Lee v Fairfax Media Publications Pty Ltd

The relevant principles for form and capacity of contextual imputations

1. In Tauaifaga v TCN Channel Nine Pty Ltd [2013] NSWSC 8 at [7], McCallum J summarised the relevant principles as follows: "[7] It is sufficient for present purposes to repeat the succinct outline of propositions provided by Ms Chrysanthou, who appeared for the plaintiff in the present matter. Ms Chrysanthou submitted that the most useful authority is the decision of the defamation list judge, Nicholas J, in Ange v Fairfax Media Publications [2011] NSWSC 204, which may be distilled as follows: (a) a contextual imputation must differ in substance from the plaintiff's imputations (Ange at [25]); (b) the question is, would the ordinary reasonable reader or viewer have understood the matter complained of to convey at the same time both the plaintiff's imputations and the defendant's contextual imputation (Ange at [16]); (c) a contextual imputation will not be permitted if it is merely an alternative formulation to the plaintiff's imputation. The requirement that the imputations differ in substance is a necessary but not sufficient requirement - there must be a difference in kind (Ange at [19]); (d) if the defamatory sting of the contextual imputation is the same as the defamatory sting of the plaintiff's imputation, even if the contextual imputation is broader it will still be impermissible (Ange at [27]); (e) where there is more than one imputation relied upon by the plaintiff, it is necessary to consider all of the imputations separately and in combination to determine whether a contextual imputation is carried in addition to them (Ange at [28])." (See also Ange v Fairfax Media Publications [2011] NSWSC 204; Hyndes v Nationwide News Pty Limited [2011] NSWSC 633 at [28]-[31]; Kelly v Harbour Radio Pty Ltd [2013] NSWSC 9 at [2]-[3] and Liu v Fairfax Media Publications Pty Ltd [2013] NSWSC 7 at [17]-[22].)
2. In MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472, McCallum J notes at [9]-[12] that it is not acceptable for a defendant's contextual imputations are merely different ways of formulating the plaintiff's imputations at a higher or lower level of generality or specificity, or merely reformulations of the plaintiff's imputations drawn from precisely the same words.

The challenges to contextual imputations (1) and (2)

1. As to the first and second contextual imputations, the plaintiff first submits that to be a "person of interest" in an investigation is no different to being described as having conducted oneself in such a way to warrant investigation as a person of interest. They are, Mr Rasmussen submits, the same imputation.
2. However, the plaintiff's imputations do not assert that the plaintiff is a "person of interest"; they assert that he is reasonably suspected by police of committing the crime in two separate murder cases. The matter complained of actually uses the words "person of interest" to describe the inquiries police have made about the plaintiff. As to the murder of Mrs Joo Won Choi, police identified "17 persons of interest", according to paragraph 7, which goes on to state (in an unfortunate choice of wording) that these inquiries had not only failed to identify the person or persons, but were at a "dead end". The plaintiff was a "person of interest" (paragraph 16) on a second occasion when he was "tracked down as part of the Lin family murder investigation because he tutored the Lin children".
3. What is the difference of being a "person of interest" and being "reasonably suspected by the police" as being the person who committed the murder? While the term "person of interest" has a legal meaning which might potentially be ambiguous (Singleton v Ffrench (1986) 5 NSWLR 425), the use of the term "persons of interest" in paragraph 7 and again in paragraph 16 of the matter complained of makes it clear that "persons of interest" is a general term for all persons being looked at by police, in circumstances where the plaintiff is one of those persons. That is very different to being "reasonably suspected by police" of having committed one of both of these murders.
4. Mr Rasmussen also challenged these imputations, somewhat inconsistently, on the basis that the meaning of "person of interest" could never be as serious an imputation of being reasonably suspected of committing the crime. He submitted that imputations of being a "person of interest" were not capable of being conveyed.
5. I accept Mr Rasmussen's submissions that being a person of interest is an imputation of lesser seriousness to that of being reasonably suspected of actually having committed a crime. One of the issues for the jury at the trial will be whether the plaintiff's imputations of reasonable suspicion, or the defendants' contextual imputations of being a person of interest, more accurately distil the sting of the matter complained of.
6. The objections raised by Mr Rasmussen go to the heart of the nature of the defence of contextual justification. What is a defendant to do when the plaintiff seeks to pitch an imputation too high, in circumstances where the matter complained of states a lesser imputation (the truth of which may be more readily established) in clear terms? Is the defendant shut out from seeking to rely upon the truth of the less serious imputation, simply because the plaintiff has pleaded an imputation that may be found by the jury to be conveyed, in circumstances where the truth of the lesser imputation may weigh heavily, or indeed completely, against other imputations arguably less serious than being a person of interest in a murder investigation, such as becoming a fugitive from justice in suspicious circumstances?
7. In Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 397 Hunt J cites the example of a plaintiff pleading only an imputation that he has entered the country illegally, noting it is "a nice question for the jury to consider as to whether the effect of the truth of the imputation that the plaintiff is a liar is such as to say also that he entered the country illegally did not further injure his reputation". Hunt J goes on to explain the entitlement of a defendant to plead imputations which are "different gradations of seriousness of the same basic assertion" and that the defendant's entitlement to do so "rests upon the plaintiff's entitlement to do so" (at 398). The plaintiff is "both entitled to and obliged to plead different gradations of seriousness to meet whichever gradation is accepted by the jury as the way in which the matter complained of would have been understood by the ordinary reasonable reader" (at 398), and the defendant must be placed in the same situation as the plaintiff so far as concerns the pleading of imputations" (at 399). While his Honour's explanation relates to the pleading of contextual imputations under the repealed legislation (s 16 Defamation Act 1974 (NSW), these same entitlements apply to contextual imputations pleaded under the uniform legislation.
8. The defendants should not be shut out from conducting the trial on the basis that the contextual imputations of being a person of interest represent an asserted lesser seriousness of the plaintiff's imputations, particularly in circumstances where the imputations pleaded by the plaintiff include imputations such as investigation for fraud and being a fugitive from justice.
9. Mr Rasmussen next challenged whether contextual imputations (1) and (2) differ in substance, pointing out that the particulars of justification are the same.
10. Whether the plaintiff was a person of interest to police, as opposed to not being a person of interest but having so conducted himself that he should have been, is a clear distinction in meaning. The first can be satisfied by tendering evidence that the plaintiff was considered by police to be a person of interest. Proof of the second would be more onerous, in that it would require the defendants to establish that the plaintiff's conduct warranted police investigation even though police had not considered the plaintiff's conduct warranted his being regarded as a person of interest.
11. I am satisfied not only that contextual imputations (1) and (2) not only differ from each other but also, for the reasons set out above, differ in substance from imputation (f) ("The plaintiff was reasonably suspected by the police as having murdered Joo Won Choi.").

Contextual imputation (3)

1. This brings me to a consideration of the same arguments in relation to contextual imputation (3). Similarly, I am satisfied that an imputation of having so conducted himself to warrant investigation for fraud differs in substance from an imputation of being investigated by police for fraud, in that the first may be satisfied merely by tender of the evidence of the investigation by police, whether that investigation was meritorious or not, whereas the contextual imputation requires the defendant to establish, with regard to the conduct of the plaintiff, that his activities were such as to warrant investigation by police as to whether he had committed fraud.

The adequacy of particulars

1. Some of Mr Rasmussen's objections were based on the inadequacies of the particulars of justification set out in the Defence, and these objections have considerable force.
2. The defendants have set out two sets of particulars in the Defence. One relates to the defence of justification to imputation (i) ("The Plaintiff was being investigated by Police for fraud.") and contextual imputation (3) ("The Plaintiff had so conducted himself as to warrant investigation by the police as to whether he had committed fraud."). The other relates to the contextual imputations pleaded in relation to the Joo Won Choi murder. Mr Rasmussen complains that this style of particularisation of the justification of the imputations and contextual imputations in question not only shows these imputations do not differ in substance, but that the particularisation is inadequate.
3. I agree, in relation to imputation (i) and contextual imputation (3), that the defendants should specify the basis upon which it is asserted that the plaintiff was being investigated by police for fraud. This will require setting out in more detail than it is currently the case the circumstances in which the police were investigating the plaintiff for fraud. For example, if police made inquiries in this regard as to the asserted borrowing of money from Peter Choi's wife, and evidence is to be led at trial to this effect, it should be set out in the particulars. The sting of the imputation is that the plaintiff is being investigated by police for fraud, not whether that investigation was warranted.
4. Additionally, the particulars go on to state that the plaintiff was convicted on 7 February 2014 of offences (committed in 2013) of obtaining a financial advantage by deception. Those offences occurred a considerable number of years after the murder of Joo Won Choi and are unrelated.
5. While a defendant is entitled to rely upon conduct subsequent to publication of the matter complained of, I foresee difficulties at the trial unless the defendants are able to give greater specificity as to the investigation for fraud referred to in the matter complained of. I have granted leave to the defendants to provide further particulars in this regard.
6. The particulars in relation to the plaintiff being a person of interest in the murder of Joo Won Choi would similarly benefit from particulars setting out the facts, matters and circumstances relied upon to identify the plaintiff as one of the 17 persons of interest, which would require setting out the facts and matters leading to the statement set out in paragraph 7 and 16. This will be necessary for contextual imputation (1). Contextual imputation (2) should set out the facts, matters and circumstances relied upon to establish that, whether the plaintiff was a person of interest or not, his conduct had warranted such an investigation by police.
7. In Sims v Wran [1984] 1 NSWLR 317, Hunt J noted that particulars of justification should be set out with the precision of an indictment. In imputations as serious as those pleaded in these proceedings, that is essential. While the test for striking out a defence of justification is high (Fogarty v Nationwide News Pty Ltd [2013] WASC 477 at [14]), the current particulars fall well short of what should be provided. Additionally, if the defendants propose to rely upon the 2014 conviction of the plaintiff for fraud in relation to mitigation of damages, this conviction should be specifically referred to in the particulars, rather than the current general pleading.

Orders 1. Grant leave to the defendants to file an Amended Defence by 17 June 2015 including additional particulars of justification and amending contextual imputations to read: "(1) The Plaintiff was a person of interest in the investigation of the murder of Joo Won Choi. (2) The Plaintiff had so conducted himself as to warrant investigation by the police as a person of interest in the murder of Joo Won Choi. (3) The Plaintiff had so conducted himself as to warrant investigation by the police as to whether he had committed fraud." 1. Extend time for the plaintiff to provide answers to particulars of the Reply to 17 June 2015. 2. Grant the plaintiff leave to administer fresh interrogatories after provision of the Amended Defence. 3. Matter listed in the Defamation List on Thursday 18 June 2015 at 9:00am. 4. Costs reserved.

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. Decision last updated: 06 August 2015