(17) The plaintiff is a danger to humanity.
16 Imputations 1- 4 conveniently can be dealt with together.
17 The insertion of the phrase "his child-rearing methods" was purportedly curative of an earlier defect. However the problem arises by the employment of "caused" in imputations 1 and 2, and "responsible for" in imputations 3 and 4. The use of the words referred to will more often than not give rise to problems as to specificity: see Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 162F - 164A.
18 The fundamental contention for the plaintiff is that each of the pleaded imputations must be considered in the light of the content and context of the actual matter complained of published by the defendant, reliance being placed upon Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at 172-3 and John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77. Further, it is argued that the defendant is not entitled to complain that a pleaded imputation lacks clarity or specificity if that lack flows "naturally" from the matter complained of: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137B - 138D per Gleeson CJ.
19 I am of the opinion that Nikolopoulos cannot be called in aid to permit context to provide a meaning for the imputation itself. This would in effect overturn the decision of the Court of Appeal in Drummoyne Municipal Council and earlier decisions as to the content of the rule requiring that a plaintiff "must specify" each imputation upon which it relies: see Gleeson CJ in Drummoyne at 138B-B and in particular the case to which his Honour refers, namely Feros v West Sydney Radio Pty Ltd (Court of Appeal, 27 June 1982, unreported); see also Whelan v John Fairfax Publications & Sons Ltd (1988) 12 NSWLR 148 at 155 per Hunt J.
20 It is the ambiguity and want of specificity in the words referred to that render each of these imputations defective in form; capacity therefore cannot be considered.
21 Each of imputations 1, 2, 3 and 4 is struck out with leave to replead.
22 Imputations 5, 6 and 7 also can be dealt with as a group.
23 In relation to imputation 5, this is arguably capable of being carried by the matter complained of as a whole, but particularly from the passage from line 182 to line 208. I find the matter complained of capable of carrying this imputation and that it is capable of being defamatory.
24 Imputation 6 I find to be incapable of being carried by the matter complained of and will enter a verdict for the defendant in relation thereto. There is simply no basis for an assertion that the plaintiff was under the reasonable suspicion on the part of an official body of his having engaged in child maltreatment.
25 Imputation 7 is bad in form in my view by reason of its containing the phrase "so conducted himself that" and it is struck out with leave to replead. An imputation in terms "the plaintiff was under investigation for child maltreatment" I would have thought would be unexceptionable.
26 In relation to imputations 8, 9 and 10, these in my view are clearly capable of being carried by the matter complained of and capable of being defamatory.
27 Imputation 11 is in my view rhetorical, strained and is incapable of being carried by the matter complained of in terms of "cruelty" vis-à-vis the plaintiff. I enter a verdict for the defendant in relation to imputation 11.
28 Imputation 12 I find to be capable of being carried by the matter complained of - just. I think it appropriate that the jury determine this issue. I accordingly hold that imputation 12 is capable of being carried and capable of being defamatory.
29 As to imputation 13, the use of the phrase "pathologically obsessed" in line 194 and "warped idea" in line 211 are sufficient to permit imputation 13 to go to the jury. I hold imputation 13 to be capable of being carried and capable of being defamatory.
30 In relation to imputation 14 (and others) the plaintiff argues that the matter complained of is "sensationalist". It could be hardly argued to the contrary in my view. But even that quality, and the headline "Fundamentalism: a war against children", cannot, on a reasonable basis, give rise to so rhetorical an imputation. I find that the matter complained of is incapable of carrying imputation 14 and enter a verdict for the defendant in regard thereto.
31 Imputations 15 and 16 insofar as each uses the word "causes" are infected by the flaws attending imputations 1-4. Each is bad in form and I strike imputations 15 and 16 out with leave to replead.
32 Imputation 17 might on its face appear to be rhetorical but it is not unreasonably extreme in the way that I have found imputation 14 to be. There is arguably something about the tenor of the whole of this matter complained of that could give rise to a defamatory imputation such as 17. I hold the matter complained of capable of carrying imputation 17 and that it is capable of being defamatory.
33 I consider it appropriate that the defendant have his costs occasioned by and thrown away by reason of the amendment made on 4 December. Otherwise, when one considered the balance at the end of the application with which I have been concerned the outcome favours each side equally. Each party will otherwise pay its own costs.
34 The formal orders are:
- The plaintiff, in accordance with these reasons, is to provide particulars of the facts, matters and circumstances upon which he relies in asserting that the defendant published the matter on the internet.
- Imputations 1, 2, 3, 4, 7, 15 and 16 are struck out with leave to replead.
- Imputations 5, 8, 9, 10, 12, 13 and 17 are capable of being carried by the matter complained of and capable of being defamatory.
- Imputations 6, 11 and 14 I find to be incapable of being carried by the matter complained of and enter a verdict for the defendant in respect of those causes of action.
- The plaintiff has leave to file an amended statement of claim in accordance with these reasons within 14 days of today.
- The plaintiff is to pay the defendant's costs thrown away by the amendment of 14 December, otherwise each party is to pay his own costs.
- I place the matter in the Registrar's List for directions on Wednesday 7 July 2004.