John Fairfax Publications Pty. Limited v. Blake, David Syme & Co. Limited v. Blake [2001] NSWCA 434

Court of Appeal (NSW)|2001-11-28|Before: Spigelman CJ, Hodgson JA, Levine J

CITATION : John Fairfax Publications Pty. Limited v. Blake, David Syme & Co. Limited v. Blake [2001] NSWCA 434 FILE NUMBER(S) : CA 40801/01; CA40817/01 HEARING DATE(S) : 17 Ocotober 2001 JUDGMENT DATE : 28 November 2001

John Fairfax & Co. Pty. Ltd. - claimant PARTIES : David Syme & Co. Ltd. - claimant Dominic Blake - opponent JUDGMENT OF : Spigelman CJ at 1; Hodgson JA at 28; Rolfe AJA at 70

LOWER COURT JURISDICTION : Supreme Court LOWER COURT SC 20279/00 FILE NUMBER(S) : LOWER COURT Levine J JUDICIAL OFFICER :

COUNSEL : Mr. G. O'L. Reynolds SC with Mr. R. McHugh for claimants Mr. R. Campbell for opponent Freehills from John Fairfax & Co. Ltd. SOLICITORS : Minter Ellison for David Syme & Co. Ltd. Gallagher De Reszke for opponent CATCHWORDS : DEFAMATION - Pleading - Contextual imputation - Requirements - Specificity - Whether injury from plaintiff's imputations to be weighed against injury from the contextual imputations or from the matters by reason of which such imputations are substantially true. D. LEGISLATION CITED : Defamation Act 1974 ss.9, 16. Supreme Court Rules Pt.67 r.11 and r.15. Feros v. West Sydney Radio Pty. Ltd. NSWCA 22/6/82 Hepburn v. TCN Channel Nine Pty. Ltd. [1983] 2 NSWLR 682 Whelan v. John Fairfax & Sons Limited (1988) 12 NSWLR 148 CASES CITED: John Fairfax & Sons Limited v. Foord (1988) 12 NSWLR 706 Drummoyne Municipal Council v. Australian Broadcasting Commission (1990) 21 NSWLR 135. Jackson v. John Fairfax & Sons Limited [1981] 1 NSWLR 36 Waterhouse v. Hickie (1995) Aust.Tort.Reports 81-347 at 62, 493-62,494 TCN Channel Nine Pty. Limited v. Antoniadis (1998) 44 NSWLR 682 at 691-2. DECISION : Leave to appeal granted, and appeal dismissed.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40801/01 CA 40817/01 SC 20279/00 SPIGELMAN CJ HODGSON JA ROLFE AJA 28th November 2001 JOHN FAIRFAX PUBLICATIONS PTY. LIMITED V. BLAKE DAVID SYME & CO. LIMITED V. BLAKE Judgment

1 SPIGELMAN CJ: I have had the advantage of reading the judgment of Hodgson JA in draft. His Honour sets out the issues in the case, the relevant statutory provisions and Rules of Court, the submissions made by the parties and refers to relevant authorities. I reach the same conclusion as his Honour, but by a somewhat different route. 2 Each of the Claimants' contextual imputations, denoted A, B and C, are the subject of precise Particulars of Truth, as fully set out by Hodgson JA. These Particulars identify the way in which the Claimants propose to establish that the contextual imputations are matters of "substantial truth". This is of significance for s16(2)(b)(ii) of the Defamation Act 1974. For present purposes however, it is pertinent to identify their significance for s16(2)(c) which provides: "16(2)(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff." 3 One of the bases on which Levine J struck out the imputations in the present case is that they were not, either alone or in combination, such that the Opponent's imputations did not cause any further injury to the Opponent. Accordingly, his Honour held that the requirements of s16(2)(c) could not be satisfied and he declined leave to amend on the basis of futility. 4 Mr Reynolds SC, who appeared for the Claimants made submissions on the basis that the task to be performed under s16(2)(c) was, as he expressed it on one occasion, one of "weighing imputation against imputation". I do not agree. 5 Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a "matter of substantial truth". It is "by reason" of such "substantial truth" that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff's imputation does not "further injure the reputation of the plaintiff". For purposes of determining whether the s16 defence is capable of being made out, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself. 6 Hodgson JA emphasises the use of the words "further injure" and notes that a person's reputation is injured by the publication of an imputation. I accept that s16(1) requires that, for an imputation to be contextual, it must be "made by the same publication". However, s16(2)(c) does not begin with words to the effect "by reason of the publication of the contextual imputation" or "by reason of the injury caused by the publication of the contextual imputation". The drafter appears to have assumed that there was such injury and then directed attention to "substantial truth" which, in my opinion, ought be taken into account in formulating the conclusion for which s16(2)(c) calls. 7 The Particulars of Truth of Contextual Imputation A make it clear that the assault referred to in the imputation is constituted by a threat. The Particulars of Truth of Contextual Imputation B indicate the basis on which the device is said to be a prohibited weapon under the Prohibited Weapons Act 1989. The Particulars of Truth for Contextual Imputation C indicate that the basis of the assertion that the plaintiff was in possession of a dangerous weapon was the alleged possession of a device capable of inflicting physical injury by means of electric shock. 8 The Claimants seek to plead the three contextual imputations, both individually and collectively, to each of the Opponent's imputations. It is convenient to deal with the Opponent's imputations (a) and (c) before the Opponent's imputation (b). 9 The Opponent's imputation (a) is that the plaintiff was "convicted of the offence of causing actual bodily harm to a twelve year old boy". The Opponent's imputation (c) is that the plaintiff is "a cruel person in that he inflicted electric shocks on a twelve year old boy". 10 Each of these imputations allege serious criminal conduct of a character which must by its nature have inflicted significant injury on the reputation of the Opponent. This effect is to be contrasted with the effect of the "substantial truth" of the combined impact of the three contextual imputations A, B and C. 11 The Claimants' Particulars of Truth of the Contextual Implications indicate that, both individually and collectively, the substantial truth of those imputations is/are of lesser significance than each of the Opponent's imputations (a) and (c). The Opponent's imputations allege, respectively, conviction for the infliction of actual bodily harm and a characteristic of cruelty by reason of the infliction of electric shocks. The combined effect of an assault by means of a threat, together with possession of a prohibited and/or dangerous weapon is of a significantly lesser order of obloquy. Actual injury and/or battery and/or criminal conviction are more significant in terms of impact on reputation than a mere threat and the possession of a means of inflicting injury, whether dangerous and/or prohibited. In my opinion, a tribunal of fact could not rationally determine that the essential element of the defence contained in s16(2)(c) had been met. 12 For these reasons I am of the opinion that his Honour was correct to refuse leave to plead contextual implications A, B and C to the Opponent's imputations (a) and (c). 13 The position with respect to the Opponent's imputation (b) is not so clear. That imputation is that the Plaintiff was "convicted of the offence of possessing a prohibited weapon". The sting in the conviction is such that contextual imputations B and C, which assert mere possession of a prohibited weapon, or alternatively a dangerous weapon, could not satisfy the requirements of s16(2)(c). The truth of these contextual imputations is not such as could entitle a tribunal of fact to conclude that the Opponent's imputation (b) did not further injure the reputation of the Plaintiff. 14 However, the Claimants seek to rely on imputations B and C in their combined effect with imputation A, as particularised, to the effect that the Opponent threatened a twelve year old boy with the use of the device. I would not wish to be understood to downgrade in any way the significance of a conviction for the criminal offence of possessing a prohibited weapon. Nevertheless, the combined effect of an imputation that the Opponent was in possession of a prohibited and/or dangerous weapon and had threatened to use it against a twelve year old boy in the manner identified in the Claimants' Particulars of Truth for Contextual Imputation A is capable of equalling the injury to the reputation of the Plaintiff that arose by reason of publication of the imputation that the Plaintiff was convicted of possession of a prohibited weapon. 15 Accordingly, it was not appropriate to strike out contextual imputations A, B and C with respect to Opponent's imputation (b) on this basis. In this respect it is necessary to consider other bases upon which Levine J struck out the contextual imputations, as supported by the Opponent on this appeal. 16 Hodgson JA concludes that the Claimant should not be permitted to plead imputation A in its present form, which refers to an "assault", without identification in the pleading, as distinct from the particulars, of the kind of assault on which the Claimants seek to rely. 17 I set out more fully a passage from the judgment of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137, to which Hodgson JA has referred: 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 in considerations of practical justice rather than philology. In John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706, this Court approved of Hunt J's leaving to the jury an imputation that the plaintiff was a criminal associate of drug dealers. Noone suggested that it was necessary to identify with particularity the crime or crimes alleged to have been committed by the plaintiff, even though it is always theoretically possible to be more specific about an allegation that a person is a criminal. Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter" 18 Amongst the facts and circumstances of a case that determine the practical application of the principles are the particulars of substantial truth that must be provided. The requirement of precision arises in part from the terms of Pt 67 r 15, which has been set out in full by Hodgson JA, requiring that a defence "specifies one or more imputations on which the defendant relies as being contextual to the imputation in question". This rule is, however, part of an integrated scheme in the Rules, which includes the express provision in r 18(1)(c) that: "18(1) The particulars of defence required by Part 16 rule 1 shall, unless the Court otherwise orders, include particulars of the facts, matters and circumstances on which the defendant relies to establish: … (c) that any imputation or contextual imputation was true or was a matter of substantial truth." 19 This obligation was complied with in the present case. In the authorities referred to in the submissions to this Court, the relevant party did not always provide any degree of particularity. In my opinion, in the circumstances of this case, the "considerations of practical justice" to which Gleeson CJ made reference in Drummoyne (supra) at 137C and 138E, do not require that the precise nature of the assault relied upon be identified in the imputation, as distinct from the particulars. There will not, in the circumstances of this case, be any confusion at the trial. (See Drummoyne (supra) at 138E quoting Hunt J in Whelan v John Fairfax & Sons Ltd (1998) 12 NSWLR 148 at 155.) 20 Levine J also found that each of the contextual imputations did not arise additionally to those found by the jury to have defamed the Opponent. In this portion of his brief reasons, his Honour was applying one of the specific questions that had been formulated by Hunt J as arising when a defence under s16 is pleaded in Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 and Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 and which was set out and approved in this Court in Waterhouse v Hickie (1995) Aust Torts Reports 81-347 at 62,493-62,494 and TCN Channel 9 Pty Ltd v Antoniadis (1998) 44 NSWLR 682 at 691-692. 21 In his submissions Mr Reynolds proceeded on the basis that Levine J had found that each of contextual imputations A, B and C is incapable of arising from the matter complained of. He submitted that each was. The relevant one is imputation A. If that imputation is incapable of arising then it should be struck out. If it is struck out then imputations B and C are not, in my opinion, capable of equalling the injury to the Plaintiff's reputation which arises by reason of the Opponent's imputation (b). 22 It is convenient to set out the whole of the matter complained of: "Stunned. This is the citizen that went too far. Dominic Blake, of Woolloomooloo, Sydney, caught a 12-year-old boy throwing rocks at his house. He called the police, then used a stun-gun to give the boy electric shocks. Blake, 32, was found guilty of assault, causing actual bodily harm and possessing a prohibited weapon." 23 Nothing in the text refers to an "assault" in the form identified in the Particulars of Truth i.e. by means of a threat. The text is explicit that what occurred was a battery. Mr Reynolds submitted that prior to administering any form of electric shock the Opponent "must … have approached the victim brandishing" the electric device. He submitted that "there would have been an assault in the more limited technical sense, followed by a battery". Mr Reynolds sought to support his contention by referring to the express use of the word "assault" in contradistinction, he submitted, to the words "causing actual bodily harm" in the last sentence of the matter complained of. The publication asserted three convictions for criminal offences in which the first (i.e. "assault") was separated by a comma from the second (i.e. "causing actual bodily harm") and the three were linked by the use of the word "and" before reference to the third offence (i.e. "possessing a prohibited weapon"). 24 He submitted that it was open to the tribunal of fact to find that contextual imputation A was conveyed in addition to imputation (a). In my opinion this contention should be rejected. 25 The administration of "electric shocks" does not necessarily, though of course it can, lead to "actual bodily harm". The only words in the matter complained of capable of answering the description of each of "assault" and "causing actual bodily harm" is the express reference to "used a stun-gun to give … electric shocks". There is no reference to anything capable of constituting "brandishing". Nor could the ordinary reasonable reader infer anything of this character. In my opinion contextual imputation A is not capable of arising. His Honour was correct to strike it out. 26 As I have indicated, if contextual imputation A is struck out on this basis, then both contextual imputations B and C should be struck out because their combined effect is not capable of equalling Opponent's imputation (b) in terms of injury to reputation. Accordingly, the essential element of the defence prescribed in s16(2)(c), is not capable of being established. 27 For these reasons I agree with the orders proposed by Hodgson JA. 28 HODGSON JA:: On 5th October 2001, Levine J refused applications by John Fairfax Publications Pty. Limited (Fairfax) and David Syme & Co. Limited (Syme) for leave to amend their Defences to proceedings brought against them by Dominic Blake. Fairfax and Syme have each applied for leave to appeal from that refusal. Argument in relation to the appeal proceeded concurrently with argument on the leave application.

CIRCUMSTANCES 29 Mr. Blake's proceedings arose out of the publication of an article entitled "Help Yourself" in SundayLife magazine, an insert in The Sun-Herald newspaper and the The Sunday Age newspaper on 17th October 1999. The article concerned citizen's arrests, and contained the following material: As it happened - citizen's arrests that went to court. …. 3. Stunned. This is a citizen that went too far. Dominic Blake of Waterloo, Sydney, caught a 12-year-old boy throwing rocks at his house. He called the police, then used a stun-gun to give the boy electric shocks. Blake, 32, was found guilty of assault, causing actual bodily harm and possessing a prohibited weapon. 30 In fact, Mr. Blake had in July 1997 been found guilty of assaulting a 12-year-old boy and occasioning to him actual bodily harm, and of possessing a prohibited weapon; but Mr. Blake appealed from those convictions, and in May 1998 the District Court dismissed the charges against him and awarded him costs against the police. 31 These proceedings were commenced in June 2000. By his Amended Statement of Claim filed October 2000, Mr. Blake alleged that the publication bore the following meanings defamatory of him: (a) the plaintiff was convicted of the offence of causing actual bodily harm to a twelve-year old boy; (b) the plaintiff was convicted of the offence of possessing a prohibited weapon; (c) the plaintiff is a cruel person in that he inflicted electric shocks on a twelve-year old boy 32 Fairfax and Syme denied these imputations and denied that they were defamatory; and also, in mitigation of damages, relied on the following apology published on 21st November 2000: An article headed 'Help Yourself' on October 17, which discussed the perils of citizen's arrests, stated that Dominic Blake had been found guilty of assaulting a 12-year-old boy who had thrown rocks at his house, of causing actual bodily harm and of possessing a prohibited weapon. In 1998 Mr. Blake successfully appealed against that conviction in the District Court, which took the unusual step of awarding him costs against the police. Sunday Life apologises to Mr. Blake for any embarrassment caused. 33 On 20th February 2001, following a hearing by Newman J with a jury, the jury found all the imputations pleaded by Mr. Blake to be conveyed by the matter complained of, and to be defamatory of him. 34 On 1st June 2001, the proceedings were referred to callover for allocation of a hearing date for assessment of damages. The callover was held on 15th June 2001, and the proceedings were set down for the damages assessment hearing on 25th and 26th October. Meanwhile, on 8th June 2001, Fairfax caused subpoenas to be issued to the District Court of New South Wales and to the Director of Public Prosecutions, in relation to documents alleged to be relevant to Mr. Blake's claim for aggravated damages. Some delays were experienced in obtaining documents from the District Court; and the full transcript of the hearing before the District Court was not obtained until 17th September 2001. 35 This material led Fairfax's legal advisers to believe that it may have an additional defence to Mr. Blake's claim; and on 17th September 2001, Fairfax served a proposed Amended Defence on Mr. Blake. Paragraphs 4 to the end of this Amended Defence were as follows: 4 Further and in the alternative, to the extent to which it is found that the matter complained of was published of and concerning the plaintiff (which is not admitted) and gives rise to any of the Imputations (which is denied) and that any such Imputation is defamatory of the plaintiff (which is also denied) the first defendant says: (a) in relation to publication in New South Wales: (1) the matter complained of, in its natural and ordinary meaning, gives rise to each of the following ("the Contextual Imputations"): (A) The plaintiff assaulted a 12-year-old boy by the use of an electrical device; (B) The plaintiff was in possession of a prohibited weapon; (C) The plaintiff was in possession of a dangerous weapon. (2) each of the Contextual Imputations: (A) was published contextually to each of the Imputations (each of which relates to matters of public interest); (B) is a matter of substantial truth; (C) relates to matters of public interest. (3) by reason of the substantial truth of any one or more of the Contextual Imputations, the Imputations do not further injure the reputation of the plaintiff.

(b) in relation to publication in Tasmania: (1) the matter complained of, in its natural and ordinary meaning, gives rise to each of the Contextual Imputations; (2) in the meanings contained in the Contextual Imputations, the matter complained of is true; (3) it was for the public benefit that the matter complained of should be published; (4) having regard to the truth of the Contextual Imputations, the Imputations do not materially injure the plaintiffs reputation.

(c) in relation to publication in all other States and Territories of Australia: (1) the matter complained of, in its natural and ordinary meaning, gives rise to each of the Contextual Imputations; (2) in the meanings contained in the Contextual Imputations, the matter complained of is true in substance and in fact.

5 The first defendant denies the allegations in paragraph 5 of the Amended Statement of Claim and denies that the plaintiff is entitled to the relief claimed against the first defendant, or to any relief at all.

The first defendant does not plead to paragraphs 2, 6, 7 and 8 of the Amended Statement of Claim as the allegations therein do not relate to the plaintiffs case as against the first defendant (on the assumption that the reference in paragraph 8 to the "first defendant" is a typographical error and should read "second defendant".)

Particulars of Public Interest - SCR Part 67 Rule 18(1)(a) The first defendant contends that the Imputations and the Contextual Imputations relate to the following subjects each of which it will be contended is inherently a matter of intimate interest to the public: 1. The conviction of the plaintiff of criminal offences (Imputations (a) and (b)) 2. The serious conduct of the plaintiff towards a 12-year-old boy (Imputations (a) and (c), and Contextual Imputation (A)); 3. The possession by the plaintiff of a weapon prohibited by law (Imputation (b) and Contextual Imputation (B)); 4. The possession by the plaintiff or a dangerous weapon (Imputation (b) and Contextual Imputations (B) and (C); 5. The use by the plaintiff of a dangerous weapon (Imputation (c) and Contextual Imputation (A)).

Particulars of Truth of Contextual Imputation (A) On or about 28 February 1997, having physically detained James Simon, a 12-year-old boy, and taken him into his home, the plaintiff whilst holding James Simon: (a) produced an electrical discharge device capable of inflicting physical injury by means of electric shocks upon a person with whom its probes came into contact; (b) activated the device by operating a mechanism which triggered an electric current to run through the device: (c) threatened to use the device on James Simon; with the intention of terrifying James Simon into submission.

Particulars of Truth of Contextual Imputation (B) 1. For a period of some 12 to 18 months prior to 15 March 1997 the plaintiff owned an electrical discharge device which was capable of inflicting physical injury by means of electric shocks upon a person with whom its probes came into contact; 2. The electrical discharge device was a similar device to a Taser self-defence weapon, and accordingly was, at the relevant time, a prohibited weapon under the Prohibited Weapons Act 1989 (NSW), Schedule 1 (Item 19).

Particulars of Truth of Contextual Imputation (C) For a period of some 12 to 18 months prior to 15 March 1997, the plaintiff owned an electrical discharge device which was capable of inflicting physical injury by means of electric shocks upon a person with whom its probes came into contact;

Particulars of Mitigation of Damages - SCR Part 67 Rule 18(2) The first defendant proposes to rely, in mitigation of damages, upon: (a) the apology to the plaintiff which it published on page 20 of the 21 November 1999 issue of "Sunday Life " magazine; (b) the truth or substantial truth of any one or more of the Contextual Imputations; (c) the plaintiff's proceedings for damages against the second defendant herein, given that the matter on which the second defendant is sued is to the identical purport or effect as the matter complained of against the first defendant (see Defamation Act 1974, s.48). 36 On 21st September 2001, Fairfax applied to amend its Defence as proposed, and this application came on for hearing before Levine J on 5th October 2001. Levine J treated the application as being one made by both Fairfax and Syme, and, as noted at the beginning of this judgment, he dismissed the application. He gave the following reasons: 5 The defendant now seeks to plead a defence under s 16 of the Defamation Act and, in the light of the material in the affidavit of Ms Norman sworn 20 September 2001, it fairly can be stated as a matter of reasonable conclusion that it seeks to do so because of a belief in its capacity to prove its proposed contextual imputations true by reference to certain material that has been exposed on the inspection of documents produced on subpoena.

6 The matter is presently fixed for hearing for the assessment of damages only on 24 and 25 October, a few weeks hence.

7 The proposed contextual imputations are: (a) The plaintiff assaulted a 12 year old boy by the use of an electrical device; (b) The plaintiff was in possession of a prohibited weapon; (c) The plaintiff was in possession of a dangerous weapon.

8 I do not propose to review at length all the corpus of decisions on what still remains, perhaps, the most elusive of components of the Defamation Act 1974, that dealing with the defence enacted in s 16 (contextual truth) in the light of the recommendations of the Law Reform Commission.

9 What is argued for the plaintiff is that the proposed contextual imputation (a), that the plaintiff assaulted a 12 year old boy by the use of an electrical device , does not arise and cannot arise in addition to or in a substantially different way from those found by the jury to defame the plaintiff.

10 In relation to proposed contextual imputation (c), as I understood the submission it was contended that it lacks precision, namely that the plaintiff was in possession of a dangerous weapon - with which proposition I agree - but further, that it was incapable of being defamatory - with which proposition I disagree.

11 The proposed contextual imputation (b), that the plaintiff was in possession of a prohibited weapon , is also, to put it shortly, captured by the imputations pleaded by the plaintiff.

12 I am firmly of the view that the purpose of s 16 is really quite simple. It is to operate in circumstances where a publication conveys various imputations, substantially different one from the other, but in respect of which the plaintiff elects to sue on one or some only. It entitles the defendant properly to defend the action by pleading the other imputations not sued upon, and justifying them to bring about a just result that otherwise an undeserving plaintiff, by reason of what was in fact published of that plaintiff, should not succeed.

13 The present exercise has been characterised by counsel for the plaintiff as a " back door" exercise, seeking to " get it right" or " nearly right" by adopting the language used by Hunt J in NRMA Insurance Limited v Amalgamated Television Services Pty Ltd (unreported, 14 July 1989) which I have cited in my judgment of McBride v The ABC [2000] NSWSC 747.

14 That really is a rhetorical submission that need not necessarily have been made because the motion, in my view, is otherwise absolutely without merit. The proposed contextual imputations, on no rational basis, can be considered to be different in substance from those found by the jury to have defamed Mr Blake, to arise additionally to those found by the jury to have defamed Mr Blake, or individually or collectively to have that quality which, if allowed and if proved and if relating to matters of public interest, would otherwise deprive Mr Blake of a verdict by reason of no further injury to his reputation having been caused by their publication.

15 I do not propose to say any more and refuse leave to amend.

GROUNDS OF APPEAL 37 The grounds of appeal sought to be relied on by Fairfax and Syme are as follows: 1. His Honour erred in refusing leave to the appellant to amend its defence. 2. His Honour erred in his construction of section 16 of the Defamation Act 1974. 3. His Honour erred in holding that proposed contextual imputation (c) was lacking in precision. 4. His Honour erred in holding that the proposed contextual imputations did not differ in substance from the imputations pleaded by the respondent. 5. His Honour erred in holding that the proposed contextual imputations did not arise additionally to those pleaded by the respondent. 6. His Honour erred in holding that the proposed contextual imputations did not, individually or collectively, have the quality which, if allowed and if proved and if relating to matters of public interest, would otherwise deprive the opponent of a verdict by reason of no further injury to his reputation being caused by their publication.

LEGISLATION AND COURT RULES 38 The legislative provisions relevant to this application are s.9(1) and (4), and s.16, of the Defamation Act 1974, which are in the following terms: 9.(1) Where a person publishes any report, article, letter, note, picture, oral utterance or other thing, by means of which or by means of any part of which, and its publication, the publisher makes an imputation defamatory of another person, whether by innuendo or otherwise, then for the purposes of this section: (a) that report, article, letter, note, picture, oral utterance or thing is a " matter ", and (b) the imputation is made by means of the publication of that matter. … (4) Rules of court may prohibit or regulate the reliance by a plaintiff in proceedings for defamation on several imputations alleged to be made by means of the same matter published by the defendant, where the several imputations do not differ in substance. … 16(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff. 39 Part 67 r.11 and r.15 of the Supreme Court rules also have some relevance. They are in the following terms: 11(1) A statement of claim shall not include any allegation that the matter complained of or its publication was false, malicious or unlawful. (2) A statement of claim: (a) shall, subject to subrule (3), specify each imputation on which the plaintiff relies; and (b) shall allege that the imputation was defamatory of the plaintiff. (3) A plaintiff shall not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same report, article, letter, note, picture, oral utterance or thing, unless the imputations differ in substance. (4) (Repealed) (5) The time to be limited for a defendant to enter an appearance shall be on or before the date of hearing fixed by the notice under rule 11A. … 15. Subject to rule 13 (2), a defence under section 16 of the Defamation Act 1974 is sufficiently pleaded if it: (a) alleges either: (i) that the imputation in question related to a matter of public interest; or (ii) that the imputation in question was published under qualified privilege; (b) specifies one or more imputations on which the defendant relies as being contextual to the imputation in question; (c) as to each imputation on which he so relies: (i) alleges either that it related to a matter of public interest or that it was published under qualified privilege; and (ii) alleges that it was a matter of substantial truth; and (d) alleges that, by reason that the imputations on which the defendant so relies are matters of substantial truth, the imputation in question did not further injure the reputation of the plaintiff.

SUBMISSIONS 40 Mr. Reynolds SC for the claimants submitted that the primary judge erred in holding that the proposed contextual imputations could not on any rational basis be considered (1) to be different in substance from the imputations found by the jury to have defamed Mr. Blake (which I will call the plaintiff's imputations), (2) to arise additional to the plaintiff's imputations and (3) to be such that, by reason of their substantial truth, any of the plaintiff's imputations did not further injure Mr. Blake's reputation. 41 In relation to each of the proposed contextual imputations A, B and C set out in paragraph 4(a)(1) of the proposed Amended Defence, Mr. Reynolds submitted that the primary judge was plainly wrong in relation to the propositions numbered (1) and (2) above. As regards the proposition numbered (3), it was necessary to consider the cumulative effect on Mr. Blake's reputation of all the three contextual imputations, as against the effect on that reputation of each of the plaintiff's imputations individually: the cumulative effect of the contextual imputations was such as to be capable of swamping the effect of each of the plaintiff's imputations. 42 Mr. Reynolds submitted that the primary judge had not in fact found that the contextual imputation C was so lacking in precision that it should have been struck out; and that in any event, any such finding would be plainly wrong. 43 In response to an oral Notice of Contention at the hearing that contextual imputation A was impermissibly vague in that "assaulted" was ambiguous as between actual application of force and mere threat of the same, Mr. Reynolds provided written submissions. 44 He contended first that contextual imputations are governed by the same principles relating to precision as a plaintiff's imputations. He submitted that the words used in the Defamation Act and in the Supreme Court rules were relevantly the same in relation to each, notably the word "imputation" used in the Act, and the word "specify" used in the Supreme Court rules Pt.67 r.11(2) and r.15. 45 Furthermore, Mr. Reynolds submitted that to apply different rules as to precision in relation to the two types of imputation would create strange results. First, because a defendant is entitled to "plead back" any of the plaintiff's imputations as contextual imputations (Perkins v. Harris NSWCA 26/5/95, Allen v. John Fairfax, Hunt J, 2/12/88 and Hepburn v. TCN Channel Nine Pty. Limited [1984] 1 NSWLR 386 at 396-8, 404-5), any difference in the rules applicable to the two forms of imputations would mean that some imputations relied on by the plaintiff could not be pleaded by the defendant as contextual imputations. Second, Mr. Reynolds submitted that in a case where a defendant published a number of fairly vague but distinct allegations about a plaintiff, and the plaintiff pleaded one such imputation which was easily outweighed by the other vague imputations, different rules as to specificity could mean that the defendant could not plead the other imputations as contextual imputations. 46 Mr. Reynolds further submitted that, although the same rules as to precision applied to the two cases, it will be easier for a defendant to satisfy the requirements of precision for reasons indicated by Hunt J in Hansen v. Boarder Morning Mail Pty. Limited, 24/10/86. That was because a defendant is obliged to plead any defence of truth or contextual truth to a plaintiff's imputation, whereas a plaintiff is required to do no more than simply join issue with the defendant's contextual imputations. Any imprecision in contextual imputations can be cured by particulars. 47 Mr. Reynolds submitted that any alleged ambiguity in the word "assaulted" did not make the contextual imputation impermissibly imprecise; and he referred to Feros v. West Sydney Radio Pty. Limited NSWCA 22/6/82, Hepburn v. TCN Channel Nine Pty. Limited [1983] 2 NSWLR 682, Whelan v. John Fairfax & Sons Limited (1988) 12 NSWLR 148, John Fairfax & Sons Limited v. Foord (1988) 12 NSWLR 706, and Drummoyne Municipal Council v. Australian Broadcasting Commission (1990) 21 NSWLR 135. Applying the Feros test, Mr. Reynolds submitted that it could not be said that the imputation was so uncertain or embarrassing that a pleader retained by the plaintiff would be in doubt as to the purpose of the words and be likely to raise a false issue in answer to them. Applying the reasoning in Hepburn, the claimants were not bound to refine the meaning of "assaulted", any more than an allegation that someone was an abortionist or a communist needed to be further assigned, nor need they choose between the lower and upper end of the range of meanings. Applying the reasoning of Gleeson CJ in Drummoyne, there could not be confusion either at the pleading stage or at trial in relation to the meaning for which the claimants contend. 48 The claimants made no application to amend contextual imputation A so that the meaning of "assaulted" was further refined. 49 Mr. Campbell for Mr. Blake submitted that the claimants' attempted use of s.16 in this case departed a long way from the legitimate use of that defence, and he referred us to Waterhouse v. Hickey (1995) Aust.Tort.Rep. 81-347. The defence was designed to apply where a plaintiff selects lesser imputations from the published material, and thereby seeks to sidestep or duck the truth of the most serious imputations in the publication. In this case, Mr. Campbell submitted, the plaintiff had singled out the worst imputations, sued on all of them, and pleaded them with precision. 50 Mr. Campbell submitted that the required precision varies depending upon the circumstances: see Drummoyne at 137 and 155. He submitted that to plead as ambiguously as the claimants proposed in this case would give rise to difficulties of the kind that arose in Singleton v. Ffrench (1985) 5 NSWLR 435.

DECISION 51 I find it convenient to deal first with the question of whether the proposed contextual imputation A is sufficiently precise. 52 If a publication contained the words that a person "assaulted a twelve-year-old boy by use of an electrical device", it seems clear that the person could plead those words as an imputation. What was said by Glass JA in Hepburn at 639 would be apt: I see no reason why the plaintiff should be compelled to define the sense in which the defendant employed a general expression. If the plaintiff is castigated as a criminal, criminality is predicated of him in all its amplitude. He is not faced with the need to choose between the lower end of the range which will moderate his damages and the upper end which, in the context of the publication, the jury may not accept. 53 Thus, the plaintiff in such a case would not have to choose between specifically alleging a mere threat (which would moderate damages) and the actual application of force (which the court might decide was not conveyed by the publication). However, if in such a case the plaintiff had in fact threatened the boy with an electrical device, then there could be a question whether proof of those facts would establish the substantial truth of the imputation: that in turn would depend on the Court's view as to the precise sense in which the general words would be understood in their context. The plaintiff in such a case could in addition plead the imputation of actual application of force, thereby avoiding the possibility of substantial truth being established; but there would be the risk in relation to that imputation that the Court might decide that it was not made by the publication. The pleading of the general expression actually employed by the defendant may in such a case maximise the plaintiff's chances of both establishing that the imputation was made and at the same time not being defeated by a defence involving proof of substantial truth. 54 However, in my opinion this does not mean that the plaintiff could necessarily plead such an imputation where those actual words were not used in an article, much less that a defendant could plead it as a contextual imputation in such circumstances. I respectfully agree with the following statement by Gleeson CJ in Drummoyne at 137: 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 in considerations of practical justice rather than philology.

In saying this, I am not saying that the word "imputation" has a different meaning in s.16(1) of the Defamation Act from its meaning in s.9(1) of the Act; nor that the word "specifies" in Supreme Court rule Pt.67 r.15(b) has a different meaning from the word "specify" in Supreme Court rule Pt.67 r.11(4). On the contrary, in each case the meaning is the same. However, considerations of practical justice may affect what is required by those same meanings in different situations. 55 Gleeson CJ went on to adopt the following test as to specificity formulated by Hunt J in Whelan at 155, as follows: The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends. 56 I respectfully accept that as an adequate statement of the issue for the purposes of a plaintiff's imputation; but in my opinion there may be additional issues concerning a defendant's contextual imputation. 57 In this case, the claimants plainly want to try to take advantage of the generality of the misconduct imputed by the words "assaulted … by use of an electrical device" for the purpose of assessing the damage to Mr. Blake's reputation caused by that imputation, with which to compare the damage caused by the plaintiff's imputations; but to justify that contextual imputation by proving the truth of a mere threat. That may not give rise to a problem of confusion at the pleading stage or at the trial, but in my opinion it would involve such a potential for injustice that, for that reason alone, I would be reluctant to permit pleading of the contextual imputation in those terms. If the claimants wish to prove the substantial truth of a contextual imputation concerning an assault by an electrical device by simply proving a threat, I believe that, as a matter of fairness, the contextual imputation should be expressed in terms of a threat. 58 The case is very different from the type of case referred to by Glass JA in Hepburn, where a plaintiff is not to be disadvantaged by the defendant's choice of general words in the defendant's publication. To my mind, it would be an injustice if a plaintiff could be disadvantaged in the way I have indicated, because a defendant has chosen to use vague and general words in identifying a contextual imputation. In my opinion, that view can be justified by reference to s.16(2)(c) of the Act. This provision seems to require consideration of whether the reputation of the plaintiff is so injured by the contextual imputations that it is not further injured by the plaintiff's imputation; yet it does not say "by reason of the extent to which the contextual imputations injured the plaintiff's reputation, the imputation complained of does not further injure that reputation". Rather, it begins with the words "by reason that the contextual imputations are matters of substantial truth", and this does not itself introduce into the section the requirement of substantial truth, because that is already required by s.16(2)(b)(ii). What I think this means is that s.16(2)(c) is requiring (or confirming what would in any event be required by overriding considerations of justice) that the contextual imputations must be specified in such a way as to ensure that the injury they would cause to the plaintiff's reputation, if in fact made by the publication, is no more than would be caused by a fair statement of the particular facts relied on as justifying the substantial truth of the contextual imputation. 59 That is not to say that a defendant can in no case rely on a contextual imputation using general words: it depends upon the circumstances. It may be that if a defendant did publish four vague but seriously defamatory allegations about a plaintiff, and the plaintiff chose to sue on the least damaging of them, the defendant would be able to rely on the other three as contextual imputations. It may be that there would be no injustice in that case, so long as what the defendant is required to do is to prove the substantial truth of the words actually published, as fairly understood. What I think is particularly objectionable is for a defendant to introduce as contextual imputations vague expressions different from those actually published, and then to seek to gain some advantage from that vagueness. 60 I do accept Mr. Reynolds' submissions that contextual imputation A is different in substance from the plaintiff's imputations, but, for the reasons I have given, I would not allow an amendment which includes contextual imputation A because it is unacceptably vague and imprecise. 61 In his judgment in this case, Spigelman CJ has taken the view that s.16(2)(c) does not require "weighing imputation against imputation": rather, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation itself. In my opinion, the use of the words "further injure" in s.16(2)(c) precludes this approach: the reputation of the plaintiff is not in fact injured at all by the facts, matters and circumstances in question, but only by the publication carrying the contextual imputation; so in my opinion it is a matter of weighing imputation against imputation. In my opinion, the true effect of the matters relied on by Spigelman CJ is as I have stated in par.58 above. I would add however that substantial justice is achieved by both approaches: in the case of my approach, by ensuring that the contextual imputation states the relevant facts, matters and circumstances fairly and precisely; and in the case of his approach, by weighing injury directly against the relevant facts, matters and circumstances themselves. 62 Turning to contextual imputation B, this is plainly different in substance from the plaintiff's imputations (a) and (c); and in my opinion, it is different in substance from the plaintiff's imputation (b) because it does not mention conviction. In my opinion also, it is capable of arising additionally from the publication: the word "additionally" in that test does not mean that the imputation must not be something already included in the plaintiff's imputations, merely that it must also be capable of being conveyed by the publication. 63 Turning to contextual implication C, this is plainly different in substance from all the plaintiff's imputations. However, I think it does suffer from lack of specificity, in the circumstances. There is a huge range of dangerous weapons, and in my opinion it would be unfair to permit a defendant to have the possibility of getting the benefit of the damage to a plaintiff's reputation of an imputation of such vagueness and generality, on the basis of proof of something at the lower end of that range. For that reason, I would not permit an amendment to include contextual imputation C. 64 Since the only contextual imputation which passes the test of specificity, as well as the tests of being different in substance from the plaintiff's imputations and capable of arising additionally to them, is contextual imputation B, it is clear in my opinion that this could not satisfy the third requirement, namely that the contextual imputation should be such that, being substantially true, it is capable of so affecting the plaintiff's reputation that any of the plaintiff's imputations did not further injure that reputation. To my mind, even the least serious of the plaintiff's imputations, namely imputation (b), must be more serious than contextual imputation B. 65 Accordingly, in my opinion the claimants must fail. I think error was shown in the primary judge's reasons, and substantial issues were raised; so the order I would propose is that leave to appeal be granted and the appeal dismissed. 66 Although there has been no application to amend by alleging a contextual imputation to the effect that the plaintiff assaulted a 12-year-old boy by threatening the use of an electrical device, or a contextual imputation that the plaintiff was in possession of a dangerous weapon, namely a stun gun, it may restrict further dispute if I briefly express a view on such contextual imputations. 67 The latter would in my opinion be capable of arising from the article, and would be sufficiently specific. 68 As regards the former, there would be a question whether the article was capable of conveying that imputation: it would have to be by inference from the allegation of use of the stun gun, the implication that the stun gun was used for the purpose of detaining the boy until the police arrived, and the inference that it was used as a threat as well as in actual application of force. I have some doubt about the matter, but on balance, I think the article is capable of conveying that imputation, and the question whether or not it did so would be for the tribunal of fact. 69 If those two further contextual imputations passed the other tests, there would be the question whether they, together with contextual imputation B, satisfied the third test. I am inclined to think they would satisfy that third test in relation to the plaintiff's imputation (b), but not in relation to the plaintiff's imputations (a) and (c). The result would, I think, be that such contextual imputations would be permitted to be raised if the opponent continued to press its imputation (b), but not if the opponent was content to rely only on its imputations (a) and (c). 70 ROLFE AJA: I agree with the Chief Justice.

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Prohibited Weapons Act 1989(NSW)

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