Hanson-Young v Bauer Media Ltd

JUDGMENT - ex tempore 1HER HONOUR: This is an action for defamation commenced by Senator Hanson-Young against the proprietor of Zoo Weekly magazine. On 11 September 2013 I determined a series of objections taken by the defendant to the form of the pleading: see Hanson-Young v Bauer Media Limited [2013] NSWSC 1306. Pursuant to leave granted on that occasion, a further amended statement of claim was filed on 15 October 2013. The defendant has again objected to all of the imputations pleaded. This judgment determines those objections. 2Before turning to the terms of the new imputations, it is instructive to bring to mind some basic principles concerning the pleading of an action in defamation. The law of defamation is governed in this State by the Defamation Act 2005, which commenced on 1 January 2006. Prior to the commencement of that Act, the position was governed by the Defamation Act 1974. Section 9(2) of the 1974 Act provided that a person had a cause of action in respect of any defamatory imputation made by means of the publication of the matter complained of. The focus of the statute on the imputation as the cause of action (rather than the matter complained of) produced a large body of jurisprudence in this jurisdiction which was sometimes criticised as having generated a practice of excessive refinement in pleading (see for example the judgment of Kirby P in Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 at 149 which his Honour reiterated in a separate judgment in the decision of the High Court in Favell v Queensland Newspapers [2005] HCA 52 at [20] to [24]). 3The 2005 Act restored the position at common law that the matter complained of and not the imputation was the cause of action. Section 8 of the present Act provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person even if more than one defamatory imputation is conveyed. 4The clear specification of each defamatory imputation relied upon by a plaintiff nonetheless remains important. The requirement for clarity arises both as a consideration of fairness (in the conduct of pre-trial procedures and in the conduct of the trial itself) but also because the imputation is the specific focus of a number of the defences under the 2005 Act. For example, the defence of justification under s 25 of the Act provides that It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true (and see the defence of contextual truth in s 26 of the Act). 5For that reason, much of the jurisprudence in respect of the requirements of a plaintiff in specifying the defamatory imputations relied upon still has obvious application, notwithstanding the repeal of s 9 of the 1974 Act and the operation of s 8 of the 2005 Act. 6The ongoing importance of clear specification of the imputations is reflected in the rules. Whereas Part 67 Rule 11 of the Supreme Court Rules required the plaintiff to specify each imputation relied upon, that requirement remains in rule 14.30 of the Uniform Civil Procedure Rules. 7The importance under the 1974 Act of specifying the imputations allegedly conveyed by the matter complained of was considered in the well-worn decision of the Court of Appeal in particularly in the judgment of Gleeson CJ in Drummoyne at 136 to 137. In my view, his Honour's remarks remain relevant under the present regime. His Honour said: The Supreme Court Rules 1970, Pt 67, r 11, provide that in an action for defamation the statement of claim shall specify each imputation on which the plaintiff relies. Furthermore, ordinary principles of pleading, fairness to a defendant, and the need for clarity of issues at a trial, all require adequate specification by a plaintiff of the imputation or imputations sued upon. In Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 91, Griffith CJ observed that "impute" is an ordinary English word, and is properly used with reference to any act or condition asserted of or attributed to a person. His Honour went on to say that in the section of the Criminal Code Act 1899 (Qld) which he was considering the word "imputation" meant the matter (act or condition) imputed, and that if the act or condition imputed were such that the plaintiff's reputation was likely to be injured by it, or the plaintiff was likely to be injured in his profession or trade, the law called it defamatory. In Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1, a case concerning the Defamation Act 1958, Gibbs J said (at 10): "... To make an imputation concerning a person is to attribute some act or condition to him, or in other words, simply to make a statement concerning him." The requirement that a plaintiff must "specify" the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found inconsiderations of practical justice rather than philology. 8The task of specifying what the matter complained of imputes of the plaintiff in the present case is not without difficulty. The detail of the publication is set out in my earlier judgment. It may be seen that the matter complained of is plainly satirical. It is calculated to hold the Senator up to ridicule, but it is difficult to say precisely what it imputes concerning her. The amendment brought forward in the further amended statement of claim must be considered in that difficult context. 9Imputation 4A in the amended pleading is: that the plaintiff is not a serious politician. 10The defendant objected that, as with the previous imputation, "that the plaintiff is not a politician to be taken seriously", the imputation falls in the category of being a rhetorical exhortation which fails to attribute any particular condition to the plaintiff. 11Mr Richardson, who appears for the defendant, repeated his reliance in the earlier argument on the line of authority beginning with the decision of Levine J in Scali v John Fairfax Group Pty Limited (Supreme Court of New South Wales, Levine J, 15 April 1993, unreported) considered in my earlier judgment. 12I do not accept that the new version of the imputation suffers from the vice of the imputation it seeks to replace. We expect our politicians to be serious. To say of a politician that he or she is not a serious politician, in my view, does impute a condition to that politician. Further, in my view, it is an imputation which is capable of being carried by the matter complained of in the present case. I would allow that imputation to stand. 13Imputation 4B is more difficult. The imputation is: that the plaintiff is a joke. 14At first blush, the imputation may be seen to fall foul of the requirement for a clear and precise specification of an act or condition allegedly attributed to a person by defamatory matter. It is difficult to know precisely what the imputation means. However, the imputation must be considered in the context of the "ridicule" cases as to which I was addressed during argument. 15The line of authority carefully analysed in submissions by Ms Amato on behalf of the plaintiff begins with the decision of the Second Circuit Court of Appeals in Burton v Crowell Pub Co 82 F(2d) 154 (1936). I referred to that decision in my earlier judgment. It was a case in which a steeplechase jockey, who had consented to the taking of photographs of him after a race, subsequently brought an action for defamation when the photographs were used in advertisements plainly subjecting him to ridicule by reason of the absurdity of the particular photograph chosen for use in the advertisements (together with the language of the advertisements). The advertisement was described in the judgment as follows: The advertisement was of 'Camel' cigarettes; the plaintiff was a widely known gentleman steeple-chaser, and the text quoted him as declaring that 'Camel' cigarettes 'restored' him after 'a crowded business day'. Two photographs were inserted; the larger, a picture of the plaintiff in riding shorts and breeches, seated apparently outside a paddock with a cigarette in one hand and a cap and whip in the other. This contained the legend, "get a lift with a Camel'; neither it, nor the photograph, is charged as part of the libel, except as the legend may be read upon the other and offending photograph. That represented him coming from a race to be weighed in; he is carrying his saddle in front of him with his right hand under the pommel and his left under the cantle; the line of the seat is about twelve inches below his waist. Over the pommel hangs a stirrup; over the seat at his middle a white girth falls loosely in such a way that it seems attached to the plaintiff and not to the saddle. So regarded, the photograph becomes grotesque, monstrous, and obscene; and the legends, which without undue violence can be made to match, reinforce the ribald interpretation. That is the libel. 16The Court held that, because the advertisement was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie actionable. The fact that it did not "assume to state a fact or an opinion" was irrelevant. It may be inferred from a careful reading of the judgment that the decision was reached in a context other than that which obtained in New South Wales under the 1974 Defamation Act, where the cause of action was constituted in the imputation itself. 17Burton v Crowell was applied by Hunt J in Ettinghausen v Australian Consolidated Press (1991) 23 NSWLR 443, also a decision concerned with the actual or imputed display of a man's penis. The imputation which Hunt J approved on a capacity basis in that decision was: that the plaintiff is a person whose genitals have been exposed to the readers of the defendant's magazine HQ, a publication with widespread readership. 18That imputation went to trial as an alternative to imputations conveying (broadly) the meaning that Mr Ettinghausen had consented to have his penis exposed to readers of the magazine. As it happened, the jury evidently accepted the first imputation and so never came to consider the alternative imputation set out above. Accordingly, there is no appellate consideration of that imputation in this jurisdiction. 19However, in McDonald v The North Queensland Newspaper Company Limited [1997] 1 Qd R 62, a third action alleging ridicule due to the public display of a man's penis, the Court of Appeal in Queensland approved the line of authority established by Burton v Crowell as applied in Ettinghausen that a publication which exposes a person to bare ridicule is defamatory. In McDonald the Court said: Our initial reaction to Hunt J's imputation(b) was unfavourable. The imputation concerning the respondent which the photographs seem to us to make is that his penis was, or became, exposed, while playing football. Hunt J.'s conclusion in respect of imputation (b) in Ettingshausen at 449 is more readily understood if reference is made back to an earlier statement at 447; namely: "The condition of the plaintiff which imputation (b) expresses is simply that, as a result of the exposure of his genitals, he has been held up (or exposed) to ridicule". His Honour then went on to state that imputation (b) "relies upon the oft quoted statement of principle expressed by Parke B., in Parmiter v. Coupland (1840) 6 M. & W. 105 at 108, 151 E.R. 340 at 342". Baron Parke's statement cannot readily be literally applied to the present circumstances, but the relevant principle stated there can be applied; that is, a publication which exposes another to ridicule is defamatory. In our opinion, that is the effect, briefly stated, of the Queensland Act; and material published concerning a person which exposes him to ridicule must make an imputation concerning him as the basis for that ridicule. 20It may be observed, perhaps uncontroversially, that the bare display of a man's anatomy does not in itself impute to him any defamatory act or condition. If publications such as those in the authorities considered above are actionable, it is by reason of their tendency to expose a person to ridicule, which is regarded as a species of damage to reputation. Those authorities establish that, at least at common law and (in the case of McDonald) under the relevant Queensland legislation, it is enough to sustain an action in defamation that a satirical piece holds the plaintiff up to more than a trivial measure of ridicule, even where no defamatory act or condition is attributed to the plaintiff by the publication. Plainly, there is a measure of tension between that principle and the requirement of the rules that the plaintiff specify the defamatory imputations relied upon which, as I have said, has its foundation in considerations of fairness as well as in the existence of defences directed to the imputations, not the matter complained of. 21The position is complicated by the existence of the defence under s 25 of the Defamation Act 2005 which now provides, without any requirement of a public interest element, that it is a defence to the publication of a defamatory imputation if the defendant establishes that the imputation is substantially true. Plainly, an imputation of the Ettinghausen kind could be defended on that basis in the present case. The defendant would simply have to tender the matter complained of to prove that the plaintiff was a person who had been depicted in a men's magazine with her face photo-shopped onto the body of a bikini-clad model in provocative pose. Assuming that condition to be defamatory (as to which I express no view), it would immediately have been proved to be substantially true. 22It is presumably for that reason that the plaintiff has resorted to imputation 4B, "that the plaintiff is a joke", endeavouring to distil the principles established by the series of ridicule cases to which I have referred. 23It is arguable that, even in this jurisdiction (with the rules as they are and with the necessary focus on the form of the imputation, at least for the purpose of the statutory truth defences), the requirement to specify the defamatory imputation could properly be dispensed with in a pure ridicule case, but that is an untested proposition and one as to which I have not specifically called on the defendant. 24The conclusion to which I am led is that, in the extremely unusual circumstances of the present case, imputation 4B, notwithstanding its difficulties, should not be struck out at this stage. In so holding, I do not mean to determine that it is an imputation which has the clarity of meaning ordinarily required of a defamatory imputation in a defamation action; rather, the conclusion I have reached is that this is a case which sharply brings into focus, perhaps for the first time, the difficulty of pleading a pure ridicule imputation in a jurisdiction where there is a requirement under the rules to specify the act or condition allegedly imputed by the matter complained of and where that act or condition plays an important role in the conduct of the defences, but in the context of the common law line of authority to which I have referred. 25In the unique circumstances of this case, I think it is an issue which should be left to be determined at trial. I do not think it is appropriate to strike out that part of the pleading at this stage. Rather, I think it should be left to full argument at the hearing of the proceedings. To the extent that the imputation may be of unclear meaning, the defendant has had the benefit of carefully reasoned argument by Ms Amato on behalf of the plaintiff to explain the way it is put. That is, it seeks to invoke the ridicule line of authority. 26Imputation 4C is: that being a sex object is the only thing the plaintiff is good for. 27The defendant submitted that the imputation is imprecise or incapable of arising. Specifically, it was submitted that the ordinary reasonable reader would take the article to be facetious and would note that there was plainly no consent to or participation by the plaintiff in the provocative pose in which she is depicted. In my view, the meaning of the imputation is clear. Whether or not the plaintiff consented to being sexually objectified in the way she is capable of being understood to have been in the article is not to the point. What the plaintiff has done is to distil the meaning which her representation in that pose is capable of conveying to the ordinary reasonable reader. I do not think the imputation is objectionable on that account. 28As to capacity, having regard to what I might colloquially call the fast and loose nature of the publication, I do not think the defendant can be heard to say that the matter is not capable of conveying an imputation of sexual objectification. The article purports to reduce all that the Senator stands for to a form of entertainment for men. 29Finally, imputation 4D is: that the plaintiff, by reason of her pro asylum-seeker stance, has justifiably exposed herself to the ridicule of the defendant. 30Mr Richardson submitted that the inclusion of the word "justifiably" was calculated to defeat the hurdle for the plaintiff of the defendant's being able to plead a truth defence to a pure ridicule imputation of the kind approved in Ettinghausen. That point was made not by way of complaint but simply to note the way in which the imputation was structured. 31The imputation follows the form approved in the decision of Levine J in Kelly v John Fairfax Publications [2003] NSWSC 586. That was a case in which a photograph of a man in bondage lying over a piano in Hyde Park was published in a newspaper. Unfortunately for the newspaper, they named the wrong person as the man depicted in the photograph. It was in that circumstance that Levine J allowed an imputation that the plaintiff (of whom the newspaper had conveyed the imputation that he had consented to be photographed in that pose) justifiably exposed himself to ridicule. 32Mr Richardson submitted that the same cannot be said in the present case since, as was agreed by the parties, any reader of the matter complained of would see at a glance that the depiction of Senator Hanson-Young had been photo-shopped with the replacement of a model's body for the Senator's own body. With great respect to Mr Richardson that, in my view, misses the point. The ridicule arises not from the depiction of the plaintiff in lingerie or a bikini but rather from the representation (by the words accompanying the photograph) that the reason the Senator has been invited by a men's magazine of the likes of Zoo Weekly to participate in a lingerie photo-shoot is, as it is put in the matter complained of, to "break the deadlock" over competing views as to Australia's political stance on asylum seekers. 33In my view, the matter complained of is reasonably capable of conveying the meaning that, by reason of the senator's pro asylum-seeker stance, she has justifiably exposed herself to the ridicule to which she is capable of being held to have been subjected in the article. 34For those reasons I reject the defendant's application to strike out each of the imputations.