Giani v Queensland Television Ltd & Ors [2015] QDC 286

Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190

Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232

Fairfax Media Publications v King [2015] NSWCA 172

Fairfax Media Publications v Zeccola [2015] NSWCA 329

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716

Habib v Nationwide News Pty Ltd [2010] NSWCA 34; (2010) 76 NSWLR 299

Hansen v The Border Morning Mail Pty Ltd (1988) Aust Torts Reports 80-188

John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541

Maisel v Financial Times Ltd [1915] 3 KB 336

Queensland Newspapers Pty Ltd v Palmer [2011] QCA 286; [2012] 2 Qd R 139

State of New South Wales v Deren [1999] NSWCA 22; (1999) Aust Torts Reports 81-502

Gatley on Libel and Slander, 12th ed (2013), Sweet & Maxwell

Mark O'Brien Lawyers for the Defendants / Respondents

[1] By this proceeding, the plaintiff, who is the manager of a tattoo parlour called "Exit 79", is claiming damages against the defendants for alleged defamation arising out of a segment of the television program "A Current Affair" broadcast on 24 February 2014.

[2] Although further reference will be made below to the transcript of the whole segment of the program, in so far as it concerned the tattoo parlour managed by the plaintiff, the relevant part is as follows:

"JENNA HUDSON:[1] Superintendent Jim Keogh runs the team with the Deputy Commissioner. Together they're taking one of the toughest stances in the country.

DEPUTY COMMISSIONER BRETT POINTING: It started with the Royal Pines incident between the Finks and the Hells Angels. We saw the innocent bystander shot at the Robina Shopping Centre.

JENNA HUDSON: The tipping point was the Broadbeach brawls last year where a violent bikie war erupted in the street involving Bandidos and Finks members.

FOOTAGE OF BIKIES AND SOUNDS OF BRAWL - Police get out of the way. Get out of the way. Urgent urgent urgent.

JENNA HUDSON: That's when the taskforce formed, along with new anti-bikie laws giving tougher penalties for members and associates of criminal bikie gangs who commit crime.

SUPERINTENDENT KEOGH: And since 2007 we've seen the membership of gangs grow by over 50 per cent.

JENNA HUDSON: Right now officers from Taskforce Take Back are busting this tattoo parlour, one of many that will be investigated in this operation. Using intel police believe some of these shops could be connected to criminal bikie gangs and if three or more bikies are caught inside these shops it's considered illegal.

JENNA HUDSON: Some tattoo artists who claim they're operating legally are becoming frustrated by the continual police presence.

UNIDENTIFIED MALE: I've been bugged more than five times. I've been followed home. I've been strip searched on the side of the road.

JENNA HUDSON: Tattoo shop owners must have a special registration to prove they're a legitimate business in Queensland. On the Gold Coast a whopping 85 per cent of tattoo parlours have links to criminal bikie gangs.

POLICE OFFICER: Are you aware of the changes coming in the legislation?

UNIDENTIFIED MALE: I have to um, pay for um - pay for my licence.

JENNA HUDSON: Come July 1 police will be able to shut down businesses and strip licences from certain workers with any tie to gang members. In the firing line are builders, electricians, workplace health and safety officers, security guards, tow truck drivers, gym and tattoo parlour owners.

UNIDENTIFIED MALE: So we're paying for, to be part of an organisation to put us on the books I guess. Make us look more legitimate which most of us are already anyway.

[3] The defamatory imputations which the plaintiff alleges were conveyed by the relevant segment of the program are set out in paragraph [4] of the statement of claim, as follows:

"(a) As the manager of a tattoo parlour which was busted by the police, the Plaintiff is not a fit and proper person to manage a tattoo parlour;

(b) A tattoo parlour managed by the Plaintiff was caught in a surprise raid by the police in the act of committing a criminal offence;

(c) In carrying out a surprise raid on the tattoo parlour managed by the Plaintiff, the police held a reasonable suspicion that a criminal offence was being committed at the tattoo parlour."

[4] The defendants, among other things, rely upon a defence of contextual truth under s 26 of the Defamation Act 2005 (Qld), which 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, 1 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."

[5] As explained by Hunt J in Jackson v John Fairfax & Sons [1981] 1 NSWLR 36 at 39:

"The defence of contextual truth accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence has been established in relation to that imputation; it asserts that the imputation pleaded by the defendant is also conveyed by the matter complained of (such imputation being called the contextual imputation); the defence then asserts that, even though the plaintiff's imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant's contextual imputation upon the plaintiff's reputation that the publication of the imputation of which he complains did not further injure his reputation."[2]

[6] In this regard, paragraph [8] of the Further Amended Defence (defence) pleads:

"8. ... if, which is denied, the matter broadcast on 24 February 2014 carried imputations that were of and concerning and defamatory of the Plaintiff, the Defendants say as follows:

(a) the said matter broadcast carried, in addition to the Plaintiff's imputations, the following imputation:

(i) the Plaintiff has so acted as to warrant being charged by the police for allegedly committing a criminal offence (the Contextual Implication);

(b) the Contextual Imputation was substantially true;

(c) by reason of the substantial truth of the Contextual Imputation, publication of so many of the Plaintiff's imputations as are not found to be substantially true do not further harm the reputation of the Plaintiff."

[7] In the defence, the following particulars are given of the contextual imputation:

Contextual Imputation: The Plaintiff has so acted as to warrant being charged by the police for allegedly committing a criminal offence

1. From not later than March 2014, the Crime and Corruption Commission and the Queensland Police were conducting operations targeting the distribution of drugs in Queensland;
2. The Plaintiff was a person of interest in relation to the Crime and Corruption Commission operation;
3. In January 2015 both the Plaintiff's residence and his place of work were the subject of search warrants executed by the Queensland Police during the course of those operations.
4. In January 2015 the Plaintiff was charged with supplying a dangerous drug on 13 separate occasions between July 2014 and November 2014 and with unauthorised dealing of shop goods and the Plaintiff has been fined in relation to those latter charges."

[8] The defendants also rely on the substantial truth of the contextual imputation, by way of a plea in mitigation of damages in paragraph [14] of the defence, which reads as follows:

"14. ... the Defendants rely in mitigation of damages on:

(a) the substantial truth of the Contextual Imputation as is proved to be true;

(b) the facts, matters and circumstances proven by the Defendants in evidence in support of the contextual truth defence;

(c) the arrest and charge of the Plaintiff with a number of counts of supplying dangerous drugs;

(d) the charging of the Plaintiff for unauthorised dealing of shop goods contrary to s 5(1)(c) of the Regulatory Offences Act, 1985 and the fining of the Plaintiff in relation to that charge."

[9] As is apparent from the particulars, the defendants rely on post-publication events to prove the substantial truth of the contextual imputation relied upon.

[10] By his application filed in this court on 21 October 2015,[3] the plaintiff seeks orders:

• (a) pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (UCPR), striking out paragraphs [8] and [14] of the defence; and
• (b) pursuant to r 162 UCPR, striking out the particulars of the contextual imputation.

[11] In addition, orders are sought varying the dates for compliance with directions previously made, and for leave to administer interrogatories (neither of which are controversial between the parties).

Cautious approach required on an application to strike out

[12] The defendants have elected for this proceeding to be tried by jury.[4] Whilst it will be a matter for the jury to determine whether the defendants published defamatory matter about the plaintiff and, if so, whether any defence raised by the defendants has been established,[5] the question whether the words complained of are capable of conveying a defamatory meaning (and, likewise, capable of carrying contextual imputations) is a question of law for the judge[6], as is the question whether, as a matter law, a pleading is capable of satisfying a statutory requirement (here, s 26 of the Defamation Act) or is otherwise consistent with established principles, including as to the admissibility of evidence of post-publication material.

[13] The approach to be taken on an application such as this is reflected in the following observations of McPherson JA, approved by Gleeson CJ, McHugh, Gummow and Heydon JJ in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 at 1719:

"Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken."[7]

[14] It has also been held that a pleading of the kind sought to be struck out here ought only be struck out where the case is clear, and that "[w]here it is fairly arguable that the plea, or the part of it complained of, is sustainable, the matter should be left to be dealt with at the trial".[8]

[15] Although, recently, in Fairfax Media Publications v Zeccola [2015] NSWCA 329 McColl JA (with whom Macfarlan JA and Sackville AJA agreed), in rejecting a submission that unless it was unarguable that the contextual imputations failed to meet the requirements of s 26, it was premature to determine, before trial, that an aspect of the defence should not be left to the jury, said (at [89]):

"... It is always a matter for the Court to determine the question whether, as a matter of law, a pleading is capable of satisfying a statutory requirement. That position is preserved by s 22(5) of the 2005 Act.[9] It has long been held in this context that both the plaintiff and the defendant have to plead by anticipating how the jury may interpret the matter complained of. Determining questions of capacity is essential to the efficient conduct of both jury trials and the trials generally, and to the Court's obligations to ensure the just, quick and cheap resolution of the real issues in the proceedings."[10]

Plaintiff's grounds of objection to the contextual imputation and plea in mitigation

[16] The plaintiff relies on five grounds in seeking to have paragraph [8] of the defence struck out, namely:

• (a) the contextual imputation is not conveyed by the program;
• (b) the contextual imputation is vague and imprecise;
• (c) the contextual imputation does not arise in addition to the plaintiff's imputations;
• (d) the contextual imputation does not constitute a general charge against the plaintiff; and
• (e) the contextual imputation cannot satisfy s 26(b) of the Act, because it is not capable of being substantially true, since it concerns something which is "transient or contingent only (ie, being charged), rather than being premised on a state of affairs which is determinative and conclusive (ie, a finding of guilt/conviction)".

[17] Further, the plaintiff argues for the particulars of the contextual imputation to be struck out on the following bases:

• (a) complaints about the lack of clarity of meaning in particulars 1 and 2;
• (b) if (which the plaintiff denies) the contextual imputation constitutes a general charge against the plaintiff, the post-publication acts relied upon in the particulars lack both temporal and qualitative proximity;
• (c) particular 4 refers to a charge of a regulatory offence, which is not a criminal offence.

[18] The plaintiff objects to the defendant's plea in mitigation, on the grounds that the matters set out in paragraph [14]:

• (a) are not directly relevant to the contextual background in which the program came to be made (because they concern matters which took place after the program was published);
• (b) are not directed to the same sector of the plaintiff's reputation which is said to be maligned by the defamatory imputations pleaded by the plaintiff;
• (c) concern post-publication material which is not otherwise admissible; and
• (d) again, on the basis that particular 4 refers to something which is not a criminal offence.

Application to strike out the contextual truth defence

[19] The parties agreed that the test to be applied is as stated by Boddice J in Queensland Newspapers Pty Ltd v Palmer [2011] QCA 286; [2012] 2 Qd R 139 at [19]- [20]:

"... In deciding whether a particular imputation is capable of being conveyed in the natural ordinary meaning of the words complained of, the question is whether it is reasonably so capable to the ordinary reasonable reader. The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it. However, any strained, or forced, or utterly unreasonable interpretation must be rejected.

The ordinary reasonable reader is a person of fair, average intelligence who is neither perverse nor morbid nor suspicious of mind nor avid of scandal. However, that person does not live in an ivory tower but can, and does, read between the lines in light of that person's general knowledge and the experience of worldly affairs. The ordinary reasonable reader considers the publication as a whole, and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning. That person has regard to the content of the publication..."

[20] The contextual imputation pleaded by the defendants is that "the Plaintiff has so acted as to warrant being charged by the police for allegedly committing a criminal offence".

[21] The plaintiff argues that the contextual imputation, whether literally or by inference, is not reasonably capable of being conveyed by the program to the ordinary viewer, but is instead strained, forced or unreasonable. For the plaintiff, it is submitted that:

• (a) The plaintiff is not named in the program, he is not visually shown in the program, and nor is there any act specified in the program as having been done by him - accordingly, an inference that the plaintiff "has so acted as to warrant being charged by the police for allegedly committing a criminal offence" is not open.
• (b) The program uses the words "Right now officers from Taskforce Take Back are busting this tattoo parlour". In the context of these words, the words "has so acted" necessarily fixes any alleged conduct by the plaintiff to the point in time at, or prior to, the alleged "busting". But the particulars of truth of the contextual imputation are matters occurring post-publication (that is, after the "busting). The plaintiff submits it is illogical to assert that one can be "busted" at a given point in time for doing something that is yet to occur.
• (c) Therefore, at the date of publication, and in light of the words "Right now [police] are busting this tattoo parlour", the plaintiff had not "so acted as to warrant being charged by the police", as the contextual imputation asserts. This is said to highlight the "want of concord" between the contextual imputation, the content of the program and the particulars.

[22] In determining this issue, whilst the plaintiff acknowledged the appropriateness of considering the whole of the publication, it was submitted that because neither the plaintiff, nor the tattoo parlour, are the subject of the entire segment of the program, it is more important to "focus on that bit that does relate to him".

[23] The defendants, on the other hand, urge the court to consider the whole of the segment.

[24] In so far as the first of the plaintiff's arguments is concerned, there is some circularity to the submission that the plaintiff is not named in, or depicted in the program, and accordingly no inference of the kind conveyed by the contextual imputation is open. For his own case against the defendants, the plaintiff relies upon being identified, by particular people, and members of the general public, as the manager of the tattoo parlour shown in the program. If that is the case, presumably the same logic applies to a consideration of whether the contextual imputation is conveyed. That approach would seem to me to be appropriate on an application of this kind.

[25] However, even assuming for present purposes that the plaintiff was so identifiable as the manager of the tattoo parlour which was "right now" being busted, I have difficulty in reaching the view that the ordinary reasonable reader would consider that the broadcast carried the imputation that "the plaintiff has so acted as to warrant being charged by the police for allegedly committing a criminal offence".

[26] In so far as the particular segment of the broadcast concerning the tattoo parlour is concerned, what is communicated is that:

• (a) this tattoo parlour is "one of many that will be investigated in this operation", the operation being Taskforce Take Back, which earlier in the broadcast is described as "a team of 60 officers cracking down on criminal bikie gangs and drug lords";
• (b) "[u]sing intel police believe some of these shops could be connected to criminal bikie gangs and if three or more bikies are caught inside these shops it's considered illegal";
• (c) "[t]attoo shop owners must have a special registration to prove they're a legitimate business in Queensland";
• (d) "[o]n the Gold Coast a whopping 85 per cent of tattoo parlours have links to criminal bikie gangs"; and
• (e) "[c]ome July 1 police will be able to shut down businesses and strip licences from certain workers with any tie to gang members. In the firing line are builders, electricians, workplace health and safety officers, security guards, tow truck drivers, gym and tattoo parlour owners".

[27] Would the ordinary reasonable reader or viewer have understood the matter complained of to convey the defendant's contextual imputation - that the plaintiff, as the manager of the tattoo parlour, had so acted as to warrant being charged by the police for allegedly committing a criminal offence? I do not think so. It is certainly not conveyed by the literal meaning of the published matter; nor is it something which would be inferred by the ordinary reasonable reader. What is conveyed is that there are connections or links between tattoo parlours and criminal bikie gangs (generally) which are being investigated by police; that if three or more bikies are caught inside one of these shops, it's considered illegal; and the need for "special registration" for such shops. In my view, the contextual imputation (which attributes particular act(s) or conduct to the plaintiff, which is said to have led to a particular reaction from police, at a particular time) is a forced or strained meaning which is incapable of being conveyed by the natural and ordinary meaning of the words used.

[28] In my view, the same conclusion is reached, regardless of whether one considers the part of the broadcast particularly concerning the tattoo parlour (pp 9-10 of schedule A) or the entire broadcast more generally. As to the latter, the broadcast begins with the reporter saying:

"Police have taken us behind the scenes of Taskforce Take Back. Our cameras are front and centre as police raid the suburban family homes of celebrities and parents. One of them is a dad who lives in this unit complex behind me. Now I've been given unprecedented access to question the shocked people as they're being arrested. And as you're about to see in the story, police have given us dramatic footage from their very own personal cameras as they bust their way in and take these people out. Take a look" (p 5, schedule A)

[29] After an exchange seemingly in relation to the first example of the police "bust[ing] their way in" (pp 5-6), the reporter says (p 6):

"Wearing their own cameras, police take us behind the scenes of Taskforce Take Back, a team of 60 officers cracking down on criminal bikie gangs and drug lords. Here, they're about to raid the home of a Hell's Angels bikie associate..."

[30] There follow further details about that raid (pp 6-7). The program then turns to a different person, with the reporter saying:

"Caught just a few days later a 28 year old wannabe model." (p 7)

[31] The details of the interaction with the "wannabe model" proceeds from pp 7-8 and then, either in connection with that, or perhaps another raid, the reporter says (pp 8-9):

"Here these two women have arrived unaware their home is being raided. Are you embarrassed that you've been caught by police?

After an extensive search one is taken away and charged with possession of cannabis, cocaine, methamphetamine, LSD and ecstasy..."

[32] The story then shifts, to a description of the operation "starting with the Royal Pines incident between the Finks and the Hells Angels" (the segment set out at paragraph [2] above), and the reporter saying:

"That's when the taskforce formed, along with new anti-bikie laws giving tougher penalties for members and associates of criminal bikie gangs who commit crime" (p 9).

[33] After the segment on pp 8-9 concerning tattoo parlours, the broadcast shifts to another matter, with the reporter saying:

"Officers from Taskforce Take Back are doing a surprise visit at the Parole Office. It's here they'll do a comprehensive drug test on convicted criminals including bikies who are on parole to see if they're abiding by their conditions and, if they're not, well, they'll face more serious charges. Is there anything in the car, guys that you're worried about? No. Police in the taskforce also visit the homes of convicted criminals on parole..."

[34] Although the defendants submitted that in the context of the entire broadcast, the contextual imputation is capable of being conveyed to the ordinary reasonable reader, I do not accept that. Up until the segment on pp 8-9, concerning the tattoo parlour, the focus of attention is on individuals who are being "raided" or arrested: the "dad who lives in this unit complex" (on p 5); the "Hell's Angels bikie associate" (on p 6); the "wannabe model" (on p 7); the "two women [who] have arrived unaware their home is being raided" (on pp 8-9). In respect of those people, it would be fair to say the words in the broadcast convey the meaning that they have so acted as to warrant being charged by the police for allegedly committing a criminal offence. But the focus on pp 9-10 is on the connection or link of tattoo parlours (as well as other businesses) with "criminal bikie gangs"; that if three or more bikies are caught inside these shops it's considered illegal; the need for "special registration" for tattoo shop owners; and the ability of police, from July 1, to shut down businesses and strip licences from certain workers with any tie to gang members. In my view, it strains the language used in the broadcast to give it the meaning of the contextual imputation, in so far as it particularly concerns the plaintiff.

Contextual imputation does not constitute a general charge

[35] Even if I had concluded that the contextual imputation was capable of being conveyed by the broadcast, there is another basis on which, in my view, paragraph [8] of the defence ought to be struck out. That is because the contextual imputation is sought to be justified - as substantially true - on the basis of post-publication conduct, in circumstances where that is not permissible, as a matter of principle.

[36] The particulars of truth which the defendants plead identify the way in which the defendants propose to establish that the contextual imputation is a matter of substantial truth.[11] The facts, matters and circumstances to be relied upon to establish the truth of a proposed contextual imputation must bear a reasonable relationship both to the contextual imputation itself and to the published material relied on by the plaintiff.[12] What the contextual imputation suggests is conveyed by the broadcast is that particular acts or conduct on the part of the plaintiff (being such as to warrant him being charged by the police for allegedly committing a criminal offence) have occurred at the time of the publication. The particulars relied on make it clear that it is not proposed to establish the "substantial truth" of the contextual imputation by reference to anything that had occurred at the time of the publication itself; but only later on.

[37] As articulated by Hodgson, Tobias and McColl JJA in Habib v Nationwide News Pty Ltd [2010] NSWCA 34; (2010) 76 NSWLR 299 (Habib) at [313]:

"The general rule is that an imputation must be justified by reference to the facts in existence at the time of publication. However the general rule may be departed from in circumstances where an imputation amounts to a general charge against the character of the plaintiff: P Milmo and WVH Rogers, Gatley on Libel and Slander 11th ed (2008) Sweet & Maxwell at 319 [11.8]; see also Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735 at 737 per Hunt J; John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [9] per Spigelman CJ and at [79] per Hodgson JA."

[38] Their Honours explained that the permissible grounds for departure from the general rule were established in cases involving Mr Maisel, who sued the Financial Times for defamation, alleging that an article it published setting out the circumstances of his arrest on a charge of fraud conveyed the imputation that "he was a man of dishonest character and unfit to be a director".[13]

[39] The relevant decision is Maisel v Financial Times Ltd [1915] 3 KB 336 (Maisel), of which Hunt J in Hansen v The Border Morning Mail Pty Ltd (1988) Aust Torts Reports 80-188 (Hansen) said (at 67,781):

"The Court of Appeal in that case was concerned with a claim which had been amended considerably since it had been considered earlier by the House of Lords in the better known decision from that case, reported at (1915) 112 LT 953. The relevance of subsequent facts to a defence of justification was directly in issue. One of the imputations pleaded by the plaintiff was in these terms (at 337): "That [the plaintiff's] character and reputation were such that he was likely to have misappropriated funds of companies with which he was connected". The Court of Appeal held (at 339-340, 341, 343) that acts which took place after the publication of the matter complained of could arguably be relevant in that case. Pickford LJ said (at 340) that no direct answer could be given as to whether subsequent facts would be relevant in every case to justify a libel. It depended, his Lordship said, upon the nature of the (imputation conveyed by the) libel and upon the nature of the acts relied upon to establish its truth. That seems to me, with respect, to be eminently good sound common sense".

[40] In Hansen Hunt J was concerned with an application, during trial, by the defendant to amend its defence to add a further contextual imputation, and the related question of the admissibility of evidence of conduct post-publication to prove the truth of that imputation. The proposed new imputation was "the plaintiff is a person who is likely to use threats and violence in the course of his business as a drug dealer". That was said to be similar to, but not the same as, the existing contextual imputation which alleged that the plaintiff did in fact use threats and violence in the course of his business as a drug dealer. As Hunt J said (at p 67,780) "[t]he difference between the two contextual imputations is that this new imputation raises an issue of truth as to the plaintiff's character or disposition". After referring to Maisel Hunt J said (at p 67,782):

"... provided that it is open to the jury in the present case to conclude from the subsequent facts upon which the defendant proposes to rely that the plaintiff was at the time of the publication of the matter complained of a person likely to use threats and violence in his drug business, those facts must be admissible despite the circumstance that they did not come into existence until after that publication. Just as in Maisel's Case (at 339), the contextual imputation which the defendant here seeks to plead relates to the plaintiff's general character and general tendency as at the date of publication. Acts within a reasonable period thereafter would normally be logically probative of that general character tendency."

[41] His Honour said he accepted that the subsequent facts would not have been admissible in relation to the existing imputation (that the plaintiff did in fact use threats and violence in the course of his business as a drug dealer), because that "does not raise an issue as to the defendant's character in the same way that" the proposed new imputation does.

[42] A further statement of the relevant principles comes from the decision of Levine J in Assaf v Skalkos[14] where his Honour said, at 3:

"The facts, matters and circumstances on which the defendants rely must be capable, upon proof, of establishing directly, or by rational inference from them, the act or condition or conduct specified in the imputations. There must be a qualitative proximity to the charge laid in the imputation and the particulars must be of matters that have a temporal proximity."

[43] In State of New South Wales v Deren [1999] NSWCA 22; (1999) Aust Torts Reports 81-502, the Court of Appeal held that a contextual imputation (that Mr Deren was a child molester) should have been left to the jury (the imputation relied upon by Mr Deren being that "the plaintiffs [Mr Deren and his wife] participated in sexual assaults on young children attending a Sydney kindergarten"), and that evidence of Mr Deren's guilty plea to sexual assault charges in 1972, as well as evidence of a complaint of sexual misconduct by him from 1973 (both pre-publication), evidence of what he told police at the time of publication, and evidence of what he had said in an interview with Derryn Hinch about a year post-publication, could be relied upon to prove the truth of that contextual imputation.[15] Priestley JA at [96] articulated the relevant "rule", having referred to Pickford LJ in Maisel at 342, as follows:

"... it is open to a judge to rule that evidence of an act or acts by a plaintiff could not rationally enable a conclusion of fact to be drawn and therefore should not as a matter of law be allowed to go before a jury considering that issue of fact when the time between the act or acts the defendant wished to rely on and the defamation was such that there was no relation between that act or acts and the imputation the defendant was seeking to justify."

[44] The Court of Appeal found that the evidence the State (the defendant) sought to rely on did raise a question for the jury whether the second plaintiff was a child molester.

[45] At [78], Priestley JA distinguished the contextual imputation, and Mr Deren's imputation, as follows:

"The plaintiff's imputation (a) understood as, in my opinion the jury must have understood it, and were entitled to understand it, directly accused Mr Deren of particular sexual assaults on particular young children coming from a particular location during a particular time. The accusation is one of particular crimes. The State's imputation (i) accused the second plaintiff, in my opinion, of being a person one of whose characteristics was to molest children in ways not specified but harmful. The accusation was one of the second plaintiff's having a persistent characteristic which if generally known would be harmful to his reputation."[16]

[46] In Habib, the Court observed (at [322]) that:

"The question whether an imputation amounts to a general charge against the character of a plaintiff is one to be approached with care. Many, if not all, defamatory imputations will cast some adverse light on a plaintiff's character. If too ready a conclusion was drawn that an imputation fell into the Maisel category, then the court might unduly open up avenues for defences of justification and contextual truth which would otherwise be barred to a defendant - and prolong the hearing of defamation cases."

[47] Their Honours also referred (at [326]) to the observation by Priestley JA in State of New South Wales v Deren (at [92]) that "each case depends very much on its own facts because the question whether a particular charge of wrongdoing carries a general charge may depend on the context in which the words are used" and (at [327]) to the additional proposition that the question may also turn on "the gravity of the misconduct imputed in the particular charge".[17] As to the latter, the example given was a case in which the article complained of referred to an act of dishonesty, which was not suggested to be anything other than an isolated act of dishonesty. On appeal, the newspaper challenged the jury's verdict that the matter complained of conveyed the imputation that "the plaintiff is dishonest" as perverse, submitting that a publication which talks about a specific incident is incapable of supporting an imputation of general application. However, the Court of Appeal found that what was suggested was "a most serious act of dishonesty" and said:

"While a person can do a dishonest thing without being thought a dishonest person, some things are so dishonest that one can infer that only a dishonest person would do them. The activities attributed to the plaintiff in the article are so extensive, serious and risky that it is open to ordinary reasonable readers to infer that only a dishonest person would have done them."

[48] In Habib itself, the defamatory imputation relied upon by Mr Habib was said to be contained in a newspaper article published in February 2005, that he had "knowingly made some false claims" to the Australian public when appearing on the current affairs program 60 Minutes (about his torture in the context of being detained following the events of 11 September 2001). The newspaper sought to rely on statements Mr Habib had made in interviews both before and after the publication, in support of its defence of substantial truth. One of those interviews took place in March 2006. The Court of Appeal found that:

"[332] ... in the context of the matter complained of, the imputation conveyed that the appellant was a person who was given to making 'some false claims' knowingly - thus imputing a propensity to him, indicative of his character generally - rather than being confined to any specific incident.

[333] In those circumstances Maisel applied and it was open to the respondent to seek to justify the imputation by reference to post-publication conduct as long as there was a sufficient temporal proximity between publication and the post-publication act sought to be relied on.

[334] The Amnesty International [March 2006] interview was not, in our view, too remote from the publication of the imputation. The part of that interview on which the respondent [newspaper] relied was not, in fact, a new 'claim' (assuming for present purposes it was a 'claim'). Rather, it was a statement in which the appellant repeated to the interviewer what he asserted he had said when interviewed in Pakistan concerning whether or not he had been in Egypt since being in Australia. Thus the statement had been made on a previous occasion, and was a fact which existed at the time of publication of the matter complained of. Further, it clearly had a qualitative proximity to the sting of the imputation and, if it matters, was rationally connected to the matter complained of as it concerned what the appellant asserted had taken place while he was in detention."

[49] In this case, the contextual imputation sought to be relied upon by the defendants - that "the plaintiff has so acted as to warrant being charged by the police for allegedly committing a criminal offence" - does not, in my view, amount to a general charge against the character of the plaintiff. Of course, such an imputation casts some adverse light on the plaintiff's character, in the sense adverted to by the Court of Appeal in Habib at [322]. But the allegation is specific, both as to time ("has so acted", meaning has so acted at the time of the broadcast) and event ("as to warrant being charged... for allegedly committing a criminal offence"). It is not a general allegation concerning the general character or general tendency of the plaintiff. In addition, it is not possible to infer, from that general statement, that the relevant "act" or "acts" are so serious as to justify a conclusion that only a person of a particular (unspecified) character or tendency would act in that way.

[50] It follows that, in my view, Maisel does not apply, and it is not open to the defendants to rely on the post-publication conduct particularised, to establish the substantial truth of the imputation.

[51] For these reasons, paragraph [8] of the defence, and the particulars, ought to be struck out.

[52] On the basis of the conclusions already reached, it is unnecessary to address the remaining arguments on the behalf of the plaintiff. However, for completeness, I note that had I formed a different view as to the matters addressed above:

• (a) I would have accepted the defendant's submission that the contextual imputation is one "in addition to" the defamatory imputations of which the plaintiff complains, on the basis of the recent analysis of this requirement in Fairfax Media Publications v Zeccola [2015] NSWCA 329 at [70]- [74] (per McColl JA, Macfarlan JA and Sackville AJA agreeing), on the basis that the contextual imputation differs in substance from the defamatory imputations pleaded by the plaintiff; and
• (b) in so far as the plaintiff challenged the form of the contextual imputation:
  • (i) whilst I accept that it would have been appropriate to require further particularisation of the contextual imputation, on the basis that the particulars at present refer only to the fact of charging - not to the acts of the plaintiff which are said to have warranted him being charged;[18]
  • (ii) otherwise, it would seem that the form of words used is, in itself unobjectionable.[19]

Application to strike out the plea in mitigation

[53] The general rule is that evidence of general bad reputation is admissible in mitigation of damages, but that evidence of particular acts of misconduct on the part of the plaintiff tending to show his character and disposition is not.[20]

[54] The plaintiff, in his submissions, identifies two exceptions to this rule: first, evidence of particular facts which are directly relevant to the contextual background in which a defamatory publication came to be made (referred to as the "Burstein"[21] basis); and, second, evidence of specific acts which is properly before the court on another issue, such as evidence placed before the court on a plea of justification (or, as here, contextual truth) that has failed.[22]

[55] In addition, the plaintiff relies upon the rule that evidence of general bad reputation must be confined to the sector of the plaintiff's reputation relevant to the alleged defamatory matter.[23] As explained by Ipp A-JA in Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430 (McBride) at [28] and [30], this rule means that the evidence, to be admissible, must be relevant to that part of the plaintiff's reputation capable of being harmed by the defamatory material. The example given in Gatley is that "[i]f the libel charges the claimant with treachery, evidence that he has a reputation for loose morals would be inadmissible in mitigation of damages".

[56] The plaintiff submits that, here, the relevant sector that is maligned by the program is his working life, "that is, the Plaintiff's reputation (both personal and business) as manager of a tattoo parlour that is a legitimate business". It is said the relevant sector is "not the Plaintiff's life as a law abiding citizen generally and more particularly, as one who does not deal drugs or consort with 'bikies'".

[57] In so far as that argument is concerned, I do not accept the plaintiff's submission. In my view, evidence that the plaintiff has been charged with offences of supplying dangerous drugs could be said to be relevant to that part of the plaintiff's reputation capable of being harmed by the allegedly defamatory material. The imputations pleaded are not of some other basis for being unfit to manage the tattoo parlour, but on the basis of links or connections with criminal behaviour of bikie gangs, and the commission of criminal offences.

[58] However, more generally, as to the Burstein exception, it does not seem to me that the evidence, of the plaintiff having a warrant executed at his home in January 2015, and subsequently being charged with supplying a dangerous drug on occasions between July and November 2014 can properly be described as part of the relevant background facts which explain the context in which the allegedly defamatory publication came to be made, in February 2014.

[59] As a consequence of my conclusion above, regarding the contextual truth defence, that material is not otherwise before the Court on another issue.

[60] So what I am left to consider is whether there is any other basis on which evidence of the plaintiff's alleged post-publication conduct can be admissible in mitigation of any damages.[24]

[61] In Gatley at [33.34] it is said the evidence must be confined to the general bad character of the claimant before, or at the time of, the publication; and that evidence of bad character after that time is not admissible in mitigation of damages. However, in footnotes to this paragraph, there are references to two Australian authorities which the authors suggest express doubt about the continuing application of this rule.[25]

[62] There is authority for the proposition that evidence of relevant post-publication convictions is admissible in mitigation of damages.[26] In this regard, in Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 at [338]- [342], Gillard J said:

"338 In my opinion, to exclude evidence of relevant convictions, which affect the reputation of the plaintiff, prior to the assessment of damages, is to deprive the tribunal of fact of a material matter relevant to the vindication of the plaintiff's reputation. In my view, it is logical to extend what was said in Goody's case to pre-trial convictions, and to do otherwise would fail to take into account one of the objects of damages, which is to restore the plaintiff's reputation in the eyes of those who know him and the public generally.

1. This happens at the time judgment is delivered, and it seems incongruous to award substantial damages to a plaintiff whose reputation, by reason of the commission of a relatively serious offence, has been destroyed prior to the judgment being pronounced. The Court is telling the world the plaintiff has a good reputation at the date of judgment, yet the truth is that he has no reputation. Such a result defies logic and common sense, and brings the law into contempt.
2. In my opinion, the conviction leaves untouched the other aspect of damages, namely, the hurt caused by the defamatory words, although in certain circumstances, the conviction would also be relevant to that part of the damages.
3. Mr Sonneveld, some 12 months after the defamatory publication was made, committed two serious offences, the circumstances of which, when known to others, would result in him being despised and held in contempt. What reputation he had would be destroyed in the estimation of right thinking people. He then issued his claim for damages. How can his reputation be vindicated in those circumstances?
4. In my opinion, the evidence of the two convictions is relevant to the assessment of damages."

[63] In McBride Ipp A-JA said at [75] he would be inclined to following the reasoning of Gillard J (although because of his Honour's conclusion that the reputation particulars did not relate to the same sector of the plaintiff's reputation as the subject of the defamation claim, and in light of the Court of Appeal's earlier decision in Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16, said he considered a final decision on the point should be left for another day). In Rochfort (at 23) it had been held that only convictions prior to the publication of the defamatory material are admissible; on the basis that what is relevant is the plaintiff's reputation at the time of the publication.[27]

[64] However, in Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 (Channel Seven) the New South Wales Court of Appeal (McColl JA, with whom Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in EQ agreed) approved the analysis of Ipp A-JA in McBride, leading to his Honour's conclusion at [75] and expressly overruled Rochfort (at [256]).

[65] The basis on which this conclusion was reached is the principle that damages for defamation continue to be incurred after the publication of the defamatory material;[28] and accordingly, evidence referring to a change in the reputation of the plaintiff after the publication date is relevant.[29] As McColl JA said in Channel Seven at [246]:

"... there appear to me to be sound reasons why, if there is relevant post-publication material which goes to a plaintiff's reputation, that evidence should be admissible to ensure that the damages awarded accurately reflect the plaintiff's reputation at the time the damages are awarded. ... In my opinion the admissibility of such material should not be confined to cases where, for example, the defendant has only partially established a defence of truth or comment. As long as its admission is carefully confined in the same sense as reputation evidence is now confined, such post-publication evidence should, in my view, be admitted. However, its admission should be approached with caution - the defendant should not be permitted to 'divert the course of the trial from the true issues': Prebble[30] at 525 per Cooke P."

[66] What Channel Seven also confirmed is that, as well as convictions, judicial findings in other or unrelated civil litigation made in open court (and therefore matters of public knowledge) may be admitted as evidence of bad reputation: Channel Seven at [254]; referring inter alia to Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [1402].

[67] In Channel Seven at [253] McColl JA identified two distinctions between convictions and judicial findings: the standard of proof required before the requisite conclusion is reached; and whether the findings are of an intermediate or ultimate nature. At [254], her Honour noted that, save as to the standard of proof, judicial findings otherwise stand on much the same footing as convictions: they take place in open court and can be regarded, accordingly, as matters of public knowledge.

[68] As already noted, each of Spigelman CJ, Beazley JA, McClellan CJ at CL and Bergin CJ in EQ agreed with McColl JA's judgment. Beazley JA also added a short comment in relation to the use of judicial findings, with which Spigelman CJ also agreed. Her Honour sounded a note of caution on the nature of the effect which may be given to judicial findings in a civil proceeding, particularly if they involve a demeanour-based credit finding.

[69] But what is clear, from both McColl JA's discussion of this matter at [249]-[254] and Beazley JA's additional comments at [3]-[10], is that the availability (or use) of a conviction, or judicial finding in a civil proceeding, as evidence of reputation, is dependent on (or because) in both cases they are matters in the public domain; having taken place in open court.

[70] What is sought to be relied upon here is not a conviction; but rather (unparticularised) conduct (or actions) on the part of the plaintiff, which it is said warranted the plaintiff being charged by the police for allegedly committing the criminal offence of supplying a dangerous drug.[31]

[71] It does not seem to me that evidence of that kind can properly be described as evidence of general bad reputation; as distinct from evidence of particular acts of misconduct on the part of the plaintiff. Neither the alleged act(s) on the part of the plaintiff, nor the alleged reaction of the police (in charging him) are matters in the public domain.

[72] Accordingly, in my view, paragraph [14] of the defence ought also be struck out, on the bases:

• (a) firstly, that it depends on the substantial truth of the contextual truth defence, which I have found ought to be struck out; and
• (b) secondly, that it relies upon post-publication acts or conduct, not amounting to evidence of general bad reputation, but rather particular acts of misconduct on the part of the plaintiff.

[73] Briefly, I will record that, there being no objection from the defendants, and having regard to the subject matter of the two interrogatories sought to be directed to the defendants, I am satisfied it is appropriate to grant the plaintiff leave to deliver the proposed interrogatories, pursuant to r 230(1) of the UCPR.

[74] I propose to make orders in terms of paragraphs 1, 2, 7, 8, 9 and 10 of the plaintiff's draft order handed up on 30 October 2015, subject to any further submissions from the parties as to the timing of orders 7, 8, 9 and 10.

[75] I will hear the parties as to costs.

[2] See also Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174 at [31]- [40] as to the background to the introduction of s 26 (of the New South Wales Defamation Act 2005, but which is reflected in the defamation legislation of all the states and territories).

[3] This proceeding was originally instituted in the Supreme Court, but transferred to this Court on 14 August 2015. An equivalent strike out application had been filed in the Supreme Court on 28 July 2015, but not heard prior to the transfer to this Court.

[4] Defamation Act 2005 s 21(1).

[5] Defamation Act 2005 s 22(2).

[6] Jones v Skelton [1964] NSWR 485 at 491; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 at [9].

[7] See also the discussion in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [132]- [138] per McColl JA (Bathurst CJ and Gleeson JA agreeing, at [1] and [191], respectively).

[8] Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at p 62,489.

[9] Defamation Act 2005 (NSW), which is in the same terms as s 22 of the Defamation Act 2005 (Qld).

[11] John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541 (Blake) at [2] per Spigelman CJ.

[12] Blake at [5] per Spigelman CJ (Rolfe A-JA agreeing); and Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [34] per Hodgson JA (McColl JA and McClellan AJA agreeing); also Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 at [42] per Emmett JA (McColl and Leeming JJA agreeing).

[14] Levine J, 15 December 1997, unreported [BC9707468]; referred to in Habib at [319].

[15] Priestley JA at [84], [85], [94]-[99]; Powell JA at [135] and Stein JA at [154] (agreeing in this respect with Priestley JA).

[16] In Habib at [325] reference was also made to an earlier decision of Hunt J, in the context of Mr Deren's defamation proceedings, in relation to an application by the Attorney-General for an injunction restraining the broadcast of a 60 Minutes program, on the basis that it would prejudice the defamation trial: Attorney-General (NSW) v TCN Channel Nine Pty Ltd (1990) A Def R [50,080]. In that case, Hunt J had commented that the imputations (then) relied on by Mr Deren were "expressed in general terms" - that he "engaged in the sexual abuse of young children" and that he "sexually abused young children" - and said that, provided proper particulars were given, the defendant would be entitled to lead evidence of sexual abuse by Mr Deren upon occasions other than those referred to in the matter complained of, referring, inter alia, to Maisel.

[17] From Gatley on Libel and Slander (11th ed) (at 323 [11.11]), referring to Nationwide News Pty Ltd v Warton [2002] NSWCA 377.

[18] See, for example, Lee v Fairfax Media Publications Pty Ltd (No 3) [2015] NSWDC 142 at [22].

[19] See, for example, Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 41-43, where Hunt J explains why it would be more appropriate to recast an imputation (that a person is suspected of having committed an offence, or has been charged with an offence) as one that "he so conducted himself as to have warranted suspicion of or belief in his guilt or the laying of a charge against him" - the latter focussing on "the precise act or condition which is asserted of or attributed to the plaintiff", as opposed to the former which focusses on the reaction of others to the plaintiff's conduct (see at 41E to G).

[20] Gatley on Libel and Slander, 12th ed (2013), Sweet & Maxwell (Gatley), at [33.30] and [33.32]; Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90; (2014) 86 NSWLR 96 (Holt) at [32] per Macfarlan JA.

[21] Burstein v Times Newspapers [2000] EWCA Civ 338; [2001] 1 WLR 579 at 592-593, 596 [35]; Holt at [32].

[22] Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99 at [191]- [192] per McColl JA and John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [48]- [51] per Handley JA.

[23] Gatley at [33.33]; Plato Films v Spiedel [1961] AC 1090 at 1140 per Lord Denning (the example given being "if the libel imputes theft, the relevant sector is his character for honesty, not his character as a motorist"); Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232 at [162]- [169] per McColl JA.

[24] See McBride at [14] per Ipp A-JA.

[25] Anderson v Ah Kit [2004] WASC 194 and McBride.

[26] Goody v Odhams Press Ltd [1966] 1 QB 333 at 340-341 (in relation to prior convictions); Middendorp Electric Co Pty Ltd v Sonneveld [2001] VSC 312 at [289] and [338]-[339] (applying Goody to post-publication (pre-trial) convictions).

[27] See also Channel Seven at [201]-[202].

[28] Channel Seven at [150]-[151], [219]-[220] and [236].

[30] Television New Zealand v Prebble [1993] 3 NZLR 513,

[31] In these reasons, I am putting to one side the additional reference to "unauthorised dealing of shop goods", as not affecting the conclusions I have otherwise reached.