CONCLUSION
98 In conclusion, it may be helpful if I comment briefly on the reasons why I respectfully disagree with Spigelman CJ and Ipp JA.
99 I agree with Spigelman CJ that a formulation of the same imputation at a higher level of generality is not "another imputation" within s.16(1); it was for that reason that I rejected many of the defendant's contextual imputations, apart from the first. Mere "anonymising" is not enough. However, if a formulation at a higher level of generality makes the imputation different in substance, then this is not a formulation of the same imputation at a higher level of generality. In the present case, my view is that an imputation of general dishonesty as a broadcaster is at least capable of being substantially different (because wider and more thorough-going) from an imputation of dishonesty as a broadcaster in that a particular act is performed; and accordingly this aspect of the defence should not have been struck out in advance of the hearing.
100 I do not believe that my approach unreasonably subjects plaintiffs to being caught in the "Maisel" trap. I think it is generally consistent with the approach at general law, illustrated by Maisel and Polly Peck, and also with policy behind s.16(2) of the Act, that if defamatory material truly carries an imputation that swamps the plaintiff's imputation and can be justified, the defendant should be able to rely on this, either as an outright defence or at least in mitigation of damages.
101 Whereas Spigelman CJ accepts that the contextual imputation may differ in substance from that found by the jury, Ipp JA holds that the meanings of the two imputations are in substance the same. I have already indicated my disagreement with that. Furthermore, if it is right, it seems to me that the defendant could justify the plaintiff's imputation by reference to other acts of dishonesty. Certainly this would seem to be so at general law, at least if the second proposition in Polly Peck is correct. That is, on Ipp JA's view, there is an overall charge that the plaintiff is a dishonest broadcaster, and in so far as the plaintiff referred to a particular act of dishonesty, this would, on his view, be an inseverable part or aspect of this overall charge. Thus I agree with Ipp JA that, on his approach, the defendant could attempt to justify under s.15(2) of the Act, and the interstate defences should not be struck out.
102 In my opinion, the following orders should be made in CA40056 of 2003 (concerning contextual imputations and other defences):
(a) Leave to appeal granted.
(b) Notice of Appeal to be filed within 14 days.
(c) Appeal allowed.
(d) Orders 1-6 below set aside.
(e) In lieu thereof, paragraphs 4(a)(2)-(6) and 6(a)(2)-(6) of the Defence are struck out, and plaintiff is to pay one-half of the defendants' costs of the application.
(f) Opponent to pay claimants' costs of the application for leave and appeal, and to have a certificate under the Suitors' Fund Act if otherwise qualified.
103 However, the majority decision makes the following orders appropriate to dispose of this application:
1. In CA40055 of 2003 (concerning aggravated damages), leave to appeal refused with costs.
2. In CA40056 of 2003 (concerning contextual imputations and other defences:
(a) Leave to appeal granted.
(b) Notice of Appeal to be filed within 14 days.
(c) Appeal allowed in part.
(d) Order 1-6 below set aside.
(e) In lieu thereof, paragraphs 4 and 6(a)(2)-(6) of the defence are struck out.
3. Leave to both parties to make written submissions concerning costs within 7 days, any reply to be provided within a further 7 days.
104 The leave given by Order 3 will apply to both costs at first instance and on appeal.
105 IPP JA: I have had the benefit of reading the reasons to be published by Spigelman CJ and Hodgson JA. In the light of their Honours' full treatment of the relevant issues it is necessary for me to deal only with the questions that concern the defendants' first contextual imputation and the interstate defences. I would add that I found these questions particularly difficult to answer.
106 The jury found that the material complained of carried the following imputation defamatory of the plaintiff:
"The plaintiff was a dishonest broadcaster, in that he secretly agreed with the AMP Society that he would cease to criticise the AMP Society on air in return for the AMP Society agreeing to provide a substantial benefit to the South Sydney Rugby League Club of which he was Director of Football".
107 I agree with Hodgson JA that this imputation meant that the plaintiff's conduct "was indicative of his character as being that of a dishonest broadcaster, and could not be considered as merely an isolated dishonest act proceeding 'out of character' from someone who was otherwise an honest broadcaster".
108 In other words, in my view, the imputation found by the jury is to the effect that the general character of the plaintiff is that of a dishonest broadcaster.
109 The relevant contextual imputation relied on by the defendant is that "the plaintiff was a dishonest broadcaster". Thus, the defendants' contextual imputation, reflecting as it does on the general character of the plaintiff as a broadcaster, is, in effect, the same imputation as the plaintiff's imputation.
110 Generally speaking, the same words may be capable of bearing a broad defamatory meaning and a narrow defamatory meaning. I accept that if a plaintiff sues for defamation, relying only on the narrow meaning of the words, the broad meaning will ordinarily be "another meaning" within the meaning of the phrase in s 16(1) of the Defamation Act 1974.
111 In the present case, however, I do not think that the matter complained of has, relevantly, both broad and narrow meanings. In my opinion, the meaning of the plaintiff's imputation and the defendants' contextual imputation is, in effect, the same. That is, that the general character of the plaintiff is that of a dishonest broadcaster.
112 As I have concluded that the plaintiff's imputation carries with it the broad meaning to which I have referred, namely, that the act was indicative of the plaintiff's general character as being that of a dishonest broadcaster, I disagree with Hodgson JA that "the plaintiff's imputation can reasonably be considered as involving a limited type of dishonesty".
113 Accordingly, I agree with Spigelman CJ that paragraph 4 of the statement of claim should be struck out.
114 In theory, in my view, it would have been open to the defendant to attempt to justify, under s 15(2) of the Defamation Act, the imputation found by the jury, but it has not chosen to do so.
115 It follows, further, in my view, that the defendant is entitled to raise the interstate defence pleaded in para 6(a)(1) of the defence. I would not strike that paragraph out. I agree with Hodgson JA that, as regards the interstate defences, only paras 6(a)(2) to (6) be struck out (and not para 6(a)(1)).
116 Accordingly, I propose the following orders:
(a) Leave to appeal in CA 40055 of 2003 should be dismissed with costs.
(b) Leave to appeal in CA 40056 of 2003 should be granted.
(c) Paragraph 4 of the defence should be struck out.
(d) Paragraphs 6(a)(2)-(6) of the defence should be struck out.
(e) The orders of Levine should be varied accordingly.
(f) I would make no order as to costs.
117 On the other issues I agree with Hodgson JA.
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