited. The fact that Pan Macmillan and Mr Ibrahim may be in no position to provide further or better particulars given the age of the allegations is no answer to the problem posed by the deficiencies in the existing particulars. The deficiency of the particulars alone provides a proper basis to strike them out. 71 The particulars of the second allegation, that Mr Domican was convicted of the offences of possession of an unlicensed pistol and goods in custody in June 1988, is not directly challenged by Mr Domican. It is nonetheless difficult to see how it assists in any way in establishing the substantial truth of either of the contextual imputations. Conviction of the offence of goods in custody almost self-evidently does not make Mr Domican a violent criminal. Nor does it make him a participant in the "criminal underworld". Conviction of the offence of possession of an unlicensed pistol might assist in proving that Mr Domican was a violent criminal, but that would depend to a large extent on the precise particulars of the offending conduct. No such particulars are provided. 72 It may be accepted that it is necessary to consider the cumulative effect of the particulars and not "pick off one by one": see Rush at [51] referring to Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475 at [54]. It should be noted, in this context, however, that the conviction for possessing an unlicensed pistol occurred well after the events the subject of the first allegation, and before the events the subject of the latter allegations. 73 The third allegation concerns Mr Domican's alleged association with or employment by Mr Bayeh. There are a number of difficulties with the particulars of that allegation. 74 First, it is, at best, highly doubtful that the particulars are capable of establishing the truth of the first contextual imputation. That is because the particulars appear to allege no more than that Mr Domican provided some sort of protection or bodyguard services for Mr Bayeh. That does not make him a violent criminal. It is not directly alleged that he committed any offence or offences. If that is to be implied, what are the offences? Emphasis appears to be placed on the fact that on one or perhaps two occasions Mr Domican carried a gun in connection with his protection of Mr Bayeh. It is not, however, alleged that his carrying a gun in those circumstances constituted an offence, or occurred in circumstances that constituted an offence. The vague and ambiguous references to Mr Domican providing the protection services "in connection with Mr Bayeh's illegal drug activities" do not assist and are, in any event, problematic for different reasons. 75 Second, the extent to which those allegations are probative of the substantial truth of the second contextual imputation depends on the meaning that is to be given to "participated in" or "was a participant in". The ambiguity of those expressions was referred to earlier. It could perhaps be argued that because he provided protection services for Mr Bayeh, who is said to be part of the so-called "criminal underworld", Mr Domican therefore "participated in" the criminal underworld. As noted earlier, however, during the hearing of the interlocutory application, counsel for Pan Macmillan and Mr Ibrahim suggested that "participated in" meant "knowingly involved" in the criminal activities of the criminal underworld. If that is so, and if the imputation is reformulated to reflect that position, the difficulty for Pan Macmillan and Mr Ibrahim is that the particulars do not clearly or unequivocally include facts that would support the substantial truth of the statement that Mr Domican was knowingly involved in Mr Bayeh's illegal drug activities. 76 Third, the particulars relating to those allegations lack the requisite specificity and, in parts, are vague and ambiguous. It suffices to give only a few examples. It is said that Mr Domican accompanied Mr Bayeh when Mr Bayeh conducted his "business". Assuming, for present purposes, that the business there referred to included Mr Bayeh's business involving the sale of heroin and cocaine, does this amount to an allegation that Mr Domican was knowingly involved in that business? If so, what exactly did he do and what is the basis of the allegation that he knew Mr Bayeh's business included selling heroin and cocaine? If it is alleged that Mr Domican was knowingly involved in Mr Bayeh's business of selling heroin and cocaine, that almost certainly amounts to an offence. If that is to be alleged, it should clearly be alleged and proper particulars of that allegation should be provided. 77 Exactly the same can be said about the vague and ambiguous statement that Mr Domican "regularly stood outside" the premises where Mr Bayeh was said to have conducted his business, and the equally vague and ambiguously expressed inference or conclusion that Mr Domican provided protection "in connection with Mr Bayeh's illegal drug activities". Is it alleged that Mr Domican knew what was going on in the premises? If so, what is the factual basis of that allegation? What does "in connection with" mean in this context? Again, if it is alleged that Mr Domican knowingly assisted, or was knowingly involved in, Mr Bayeh's drug selling business, that would be an offence. If that is alleged, it should be stated in explicit terms and proper particulars should be provided. 78 The alleged inference that Mr Domican "engaged in violence" or was "prepared to engage in violence" is no better. If he engaged in violence, what exactly was that violence? Is it suggested that preparedness to engage in violence constitutes an offence? If it is in fact alleged that Mr Domican was knowingly involved in the commission of any offences involving violence, proper particulars should be provided of those offences and what exactly it is alleged that Mr Domican did which constituted those offences. 79 The fourth allegation, that in June 2002, Mr Domican was convicted of an offence arising from an incident where he threatened to break the neck of a police officer, was not the subject of any direct complaint by Mr Domican. Nevertheless, even read in the context of the other particulars, it does not assist in any, or any material, way in proving the substantial truth of the contextual imputations. It could conceivably assist in establishing that Mr Domican was a violent criminal, though that would again depend on the precise facts and circumstances in which the offending conduct occurred. No precise particulars of those facts and circumstances are provided. It may also be observed that this offence appears to have been committed in Western Australia. It accordingly has no apparent nexus with the "criminal underworld" in New South Wales or the events which supposedly occurred in Kings Cross, which are the subject matter of the alleged defamatory publication. 80 The cumulative effect of the deficiencies and inadequacies of the particulars of truth that have just been outlined compel the conclusion that they should be struck out. They are, in all the circumstances, both insufficient and inadequate. They are insufficiently detailed, lack the required detail and specificity and, in parts, are vague and ambiguous. As presently drafted, they are also incapable of establishing the substantial truth of the contextual imputations. It follows that the contextual truth imputations should also be struck out on the basis that they are unsupported by proper particulars of truth. 81 It should also be observed, for more abundant caution, that the particulars are also incapable of establishing the first variant or alternative imputation in Pan Macmillan and Mr Ibrahim's truth defence. While the particulars relating to convictions are capable of proving the second alternative imputation that Mr Domican was a violent criminal, that imputation must be struck out in any event for the reasons already given.

CONCLUSION 82 The truth and contextual truth defences as currently pleaded by both Pan Macmillan and Mr Ibrahim should be struck out. The truth defences are pleaded in paragraphs 7 and 8 of the filed defences and the contextual truth imputations are pleaded in paragraph 9 of Pan Macmillan's defence and paragraphs 9 and 10 of Mr Ibrahim's defence. The particulars of truth that have been provided by Pan Macmillan and Mr Ibrahim should also be struck out. While the amended interlocutory application did not seek to strike out all the particulars in the filed defences, Pan Macmillan and Mr Ibrahim ultimately provided amended particulars of truth. The strike-out application proceeded on the basis of the amended particulars. While no specific complaint was made concerning the particulars of Mr Domican's convictions, standing alone those particulars are incapable of establishing the substantial truth of the pleaded truth or contextual truth imputations. 83 Mr Domican did not contend that Pan Macmillan and Mr Ibrahim should not be given leave to replead those parts of the defences which are struck out. While some of the defects or deficiencies in the existing truth and contextual truth defences have been found to be fairly fundamental, it nevertheless may be that Pan Macmillan and Mr Ibrahim will be able to reformulate the alternative or contextual imputations and thereby remedy some of those deficiencies. The reformulated second contextual imputation postulated during the hearing may remedy the current defect in that imputation. The same can be said in relation to the existing particulars of truth, though it may be, having regard to the evidence apparently available to Pan Macmillan and Mr Ibrahim, that the deficiencies in some of the particulars may not be able to be remedied. In any event, it would, in all the circumstances, be appropriate to give Pan Macmillan a further opportunity to finalise their defences. Leave should accordingly be granted to Pan Macmillan and Mr Ibrahim to file any amended defences within four weeks of the date of this judgment. 84 Pan Macmillan and Mr Ibrahim should pay the costs of the amended interlocutory application. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney.

Defamation Act 2005(NSW)ss 24, 25, 26

Federal Court Rules 2011(Cth)rr 16.21(1)

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