-reached or equalled by the sting of the contextual
imputation. The defendant may contend that the pleaded
imputations more
serious than the contextual imputations do
not arise leaving only lesser imputations that are then
equalled or over-reached
by the contextual imputations.
Justification of the contextual imputations could then be a
defence.
As Murphy J pointed
out in Kelly (supra) at p74, a defendant
who seeks by amendment to raise such a plea must satisfy the
court that the proposed
amendment is not demurrable.
It is, therefore, necessary to enquire whether the meaning
contended for by the defendant is capable
of being conveyed
by the matter complained of and, if so, whether that meaning
is defamatory. A further question will then
arise as to
whether it is capable of over-reaching or equalling the
defamatory sting of those imputations which are found to,
or
are conceded to, arise from the matter complained of. If it
does not, the existence of a contextual imputation not
relied
on by the plaintiff with a lesser `sting' may go to
damages but will provide no defence."
16. I respectfully differ from Higgins
J as to the effect of the decision in
Polly Peck, if what His Honour there said is to be taken literally; in
particular, I am unable
to find anything in the judgment of O'Connor LJ which
is similar to the second sentence of the passage I have quoted above. The
nub
of the decision in Polly Peck is the need for a common sting to be found in
the several defamatory allegations in their context
which are then to be
treated as no longer separate and distinct allegations. That is quite a
different thing from another substantially
different imputation but equally
damaging imputation, (which is the process envisaged by s16 of the N.S.W. Act)
where no common sting
is required at all.
17. It is clear also, from my reading of the judgment in that case, that
Higgins J did not consider that the
common sting defence and the defence of
contextual truth established by s16 of the N.S.W. Act were to all intents and
purposes identical.
18. In Woodger, Miles CJ was unable to see any difference in principle
between the defence of contextual truth in New South Wales
and the principles
that lie behind Polly Peck (see 107 ACTR at 23) and thought Higgins J to be of
the same opinion. I have tried
to demonstrate those differences in legal
theory, but there are also considerable practical differences, not the least
of which is
that because contextual truth enables the defendant to prove the
truth of a severable assertion of which the plaintiff does not complain,
longer (and more expensive) litigation is the inevitable result. As Miles CJ
himself recognized, this defence is
"capable of
converting a modest and narrow claim by a
plaintiff into a wide-ranging expansive and expensive
inquiry, the limits of which
are set by the defendant's
capacity to pay for it." (p21).
19. Given that the defendants most likely to be sued have deeper pockets
than
most plaintiffs are likely to have, I would question the justice of
introducing via the "development" of the common law that
which parliament has
so far not sought fit to introduce in this Territory despite recent
legislative attention to the Defamation
Act (NT), and despite the fact that
the so-called defence of contextual truth has been legislated for in a number
of other jurisdictions.
20. The other reasons mentioned by Miles CJ as justifying the development of
the defence of "contextual truth" in the ACT. have
no parallel in this
Territory. In Woodgar, at 23, Miles CJ referred to "English rules of practice
which inhibit a defendant pleading
or calling evidence on the truth of the
publication which do not apply in the Australian Capital Territory" and that
because of this
he was unable to see any objection to the defendant raising
the same matters that are permitted to be raised in N.S.W. by s16 of
the
Defamation Act. Apparently in the ACT., where truth alone is not a defence
unless public benefit is also established, a defendant
may plead truth in
mitigation of damages, (despite it would appear, the judgment of the N.S.W.
Court of Appeal to the contrary in
Cohen v Mirror Newspaper Ltd (1971) 1 NSWLR
623 at 629, 636): see Woodger, at p21. In the Northern Territory, no such
considerations arise: truth may be pleaded either as a partial
defence going
to damages (a situation which arises where the defendant seeks to justify
some, but not all, of a number of separate
and distinct defamatory
imputations) or as a complete defence. In no common law jurisdiction of which
I am aware may a defendant
plead to an imputation that it is true unless he
also asserts that it is true in substance and in fact (which encompasses the
idea
that the sting of the libel is true). The defendant cannot plead that a
particular imputation is partly true.
21. Be that as it
may, I do not consider that it is appropriate to develop
the common law, which is supposed to be uniform throughout Australia, by
reference to legislative changes or matters of practice and procedure, where
those changes or matters are of a purely local character.
22. Finally, so far as "contextual truth" is concerned, none of the leading
Australian text book writers suggest that it is a defence
at common law: see
for example Fleming, Law of Torts, 8th Edition, p555; Balkin and Davis, Law of
Torts, p583-4.
23. Accordingly
the pleas contained in paragraph 9 of the defences are bad in
law and are struck out.
COMMON STING
24. The defendants conceded that
the common meanings pleaded in paragraph 11,
of the defences, as presently framed, did not, and could not on any view of
the facts,
meet the sting of the defamatory allegations contained in the
broadcasts. Accordingly they sought to amend paragraph 11 to raise
a further
common meaning which did, or at least arguably could, meet the sting of the
defamatory allegations. Mr Reeves did not
dispute that the further common
meanings arguably could meet the sting of the defamatory allegations.
Accordingly, I consider that
the defendants should be permitted to amend
paragraph 11 of the defences to raise the new common meaning, but that so much
of paragraph
11 as originally pleaded other common meanings should be struck
out. Further, the plea of justification to that common meaning was
poorly
drafted, and I indicated that paragraph 11 of the pleadings should be further
amended so as to properly raise that plea.
JUSTIFICATION
25. Mr Reeves submitted that there was no evidence fit to go to the jury to
support the pleas of justification in relation to paragraphs
6(a) and 6(e) of
the Statement of Claim. The imputation pleaded in paragraph 6(a) is that the
plaintiff was corrupt: the imputation
in paragraph 6(e) is that the plaintiff
was dishonest.
26. Mr Lynch submitted that there was evidence fit to go to the jury for
two
reasons. First, both paragraphs 6(a) and 6(e) were inferences to be drawn
from certain incidents referred to in the broadcast
the truth of which
incidents the defendants had sought to justify. Secondly, Mr Lynch submitted
that the incidents referred to in
the broadcast, if true, demonstrated that
the plaintiff was a hypocrite, and it was open to the jury to find that this
was a form
of dishonesty. Thirdly, Mr Lynch submitted that the imputations
which the plaintiff alleged in paragraph 6(c) and 6(d) and which
the
defendants had sought to justify, viz., that the plaintiff had conspired to
arrest the first defendant on false charges, and
had conspired to pervert the
course of justice, arguably demonstrated that the plaintiff was corrupt in the
sense of lacking in integrity.
Mr Lynch submitted that it was for the jury to
decide the sense in which the plaintiff established the imputations pleaded in
paragraphs
6(a) and 6(e) (if at all), and that it was open to the jury to find
that the sense in which the plaintiff was corrupt and dishonest
was in the
senses of lacking in integrity and in his being a hypocrite.
27. Mr Reeves submitted that the plaintiff relies upon other
matters in the
broadcast to support paragraphs 6(a) and 6(e) which the defendants had not
sought to justify; but I consider that
it is open to the jury to find that the
matters upon which the defendants seek to rely, if proven, could meet the
sting of the imputations
pleaded in paragraphs 6(a) and 6(e). Mr Reeves
submitted that "corrupt" implied abuse of power for personal gain, and
"dishonest"
implied a disposition to cheat, lie or steal for self gain. It is
for the jury to find what imputations the broadcast conveyed and
I consider
that it is open to the jury to find that the meanings did not imply more than
that which the defendants assert.
THE FIRST
DEFENDANT'S SUBMISSIONS
28. Mr Wrenn submitted that was no evidence fit to go to the jury that he was
responsible for the publication
of so much of the broadcast as supported the
imputations pleaded in paragraphs 6(a), (e), (k), (l), (m), (n) and (o) of the
Statement
of Claim. Mr Wrenn, who appeared in the broadcast, submitted that
as he did not say anything in the broadcast which supported these
imputations,
he could not be held responsible for them.
29. The plaintiff's particulars of the imputations in each of the paragraphs
of the Statement of Claim indicate as follows:
(1) imputation 6(a) does rely in part on words which the
first defendant spoke
in the program. It also relies upon
words spoken in the program by a reporter and by words
spoken by another person known
by the pseudonym "Rhonda".
However, I consider that the words spoken by the first
defendant are sufficient for this issue to
be left to the
jury;
(2) imputation 6(e) relies in part on words spoken by the
first defendant in the program. I consider
that the words
spoken by the first defendant are also sufficient for this
issue to be left to the jury.
30. It is true that
in neither instance did the first defendant say, in so
many words, that the plaintiff was corrupt or dishonest. The plaintiff
submits
that these meanings are inferences to be drawn from what the first
defendant did say. I consider that these inferences are open
to be drawn. An
inference to be drawn from the words used is part of the natural and ordinary
meaning of the words: Gatley in Libel
and Slander, 8th Edition, paragraphs 93
and 97;
(3) imputation 6(k) (that the plaintiff had a corrupt
relationship with a
Darwin night club owner) relies in part
upon words actually spoken by the first defendant in the
program. Once again I consider
that the words spoken by the
first defendant in the program may give rise to this
inference;
(4) imputation 6(e) (that the
plaintiff tipped off suspects
of planned drug searches) is in the same position as
imputation 6(k).
31. I should add that
both imputations 6(k) and 6(l) also rely upon
statements made by the reporter, the source of which he attributed to Wrenn,
in the
program itself. That reporter has not given evidence. Mr Wrenn was
not cross examined upon, and nor did he give direct evidence
of, all of the
information he passed on to the second defendant's reporter. The context of
the program suggests that much of what
the reporter said on this topic in the
program was said in the first defendant's presence at the time that part of
the program was
recorded and, as Mr Wrenn did not correct the reporter, it
would be open to the jury to infer that he was indeed the source;