Kutasi v Melbourne University Publishing Ltd t/a Melbourne University Press

Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 Chakravarti v Advertiser Newspapers Limited (1998) 154 ALR 294 Drummoyne Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Hadzel v de Waldorf (1970) 16 FLR 174 Harvey v John Fairfax Publications Pty Limited [2005] NSWCA 255 CASES CITED: Hepburn v TCN Channel Nine Pty Limited [1983] 2 NSWLR 682 John Fairfax & Sons Pty Ltd v Blake [2001] 53 NSWLR 541 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Monte v Mirror Newspapers [1979] 2 NSWLR 663 Young v Munro (Supreme Court of NSW, Levine J, 27 May 1995)

PARTIES: Kyle Kutasi (Plaintiff) Melbourne University Publishing Ltd t/a Melbourne University Press (Defendant)

COUNSEL: Clive Evatt (Plaintiff) L McCallum SC (Defendant)

SOLICITORS: Goddard & Co (Plaintiff) Frankel Lawyers (Defendant)

1 The plaintiff by way of Statement of Claim filed on 23 October 2006 brings proceedings for defamation concerning the publication in or about July 2006 of a book, "The Education of a Young Liberal", by the defendant.

2 The date of publication means that the argument concerning the form and capacity of the imputations falls to be considered under the Defamation Act 2005. Under the Defamation Act 1974 (NSW), it was mandatory to plead the imputations relied upon because Section 9(2) provides that publication of the defamatory imputations, rather than the defamatory publication, constitutes the plaintiff's cause of action. It gradually came to be accepted practice that plaintiffs in jurisdictions other than New South Wales, where the imputation was not the cause of action, should identify the defamatory meanings alleged to arise from the publication in question: see Hadzel v de Waldorf (1970) 16 FLR 174 (per Fox J at 179). However, as the High Court noted in Chakravarti v Advertiser Newspapers Limited (1998) 154 ALR 294 (at paragraph 21 per Brennan CJ and McHugh J), there is a degree of flexibility in relation to the question of capacity concerning these imputations, in the interest of fairness to the parties.

3 In my view, it is appropriate when considering actions brought under the Defamation Act 2005 (NSW) to have regard to these principles enunciated by the High Court when considering not only issues of capacity and but also of the form of imputations pleaded under the Defamation Act 2005 (NSW). One of the reasons for the abolition of the imputation of the cause of action in New South Wales was to avoid the endless sterile debate about issues not only of capacity but also of form, arguments which were described by Kirby J in Chakravarti at paragraph 144 as a "muddle" due to "over-nice attention to the pleading of imputations".

4 Since the defamation list was first established in the Supreme Court of New South Wales in 1979, there has been a series of decisions concerning whether or not when pleading an imputation a plaintiff should use the precise words in the matter complained of or some other word which is asserted to be a distillation of the true meaning. In Monte v Mirror Newspapers [1979] 2 NSWLR 663 at 678E Hunt J noted that "in very few cases" could the true meaning of an imputation be conveyed merely by repetition of the words actually used in the publication. A more flexible view was taken by Hutley JA in Hepburn v TCN Channel Nine Pty Limited [1983] 2 NSWLR 682 at 688B, when his Honour noted that it seemed "strange" to hear a defendant object to the plaintiff pleading an imputation using the defendant's own words on the basis that the defendant's own words were in some way ambiguous. Glass JA concurred, noting that he could see no reason why a plaintiff should be compelled to define the sense in which the defendant employed a general expression, adding that if the plaintiff is castigated as a criminal, he is not faced with the need to further define the charge: "The defendant is expected to know what his language conveyed and… in adopting an epithet with a spread of meanings, he will be understood as imputing them all" (at 693C).

5 In Young v Munro 27 May 1995 (Supreme Court of New South Wales, unreported) Levine J, the New South Wales Supreme Court Defamation List judge between 1992 and 2002, endorsed this practice of pleading the actual words of the publication where the allegations made were expressly stated rather than hinted at or implied, which was permitted by his Honour in relation to allegations that the plaintiff was involved in a "scam" and a "rip off".

6 The statement by Gleeson CJ in Drummoyne Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 that if the matter complained of essentially said that "X is disgusting" then the imputation "the plaintiff is disgusting" was sufficiently specific an imputation has generally been accepted as reflecting the relevant principles as to the degree of specificity required for pleading of an imputation.

7 The question is whether the imputations in the matter complained of are expressly stated or whether they are to be implied or inferred and thus require distillation or restatement of the precise acts or conditions attributed to the plaintiff.

8 In Harvey v John Fairfax Publications Pty Ltd (2005) NSWCA 255 at [118] ff, Hunt A-JA reviewed decisions on this issue and deplored what he called a "new pleading practice" to plead imputations in the words of the matter complained of "rather than… to identify the act or condition… which usually has to be distilled or inferred from these words (at [118])."

9 However, this does not mean that an allegation that is expressly stated, as opposed to merely being hinted at, cannot be expressed in this way.

10 The Court of Appeal in a series of decisions has considered the question of whether imputations which use the words of the matter complained of are sufficiently precise in form, and has continued to refer with approval to the statements by Glass JA and Hutley JA in Hepburn and of Gleeson CJ in Drummoyne. In John Fairfax & Son Pty Ltd v Blake [2001] 53 NSWLR 541, Hodgson JA (at [52] - [54]) referred to these decisions when holding there were instances where a plaintiff could use the actual words in an article and Spigelman CJ, with whom Rolfe A-JA agreed, considered that a generally pleaded contextual imputation could be pleaded where the particulars of justification afforded greater particularity.

11 In Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213, the respondent submitted, relying upon Harvey v John Fairfax Publications Pty Ltd (2005) NSWCA 255 at [126] - [129], that the use of the exact words in the matter complained of may obscure, rather than distil, any meaning and submitted that the jury's rejection of an imputation drafted in such a way could not be set aside as perverse. In rejecting this submission, McColl JA at [22] cited a passage from the judgment of McHugh J in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50 at [63] which her Honour considered so important that she underlined it: "[63] There is little doubt that, if an imputation had been pleaded that closely followed the text of the above quotation, no jury could reasonably reject either it or its defamatory content." (emphasis added). Her Honour went on to note that the overall impression of the matter complained of was such that "this was not a case where the use of the exact words of the broadcast lead to any obscurity." (at [29]). Similar findings were made by her Honour about other imputations that repeated the words of the matter complained of (at [31] and [36]).

12 What such cases demonstrate is that considerations of "practical justice" (Drummoyne at 137 per Gleeson CJ, Blake at 54 per Hodgson JA) may affect what is required by the same meanings in different situations.

13 A complaint often raised about the use of the precise word is that the defendant does not know the case he must put to justify the imputation. In Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343, the plaintiff pleaded the precise words "shonky" and the defendant successfully proved that it was true. Although Hunt A-JA expressed concern at the lack of clear meaning of this word, this was because the word did not have a long-settled dictionary meaning (at [5]), but after careful analysis his Honour was able to accept the 1981 Macquarie Dictionary definition as something or someone of dubious integrity or dishonesty and the use of this word from the actual publication in the imputation was therefore not a problem.

14 What these decisions demonstrate is that if the act or condition is stated expressly in the matter complained of, rather than implied or inferred, the need to distil a meaning different from the language of the matter complained of is lessened. The statement that "X is disgusting" is an express statement about X; a statement such as "We all know the way X behaves at parties" contains a meaning that must be distilled. There is no general rule that a plaintiff cannot plead an imputation which contains actual words from the matter complained of. Each publication must be considered individually, as Hodgson JA noted in Blake at [55] - [56].

15 The plaintiff in these proceedings pleads that the matter complained of gives rise to the following imputations: (a) The plaintiff has a criminal personality. (b) The plaintiff has a bestial personality. (c).The plaintiff is untrustworthy. (d) The plaintiff disparaged David Clarke behind his back by stating he tried to pimp off his daughters. (e) The plaintiff was a thug. (f) The plaintiff was a standover man. (g).The plaintiff behaved in a reprehensible way towards other members of his political party. (h) The plaintiff bribed people who were about to join the Liberal Party. (i) The plaintiff perpetuated branch rots on such a scale that even the right wing was forced to support an expulsion motion. (j) The plaintiff provoked violence. (k) The plaintiff was a violent person.

16 The defendant has challenged imputations 2(a), (b), (c), (e), (f), (I), (j) and (k) on essentially the same basis, namely that there is an obligation to identify the act or condition attributed to by the plaintiff with specificity. It is submitted on behalf of the defendant that whilst it is sometimes permissible to adopt the words used, where those words themselves identify the relevant act or condition, that is not what these imputations achieve. The defendant relies upon the principles set out in Harvey v John Fairfax Publications Pty Limited [2005] NSWCA 255 at [83] and [118] ff where Hunt A-JA has collected and discussed the authorities critical of pleading imputations in terms of the matter complained of.

17 I shall consider each of the imputations objected to in relation to this general objection. In addition, I shall consider objections to those of the imputations pleaded which the defendant asserts are not capable of being conveyed.

18 These imputations arise from the following portion of the matter complained of:- "[The plaintiff] was one of those boofy football players types who seemed to consist as much of fat as muscle; he was a hooter, a hollerer, a drinker - he seemed to live at the local pub - and a legitimate suspicion was that he started most of the fights. Bradden generally referred to [the plaintiff] as "sausage fingers" as he loathed him for his lack of finesse, but I was prepared to accept him for what he was and figured I needed all the friends I could find. But I had my doubts as well. There was something latent in [the plaintiff's] personality that I was pretty sure was more than mere crudeness. Something bestial perhaps, or criminal. I was never quite sure what motivated him to hang out with me either; that we came from different parts of the jungle must have been apparent to him."

19 The defendant submits that an imputation of having a bestial personality and a criminal personality cannot sufficiently identify the conduct which is asserted of and attributed to the plaintiff by the matter complained of.

20 If the word "disgusting" had been used instead of "bestial" this would have been a good example of precisely the kind of generalised smear that Gleeson CJ was adverting to in Drummoyne Council v ABC, supra, when his Honour expressed the view that an imputation "X is disgusting" is sufficiently specific. The matter complained of gives no clear idea as to what conduct of the plaintiff's goes beyond mere crudeness and becomes conduct which is bestial and which means he comes from a different part of the jungle to the author of the publication (which I assume is a suggestion that in the evolutionary process the plaintiff is in some way more closely related to his simian ancestors). The reference to criminal conduct is similarly vague, although there is a reference to his starting fights which, in light of the "jungle" reference paints him as some kind of predator.

21 Each of these imputations conveys a condition rather than an act and in my view it is appropriate that, given the express nature of the allegation and the lack of specificity in the matter complained of, this is one of those cases where the plaintiff should be entitled to adopt the precise words used to describe him. I am satisfied that these imputations are pleaded with sufficient precision.

22 It is an interesting argument whether one or both of these imputations is conveyed; the matter complained of appears to put them in the alternative. This argument was not however put to me on behalf of the defendant. It is appropriate that I should leave any such decision to the jury who will ultimately determine these issues.

23 This imputation, which is challenged on the grounds of incapacity to arise, is pleaded as being distilled from conduct referred to on page 192 of the matter complained of. This describes how the plaintiff betrays his close ally, Mr Caldwell, with the result that while they were once close allies they were "now enemies for life" (page 191). The author describes how he attempted to close the meeting but that the plaintiff "who didn't trust us any more than we trusted him" had secretly instructed his own supporters to ignore any instructions that were not in what is called "the agreed script". Even though the plaintiff was not technically able to close the meeting because he was not a member of the branch, those people who he had stacked the meeting with did what he said and this side-stepped the issue of whether the motion to close the meeting was valid if proposed by a non-branch member because there was simply no longer a quorum for the meeting.

24 The plaintiff is portrayed in this incident as a double dealer who has not only tricked his former close ally, Mr Caldwell, but also the author of the publication.

25 When read in context, it is arguable that this evidence conveys the imputation that the plaintiff is untrustworthy. The assertion by the defendant that all that is conveyed is a mutual lack of trust may be a submission that is accepted by the jury at the trial, but in my view there is sufficient material in the matter complained of to convey this imputation to warrant the imputation going to the jury.

26 The plaintiff submits that the imputations of the plaintiff is a thug and the plaintiff is a standover man do not differ in substance and the plaintiff should elect between them.

27 The matter complained of described an atmosphere which bristles with hostility that could at any moment bubble over into fisticuffs and that on a lot of occasions it did (page 222). The author refers to two assaults at Young Liberal Council, one involving a young woman who was pregnant and another involving a general melee with a dozen people "on their feet ready to start swinging until sanity reasserted itself". In addition there are "an almost countless number of incidents" of people being threatened with physical violence. This is referred to as being "the deliberate use of physical violence and intimidation as political tactics" (page 222). There would be a gang of thugs whose role was to stand over moderates and if necessary interfere, and the chief right wing culprit was the plaintiff.

28 The matter complained of differentiates between the actual violence (and it is made clear from the words introducing the plaintiff on page 182 that he could legitimately be suspected of starting most of the fights) and the use of threats of violence by way of intimidation, which is the role of a standover man.

29 While a thug is a person who assaults people, a standover man is someone who threatens to do so. The two are separate and distinct. In my view, these imputations sufficiently differ in substance.

30 The defendant complains that this imputation fails to distil the actual condition which it is alleged is attributed to the plaintiff.

31 What the matter complained of states (at page 293) that the plaintiff's conduct in perpetuating branch rorts is on such a scale as to revolt even the right wing faction of which he is a member, which was accordingly forced to support a motion to expel him. It was not made clear to me how the pleader had failed to distil an act attributable to the plaintiff when it is so clearly stated in the matter complained of that there could be no other way to say it.

32 The defendant complained that these imputations were ambiguous and did not arise. In the course of submissions, Mr Evatt for the plaintiff agreed that imputation 2(k) did not differ in substance from 2(e), in that a thug is a person who is a violent person, and accordingly I struck this imputation out.

33 An imputation that a person provokes violence is not impermissibly ambiguous. The defendant complained that it would not be possible to identify the conduct necessary to justify such an imputation, but having regard to the discussion of how such general imputations can be proved in Bass v TCN Channel Nine Pty Ltd, supra, it is an imputation which can be justified by any conduct which can be described as "violent"; a plaintiff pleads it at his or her peril.

Orders 1. Imputations 2(a) to 2(j) will go to the jury. 2. Imputation 2(k) struck out. 3. Defendant pay plaintiff's costs of this argument.

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.