Hague v Cordiner

Principles relevant to form and capacity findings

1. The relevant principles in relation to capacity of imputations are set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136], namely that the determination of capacity is "an issue of generosity and not of parsimony", and that the imputation is a "matter of impression ... the impression is not of what the words mean but of what a jury could sensibly think they meant" (citing Berezovsky v Forbes [2001] EWCA Civ 1251 at [16]).
2. The role of context may be important; for example, where a radio or television broadcast is involved, or a sensational publication, the "degree of analytical care" (Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [34]) may be considerably less.
3. The central issue for consideration is that the plaintiff pleads imputations of both guilt and suspicion, in terms of the explanation of this issue by the High Court of Australia in Mirror Newspapers Ltd v Harrison (1982) 56 ALJR 808; 42 ALR 487, as explained in Sergi v Australian Broadcasting Corporation (1983) 2 NSWLR 669 at 676 - 677. More recently, imputations of guilt and suspicion have been referred to as "Chase level 1" and "Chase level 2" imputations (Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 ; [2003] EMLR 11 ("Chase") at [45]; see R Parkes QC, Professor A Mullis, G Busuttil, A Speker, A Scott, C Strong, Gatley On Libel and Slander (12th ed, 2013, Sweet & Maxwell) at [11.13].
4. The determination of whether the "Chase level 1" imputation(s) of guilt, or alternatively a "Chase level 2" imputation(s) of reasonable grounds for suspicion, accurately reflect the sting of the libel at the capacity stage is explained in Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 at [32]. I note that, in Corby v Allen & Unwin Pty Ltd, the Court considered that certain imputations of guilt were conveyed and that the first instance judge erred in failing to so find. The "Chase" method of analysis has been applied across Australia at both interlocutory and trial level; see Rayney v State of Western Australia (No 9) [2017] WASC 367 at [60]-[64] and in Sands v State of South Australia (2015) 122 SASR 195 at [238].

Guilt, or suspicion of guilt?

1. The challenge to capacity is restricted to the issue of whether imputations of suspicion or guilt are conveyed.
2. As Lord Devlin explained in Lewis v Daily Telegraph Ltd (1964) AC 234 at 277, whereas, for a lawyer, an imputation as to guilt may not be as readily drawn, ordinary readers draw implications much more freely, especially when the text of the matter complained of is derogatory in nature. In Favell v Queensland Newspapers Pty Ltd at [11], the High Court added that Lord Devlin's observations on this issue were "an important reminder for judges". It is the broad impression conveyed by the libel that has to be considered, not the meaning of each word under analysis, as the High Court noted, citing the following observations by Lord Devlin in Lewis v Daily Telegraph Ltd at 285: "A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded."
3. This is not a case where there is a mere statement that the person in question has been charged or is under investigation. A clear picture is painted of the plaintiff being "snagged", his equipment seized using legislation designed for serious criminals, and, most importantly, there is the defendant's ringing endorsement of the actions of the investigating officers who took these steps ("Well done Australian Border Force.").
4. Adopting the test set down in Favell v Queensland Newspapers Pty Ltd as endorsed by Corby v Allen & Unwin Pty Ltd, a clear picture is painted of the plaintiff not merely being "snagged", but justifiably so.
5. This challenge to "guilt" was put in a generalised fashion to all imputations. Mr Goldsmith conceded that imputations of reasonable suspicion were reasonably capable of being conveyed. He did not bring any challenge based on the apparent alternative uses for this legislation (ranging from paedophilia to terrorism), but conceded that each was capable of arising, albeit in terms of suspicion only. I propose therefore to make the same ruling as to the capacity of each of these imputations.
6. However, both imputations cannot be pleaded at the same time. These are generally pleaded in a "fall-back" style, with the most serious being pleaded first. Although Mr Goldsmith did not raise this objection, this pleading error was acknowledged by Mr Senior, and a requirement to replead them in this form is accordingly reflected in the orders that I have made.
7. Subject to the requirement for the imputations of reasonable suspicion being pleaded as fall-backs to the imputations of guilt, I am satisfied that each of the imputations of guilt pleaded by the plaintiff is reasonably capable of being conveyed.

Challenges to the form of the imputations

1. The relevant principles for the determination of objections to form are set out in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137A.
2. Mr Goldsmith raised objections to the words "captured" and "reasonably", although on closer examination the former was in fact an objection to capacity rather than language.
3. The pleading of "reasonably suspected" by the police has long been a standard formula used to express the holding of a suspicion (usually by a prosecuting authority) as expressed in the passive voice: see for example Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [3]. Mr Goldsmith's objection was that no ordinary reasonable reader would think in terms of such an imputation
4. However, this is a formula designed to convey a suspicion, which is the appropriate test to apply, rather than requiring imputations to be cast in simpler language: see the discussion of what is described as "police suspicion" in Sergi v Australian Broadcasting Corporation at 676 - 677 and how it may be framed in an imputation.
5. I am unaware of any prior challenge to the phrase "reasonably suspected" on this basis. In El-Mouelhy v QSociety of Australia Inc (No 3) [2015] NSWSC 1069 an objection was taken in relation to the need for the reasonable suspicion to be held by the relevant authority needing to be clarified (Sergi v Australian Broadcasting Corporation at 671 by Hutley JA), but that objection was ultimately not pressed, in light of Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 at [28]. In the present case, even this basis for challenge does not even arise.
6. There reason for this phrase, as a matter of form, is to encapsulate the concept of police suspicion, and the plaintiff is entitled to plead these imputations in the traditionally accepted "reasonable suspicion" format.
7. The objection to the word "captured" was made on the basis that the word "snagged" did not impute some form of physical restraint. I was referred to both print and online dictionaries by both parties. All of these clearly identify "snagged" as meaning "caught" in some physical fashion. I also not the reference to the plaintiff's equipment being seized, which is confirmatory of some form of physical restraint. In those circumstances, Mr Goldsmith's challenge to the word "captured" is without substance, either as a form or as a capacity issue.
8. Mr Goldsmith also made an application for the proceedings to be struck out because the particulars of publication did not include particulars of downloading.

The requirement for particulars of downloading

1. Where a publication is made online, proof of readership (generally in the form of downloading) is required: Jenman v McIntyre [2013] NSWSC 1100. This is of particular importance where there are a series of posts and where there is a challenge as to the manner or form of the publication as pleaded: Cronau v Nelson (No 2) [2018] NSWSC 1905.
2. However, that is not the case here, in that this is a simple free-standing post, where the tortuous route argued for by the plaintiff in Cronau v Nelson (No 2) has no application.
3. More importantly, it is also not the only way in which online publication may be proved. The circumstances in which the court may draw inferences of publication from sources other than evidence of downloading are examined in McDonald v Dods [2017] VSCA 129 at [30]-[61]; these may include the drawing of inferences as well as express evidence of downloading. The Court noted decisions in the United Kingdom (Sternberg v Pritchard Englefield (a firm) [2005] EWCA 288) and Australia (Duffy v Google Inc (No 1) [2015] SASC 170) to the effect that other factors, such as an eye-catching headline, may be sufficient for publication to be inferred.
4. In the present case, the matter complained of includes the information that three of the defendant's followers "liked" the post, which is sufficient to demonstrate publication to a third party: Bolton v Stoltenberg [2018] NSWSC 1518. As the Court of Appeal noted in McDonald v Dods at [57], courts take into account the degree to which members of the public use the internet (to which should be added the ubiquity of social media) and are prepared to conclude, where a person has affixed their avatar to such a post that they are likely to have read it. Particulars of identification of those persons can be obtained at a later stage through discovery and interrogatories, as these persons are "Facebook friends" of the defendant.
5. However, particulars to this effect must be included in the particulars of publication set out in the statement of claim. Mr Senior conceded that particulars in relation to the three avatars should be added. I have accordingly granted leave for this to be included in the amended statement of claim as well as the repleaded fall-back imputations.

Costs

1. The plaintiff was successful on all capacity issues other than the fall-back issue, which was not raised by the plaintiff, but conceded by the defendant in written submissions. Although the defendant successfully required further particularisation of downloading, I am satisfied that the plaintiff was successful on sufficient issues to warrant an order for costs being made in the plaintiff's favour.

Orders 1. Noting the only basis upon which imputations 6(a) to 6(c) is challenged is the use of the words "captured" and "reasonably", these imputations are reasonably capable of being conveyed. 2. Noting the basis of the challenge to imputations 6(d) to 6(k) is on a Chase 1/Chase 2 basis: 1. Each of imputations 6(d) to 6(k) is reasonably capable of being conveyed, but 2. The Chase 2 meaning is to be pleaded as fall-back to the Chase 1 meaning. 1. Plaintiff's amended statement of claim in 7 days. 2. Defendant's defence or an application for security for costs by 13 November 2019. 3. Matter listed for further directions only in the Defamation List on Thursday 14 November 2019. 4. Defendant pay plaintiff's costs in relation to the imputations argument of today.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 October 2019