LEIGHTON -v- GARNHAM [2012] WASC 314 (4 September 2012)

3 The first article entitled '"Aged care" issue to deceive residents' appeared as a file or page on the group's website. The article includes the following:

Earlier this week I received a copy of a letter sent out to 10,000 Kalamunda Shire residents by excouncillor John Giardina. His letter titled 'An important request' outlines the fact that there is a serious shortage of aged care accommodation within the Kalamunda Shire and urges residents to strongly support the rezoning and development proposal of 32 Gavour and Welshpool Roads.

Attached to Mr Giardina's letter were a series of dot points to help residents write comments on their submission forms. I found it disturbing that many of the dot points were contradictory and simply not true.

...

It saddens me that the elderly have been drawn into this issue and led to believe that this development is about them and 'aged care facilities'. If you read the detailed documentation (available at the shire of Kalamunda office) regarding this proposal it becomes quite clear that there is more to this development than meets the eye.

...

The developer has no obligation to make these properties available to the elderly within the shire of Kalamunda. Effectively, he would be able to sell them to whoever he likes as long as one person occupying the house is over 55.

Let's not fool ourselves, this isn't about aged care and helping the elderly in the Shire of Kalamunda. This is about making money (lots of money) at the expense of an entire communities wellbeing and environment.

4 The plaintiff pleads that in its natural and ordinary meaning the article gives rise to two defamatory imputations. The first is that the plaintiff in his capacity as the developer of the development is a liar. The second is that the plaintiff is a manipulative business person.

5 The defendants complain that the pleading in relation to the first article is defective in a number of ways. I will consider each of them in turn.

6 The third defendant submitted that [5] of the statement of claim improperly throws the whole article at the defendant. The third defendant submits that where the subject matter of an action for defamation is a long article, like the first article, the plaintiff must specify the particular passages said to be defamatory of him.

7 The third defendant's argument is derived from the judgment of Lord Denning MR in DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] 1 QB 21. In that case Lord Denning Mr explained that The Sunday Times colour supplement had included a front page picture and an article extending over 10 pages entitled 'The Great Drug Fraud'. It stated, amongst other things, that unidentified retail chemists were defrauding the National Health Service by substituting for expensive brand named drugs prescribed by doctors cheap imitation drugs supplied to them at a much lower cost and that the chemist then claimed reimbursement from the National Health Service for the higher cost of brand name drugs prescribed. The plaintiff company, a manufacturer and supplier of generic drugs, whose name was mentioned in the text issued a writ followed by a statement of claim against the publishers, claiming damages for defamation. It pleaded that the front page picture and four numbered pages of the article were defamatory of the company and the front page and three sheets of the supplement were delivered as a separate document attached to the statement of claim. No particular passages or illustrations were specifically pleaded as defamatory and no alleged natural or ordinary meanings were set out. The Court of Appeal of England and Wales held that the statement of claim should be struck out as embarrassing and defective because where the article was capable of many different meanings it was necessary to plead what was said to be the natural and ordinary meanings of the words complained of. Further, the court held that where the subject matter of an action for defamation was a long article the plaintiffs must specify the particular passages said to be defamatory of them. Lord Denning MR, with whom Phillimore and Cairns LJJ agreed, said:

[T]he pleading is defective because it throws and I use that word deliberately onto the defendants a long article without picking out the parts said to be defamatory. Some of the article is not defamatory of anyone at all. It describes only the method of importing drugs. Other parts of the article are defamatory of some unnamed chemists, but not of the plaintiffs at all. Yet other parts may be defamatory of the plaintiffs. To throw an article of that kind at the defendants and indeed at the court, without picking out the particular passages is highly embarrassing. Master Bickford Smith put it very sensibly:

'It is tremendously embarrassing to claim the whole of the article as a libel. There is a tremendous amount of the article which is not defamatory of your clients. You must pick out the particular bits and rely on the rest as extrinsic or surrounding facts giving a defamatory meaning to the words.'

That ruling is in accord with the practice as it has been for many years. The plaintiffs must specify the particular parts defamatory of them. For instance, in this particular case there is a reference to a 'Londonbased operation'. If the plaintiffs say that it means the plaintiffs, they should say so. They should insert '(meaning thereby the plaintiffs)'. There is a reference to 'the largest single network operating from a London suburb'. Do they say that means the plaintiffs? If they do, they should put in '(meaning thereby the plaintiffs)' [26] [27].

8 The third defendant referred to other authorities for the proposition that the plaintiff should not only specify the imputations upon which the plaintiff relies but also relate them to particular words in the article complained of. In Hadzel v De Waldorf (1970) 16 FLR 174, in an action for slander, the plaintiff pleaded the defamatory matter complained of without pleading the imputations to which the words gave rise. Fox J determined that the plaintiff should give particulars of the defamatory imputations he relied upon and added, without elaboration, that the imputations should be expressed as precisely as possible and, as far as practicable, be related to particular words in the statement of claim. In Spasojevic v Riznic [1982] 1 NSWLR 278 Hunt J considered an application for interrogatories. However, in the course of his Honour's judgment, Hunt J referred to the requirement that the plaintiff plead the imputations relied upon and the practice of requiring him to supply particulars of the passages relied upon to support those imputations. In Louis v Commonwealth of Australia and State of Tasmania [2000] TASSC 157 Evans J struck out a statement of claim prepared by the plaintiff who represented himself. Evans J described the statement of claim as a muddled, convoluted, conglomeration of allegations which are likely to embarrass the defendants. The statement of claim alleged that the plaintiff had been defamed in five different documents. In his judgment Evans J said it is necessary to plead the exact words complained of and that the pleading should clearly identify the particular words in each document which the plaintiff asserted were defamatory.

9 In Fuller v Jenkins (1990) 55 SASR 54 the plaintiff claimed damages for allegedly defamatory statements made in a national television programme. The plaintiff pleaded various imputations arising from the whole of the programme and annexed the transcript of the words spoken. The second and third defendants alleged they could not fully plead their defences or properly meet the plaintiff's case at trial and sought an order for the filing and delivery of a more explicit statement of claim indicating which pictures and words conveyed each alleged imputation. Mullighan J held that the master was correct in refusing such an order. After reviewing a number of authorities including DDSA Pharmaceuticals Ltd v Times Newspapers Ltd and Hadzel v De Waldorf Mullighan J said:

Obviously, in an appropriate case, the party alleging defamation must specify which words or parts of a publication are alleged to be defamatory of him and the innuendoes or imputations conveyed by the words in question. As these cases show, the defendant must be in a position not only to plead the appropriate defences but to know precisely what case he has to meet and to be able to prepare his case accordingly. It is sufficient to illustrate the need for appropriate particularity by reference to the defence of justification. He is entitled to such particularity so that he knows precisely what it is that he should justify and how that may be achieved. Without appropriate particularity he may not know until the end of the trial what it was that he needed to prove in order to make out that defence (58).

10 The cases referred to are illustrations of the principle that a court will order particulars of a pleading to control generality and make a broad allegation intelligible to the opposite party. There is no hard and fast rule to determine when and of what allegations particulars must be given. Each party must plead its case so as to identify the issues, the resolution of which will determine the outcome of the proceedings and to apprise the opposite party of the case to be met. The degree of particularity depends on commonsense and the circumstances of each case.

11 In this case it is not necessary, in order to inform the defendants of the case they have to meet to require the plaintiff to relate the pleaded imputations to particular words and the articles complained of. The first article is relatively short, occupying about two A4 pages of the statement of claim. It deals only with the subject of the relevant development. The plaintiff has pleaded the meanings which he says arise from the first article. I find that the pleading sufficiently identifies the publication complained of and the defamatory meanings which the plaintiff says arise from it. Particulars relating the pleaded imputations to particular words in the article complained of are not necessary either to define the issues or to inform the defendants of the case they have to meet. The statement of claim is clear enough for the defendants to be able to plead to it. Indeed, to require the plaintiff to chop up this relatively brief article in the manner proposed would result in a degree of semantic complexity which would serve no useful purpose and may well lead to confusion.

12 The article does not identify the plaintiff by name. The statement of claim gives the following particulars of identification:

7.2.1 the Plaintiff is identifiable as the developer of the Development to an unquantifiable number of unidentifiable readers of the First Article that either:

7.2.1.1. accessed the Website as and from 1 May 2011 (other postings by the Defendants from this date specifically identify the Plaintiff as the developer and would be read in conjunction with the First Article); or

7.2.1.2. had knowledge that the Plaintiff was the developer through the public consultation process and other action taken by the Plaintiff in relation to the Development from about 2004, including the Plaintiff's request to amend the Shire of Kalamunda Local Planning Scheme No 3 to rezone the Development site from Special Rural to Special Use (Aged Residential Care).

13 The first and second defendants submit that the pleading of identification is insufficient. First, the defendants say that it is not enough that the recipients of the statement understood it to refer to the plaintiff; the issue is whether reasonable people with their knowledge would so understand it: Gatley on Libel and Slander (11th ed) [7.3]. The defendants say that [7.2.1.1.] and [7.2.1.2.] plead conclusions, not material facts.

14 Where defamatory matter does not expressly refer to the plaintiff by name, extrinsic evidence must be given to connect the defamatory matter with the plaintiff. Witnesses can be called to testify that they understood, from reading the defamatory matter in the light of the facts and circumstances narrated and described, and their acquaintance with, and knowledge of, the plaintiff, that he was the person referred to: Gatley on Libel and Slander (11th ed) [34.19]. The evidence of the witnesses, even if accepted, is not conclusive. The test is an objective one, whether on the evidence an ordinary sensible person would draw the inference that the words referred to the plaintiff. Where the identity of the plaintiff would be known only to those with knowledge of special circumstances it is necessary for the plaintiff to prove that the words were published to persons with such knowledge, though this could be a matter of inference.

15 Where, as here, an allegedly defamatory publication refers to a person as 'the developer', it is sufficient for the plaintiff to plead that he was the developer and that some at least of the readers of the article knew that he was the developer. It may be sufficient to plead that readers knew he was the developer because they had read earlier publications which said that he was the developer. However, it is not necessary for the plaintiff to plead that he was in fact the developer. It may be sufficient if readers of the publication identified him as the developer because he had been named as the developer in earlier publications which they had read. That must be so where the defendant is responsible for both publications. By stating in the earlier publication that the plaintiff was the developer and in the subsequent publication things defamatory of the developer the defendant has caused readers of the two publications to understand that the defamatory matter refers to the plaintiff. In those circumstances the plaintiff may maintain an action against the defendant, even if the defendant had incorrectly named the plaintiff as the developer.

16 Where a defendant publishes material defamatory of an unidentified person and subsequently publishes, or is responsible for the publication of, material that identifies the plaintiff as the person referred to then the plaintiff may rely upon the second publication as an extrinsic fact to establish identification: Hayward v Thompson [1982] 1 QB 47; Chase v News Group Newspapers Ltd [2002] EWHC 2209 (QB). That is so if the plaintiff can establish that those who read the first publication, or at least some of them, read the subsequent publication or it can be inferred that they did so.

17 This part of the case concerns material on the internet. The way in which readers access material on the internet is different from the way in which people access material in newspapers. Generally, most people who read a newspaper do so on the day of its publication or shortly thereafter. The internet is different. People often access material on the internet which was posted some time earlier, even a considerable time earlier. The first article was published on the group's website from 11 April 2011. The pages which identified the plaintiff as the developer could be accessed on the website from 1 May 2011. It would be open to the court to find at trial that the plaintiff was identified as the developer in the first article by any reader who read the article after having read the website pages which identified the plaintiff as the developer. Furthermore, in accordance with the principle in Hayward v Thompson, the court may find the plaintiff was identified as the developer in the first article by any reader who read the article and later read the website pages which identified the plaintiff as the developer.

18 The particulars of identification in [7] of the amended statement of claim are not adequate. The plaintiff might plead, and lead evidence, that some readers of the first article also read the website pages which identified the plaintiff as the developer. Alternatively, in some circumstances, the plaintiff may plead that it is to be inferred that those who read the first article, or at least some of them, knew the identity of the plaintiff from the website pages which identified him as the developer. Whether or not such a pleading is permissible may depend upon the relationship between the website pages and the links between them and whether or not there is anything about the website pages that made it likely that a person who read the first article on one would read the material identifying the developer on the other. However, the current pleading neither pleads that some of the readers of the first article read the website pages that identified the plaintiff as the developer nor that it is to be inferred that some did so and the matters from which that is to be inferred.

19 The present particulars are that the plaintiff 'is identifiable as the developer'. In effect, the pleading says that a person who read both the first article and the website pages identifying the plaintiff as the developer would identify the plaintiff as the developer referred to in the first article but stops short of pleading that anyone did so or that it is to be inferred that they did so and why it is to be inferred.

20 The particulars in [7.2.1.2.] are deficient for the further reason that they lack the necessary particularity. It would be necessary to identify 'the public consultation process' and 'other action taken by the plaintiff in relation to the development from about 2004'. It would be further necessary to plead that some at least of the readers of the first article had knowledge of those matters and how.

21 The particulars of identification to [7] should be struck out. It follows that [7] should be struck out because in the absence of proper particulars of identification, the statement of claim fails to disclose that the first article was defamatory of the plaintiff.

22 The defendants submit that the first article is not capable of giving rise to the pleaded imputations. The task of the court was described by Lord Phillips MR who said in Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 where he adopted part of the judgment of Eady J:

The court should give the article the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article once. Hypothetical reasonable readers should not be treated as either naïve or unduly suspicious. They should be treated as being capable of reading between the lines and engaging in some loose thinking, but not as being avid for scandal. The court should avoid an overelaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or accounts. Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. The court should certainly not take a too literal approach to its task [7].

23 An imputation will be struck out only if it is plainly incapable of being conveyed by the words complained of or if the imputation is so clearly untenable that it cannot possibly succeed: Buckeridge v Walter [2006] WASCA 22 [2] (Steytler P). In Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 Gleeson CJ, McHugh, Gummow and Heydon JJ, approved the following extract from the judgment of McPherson JA in the Queensland Court of Appeal:

Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken [6].

24 The first article is entitled '"Aged care" issue to deceive residents'. The aged care issue refers to whether the property at Gavour and Welshpool Roads should be rezoned and the proposed development should proceed. The residents refers to the residents of the Shire of Kalamunda. The title conveys that somebody has used the aged care issue to deceive the residents. The opening paragraph of the article refers to a letter sent out to Kalamunda Shire residents by excouncillor Giardina. His letter urged residents to support the rezoning and redevelopment proposal. The article says that attached to Mr Giardina's letter were a series of dot points and many of the dot points were contradictory and not true. The article then sets out three of the dot points and why each of them is contradictory or not true. Thus far the article refers only to Mr Giardina and insofar as criticism is being made the ordinary fair minded reader would understand that it was being directed at Mr Giardina. However, the article then goes on to refer to the development proposal and it having been twice before rejected. The article says that the elderly have been led to believe that the development is about them and aged care facilities but if you read the detailed documentation regarding the proposal it is clear that there is more to the development than meets the eye. It is arguable that the documentation would be understood by a reader to refer to documents put forward by the developer in support of the development application. The article then refers to a letter from the principal solicitor at the Environmental Defenders Office, which says that the documentation submitted with the rezoning application gives the impression that Council is being asked to approve a specific proposal, but the legal effect of approving the rezoning application would be to change the zoning and under the new zoning the only constraint affecting residential development would be the requirement for development approval and that dwellings must be occupied by at least one person over 55. The article states that the developer has no obligation to make these properties available to the elderly, he would be able to sell them to whoever he likes as long as one person occupying the house is over 55. The article concludes:

Lets not fool ourselves, this isn't about aged care and helping the elderly in the Shire of Kalamunda. This is about making money (lots of money) at the expense of an entire community's wellbeing and environment.

It is arguable that the criticism in the final paragraphs of the article would be understood by a reader to be directed at the developer.

25 The final paragraphs taken with the title, arguably convey that the developer deceived the residents. However, the pleaded imputation is that the plaintiff is a liar. A liar is a person who tells lies. The plaintiff says that to deceive means to make a person believe what is false, mislead purposely or to mislead by a false appearance or statement. The plaintiff says that to deceive can be 'further distilled' to mean that the plaintiff is a liar.

26 The defendants say that the article is not capable of giving rise to the imputation that the plaintiff is a liar, that is, that he tells or has told lies. The defendants say that there is nothing in the article from which it can be reasonably inferred that the plaintiff has told a lie, that is, a deliberate falsehood.

27 The imputation that the plaintiff is a liar should be struck out on the ground that it is incapable of being conveyed by the words complained of. Alternatively, if I am wrong in that conclusion, the imputation should be struck out on the ground that the imputation may prejudice, embarrass or delay the fair trial of the action because the imputation is imprecise and ambiguous and liable to cause confusion.

28 Lying, deception, withholding information, concealing information, keeping someone in the dark, spin and half truths are related but different notions. Standard dictionary definitions of lying say that a lie is a false statement made with the intent to deceive others. The first definition of a lie in both the online Oxford English Dictionary (OED) and the online Macquarie Dictionary is: 'a false statement made with intent to deceive'. In 'The definition of lying and deception' in the online Stanford Encyclopaedia of Philosophy, (1st ed, 2008), Professor James Mahon points out several problems with the OED definition of lying. For example, according to the OED definition, a person who makes a statement that she believes to be true a person who makes a truthful statement with the intention to deceive another person, is lying if, unbeknownst to her, the statement is false. Professor Mahon refers to commonly accepted definitions of lying that avoid these problems and says that the most common definition of lying is 'to make a believedfalse statement to another person with the intention that that other person believe that statement to be true'. According to this definition and the dictionary definitions, a necessary condition of lying is that lying requires that a person make a statement. Since lying requires that a person make a statement, it is not possible for a person to lie by omission. Professor Mahon acknowledges that other academics have objected that the making of a statement is not necessary for lying. Any form of behaviour, the function of which is to make others form false beliefs or to deprive them of true beliefs, is lying according to some. This behaviour can simply be a matter of withholding information, without saying anything untruthful to others.

29 The purpose of pleading imputations is to define the issues and inform the defendants of the case they have to meet. The meaning of words used in pleading an imputation should be taken to be their common or usual meaning unless the imputation is pleaded in a way that makes it clear that some other meaning is intended.

30 A condition of the usual or common meaning of lying requires that a person make a statement. In Lying and Deception, Theory and Practice, Oxford University Press, 2010, Professor Thomas L Carson writes:

In order to tell a lie, one must make a false statement. Showing that a statement is true is always sufficient to counter the accusation that one has told a lie. Often people choose their words with great care in order to mislead others without saying anything that is literally false ... Often, people engage in this kind of verbal trickery because they take themselves to avoid lying and they regard lying as morally worse than deception. It is difficult to account for this widespread phenomenon unless we concede that ordinary language does not count such statements as lies.

31 The first article is not capable of giving rise to the meaning that the plaintiff is a liar in the sense of making a believedfalse statement to another person with the intention that that other person believe that the statement to be true. I did not understand counsel for the plaintiff to argue otherwise. The first article is not capable of giving rise to the meaning that the plaintiff is a liar, in the common or usual meaning of that word, and should be struck out.

32 If I am wrong in that conclusion and the imputation that the plaintiff is a liar includes the meaning that the plaintiff has purposely misled or deceived residents by withholding information, concealing information, keeping them in the dark, engaging in spin or half truths or in some other way, then the imputation is ambiguous and should be struck out on the ground that it may prejudice, embarrass or delay the fair trial of the action.

33 The purpose of an imputation is to specify the meaning which the defendant alleges the matter complained of, which may be imprecise or rambling, conveys. In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 136 Gleeson CJ said that ordinary principles of pleading, fairness to a defendant, and the need for clarity of issues at a trial, all require adequate specification by a plaintiff of the imputation or imputations sued upon. Gleeson CJ explained:

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 (137).

As I have indicated, the question is ordinarily one to be resolved by

considerations of practical justice in the circumstances of a particular case,

rather than considerations of the possibility of linguistic refinement. I agree with the test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155 where his Honour said:

'... 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.' (138)

34 Imputations pleaded in respect of words complained of as defamatory must be understood and construed in the context of the whole matter complained of. In Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) NSWLR 165 Mason P, with whom Wood CJ at CL agreed, said:

The pleader's task is to capture the essence of the specific matters imputed in relation to the plaintiff. Necessarily there will be questions of degree and 'if a problem arises, the solution will usually be found in considerations of practical justice rather than philology' (per Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corp (1990) 21 NSWLR 135 at 137). In this as in other areas, pleadings serve the ends of justice: they must not be permitted to assume an independent selfreferential function. The pleaded imputation remains 'the statement which, as the plaintiff alleges, the publication gives the reader or viewer to understand' (per Mahoney JA in Singleton v French (1986) 5 NSWLR 425 at 428). It is not a straitjacket, although the rules of procedural fairness place limits upon judge and jury's capacity to enlarge the issues.

A plaintiff's pleaded imputations set the scene for the contest which follows. The defendant's pleadings will respond to the asserted causes of action. The jury will have to decide whether the matter complained of carries the imputation and, if so, whether it is defamatory or the plaintiff. Defences as to truth, contextual truth and comment are also responsive to the pleaded imputations (Defamation Act, s15(2), s16(2), New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340). But even here, the plaintiff will be bound by the substance, as distinct from the precise words of the pleaded imputation (see Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771).

The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture). The imputation will often be implicit in the text (see generally Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195-196).

These considerations point to the broader issue of principle. Words, a fortiori words not found in the text, are necessarily to be read in context. This is a basic tenet of literary and legal construction (Metropolitan Gas Co v Federated Gas Employees' Industrial Union [1925] HCA 5; (1925) 35 CLR 449 at 455, Minister for Immigration v Eshetu (1999) 197 CLR 611 at 534). Holmes J reminds us that:

A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used: Towne v Eisner 254 US 418, 425 (1918).

Context may clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true (see Fleming, The Law of Torts 7th ed p588) [18] [22].

35 In this case the context of the first article obscures and causes confusion about the meaning of the imputation that the plaintiff is a liar rather than clarifying the imputation. The article does not put forward or refer to any statements by the plaintiff which are said to be false. The plaintiff says that the gist of the article is that the plaintiff has deceived the residents or made them believe what is false or purposely misled them.

36 The imputation is likely to cause confusion. The defendant does not know what case it has to meet and the court does not know what case the plaintiff will put forward. That has implications for the defences that the defendants may put forward. For example, the defendants may wish to plead that the imputation that the plaintiff misled or deceived residents is true but not seek to justify an imputation that the plaintiff lied to the residents in the sense of having made false statements to deceive them. Furthermore, the precise meaning of the imputation is relevant to the question of damages. Although commonsense morality finds deception in general to be morally objectionable many people are inclined to consider lying to be especially pernicious. Thus, the likely damages, and consideration of any offer to settle, will be affected by whether the imputation of lying means making statements to the residents that the plaintiff believed to be false or deceiving the residents by half truths and omissions.

Form of imputation - in his capacity as the developer of the development

37 The defendants further object to the form of the imputation that the plaintiff 'in his capacity as the developer of the Development' is a liar. That formulation is apt to cause confusion. In the course of argument counsel for the plaintiff submitted that the imputation is intended to say that the plaintiff as developer told lies. The meaning would be permissibly clear if it was framed in terms such as the plaintiff deceived residents about the development or that the plaintiff as developer deceived the residents or some other formulation that refers to the conduct of the plaintiff in promoting or advancing the proposed development. However, the phrase 'in his capacity as the developer of the Development is a liar' is confusing and may prejudice or embarrass the fair trial of the action.

Second imputation - is a manipulative business person

38 The essence of the second imputation is that the plaintiff is manipulative. The plaintiff submits that whilst the first article must be taken as a whole, the last two paragraphs convey to readers that the plaintiff is, on the one hand, maintaining the guise of assisting the Wattle Grove community with aged care when in fact the plaintiff is simply interested in making money by exploiting the loophole set out in the third last paragraph of the article. The plaintiff says that that amounts to being manipulative. I accept that the plaintiff's contentions are arguable.

39 The defendants object to the imputation that the plaintiff is a manipulative business person on the ground that the article does not state that the plaintiff is a business person. A business person is a person who engages in business. 'Business' is a word which is capable of having a broad meaning. As Mason CJ, Gaudron and McHugh JJ said in Re Australian Industrial Relations Commission; Ex Parte Australian Transport Officers Federation [1990] HCA 52; (1990) 171 CLR 216, 226 'of all words, the word "business" is notorious for taking its colour and its content from its surroundings ...'. Street CJ, Roper CJ in Eq and Herron J said in Hyde v Sullivan (1956) SR (NSW) 113, 119:

Speaking generally, the phrase 'to carry on a business' means to conduct some form of commercial enterprise, systematically and regularly, with a view to profit and implicit in this idea are the features of continuity and system.

On the other hand, it is possible that a business may be carried on by means of a 'one-off' transaction without repeated acts of buying and selling if what is done is of sufficient substance and of such a character to identify it as a trading operation: Burrawong Investments Pty Ltd v Lindsay [2002] QSC 82 [102] [105], Muir J citing Federal Commissioner of Taxation v Sir Hubert's Island Pty Ltd (in liq) (1978) 138 CLR 210, 237 238 (Jacobs J).

40 Imputations pleaded must be understood and construed in the context of the matter complained of: Greek Herald Pty Ltd v Nikolopoulos [18] [22] (Mason P). The article does not state expressly that the plaintiff is a business person but it refers to 'the developer'. The article says that the development is for aged care facilities and that it will consist of multiple dwellings. The article says that the developer would be able to sell the dwellings and that the development is about making lots of money. It is arguable that that would convey to an ordinary reasonable reader that the developer is a business person in the sense of a person engaged in a substantial transaction or project with a view to profit. The challenge to imputation 7.2 fails. However, as I have already stated [7] should be struck out because in the absence of proper particulars of identification, the statement of claim fails to disclose that the first article was defamatory of the plaintiff.

41 The second article is entitled 'High End Aged Care in Wattle Grove? The Devil is in Detail'. The article was published on the website. The defendants object to the pleading in relation to the second article on a number of grounds.

42 The third defendant objects that [9] and [11] of the statement of claim disclose no cause of action and are vague and embarrassing in that they throw the whole article at the defendant and do not identify or select the words or passages giving rise to the allegedly defamatory natural and ordinary meaning.

43 I reject that submission for the same reasons that I reject that argument in relation to the first article. The article occupies approximately two and a half A4 pages of print in 14 point including the heading. The subject matter is the development and an open letter from the plaintiff to the Minister for Planning that it is claimed fails to tell the whole story and deliberately omits a number of crucial facts about the aged care development. The pleading sufficiently identifies the publication complained of and the defamatory meanings which the plaintiff says arises from it. Particulars relating the pleaded imputations to particular words and the article complained of are not necessary to define the issues or to allow the defendants to plead or to know the case they have to meet.

44 The defendants object to the way in which the plaintiff has pleaded the second article. They apply for a 'strike in' order that the plaintiff include as part of the publication presently pleaded an open letter from Mr Leighton to the Minister for Planning (the Open Letter).

45 The second article appears as a page on the Wattle Grove Action Group's website. The web page includes a hyperlink embedded under an URL at the end of the article. The link takes the reader to a separate web page which displays the Open Letter. Exhibit 1 is a screen dump of the website page displaying the second article. On the right hand side of the page, immediately under the title, is a contracted or shrunken image of the Open Letter. It is contracted to the extent that it is not readable except for the words 'Open Letter to Hon John Day MLA The Minister for Planning, Member for Kalamunda'.

46 The defendants challenge the pleading and submit that the plaintiff should plead the second article and the Open Letter as a single, composite publication. In substance, their application is for an order that the pleading of the second article in the statement of claim be struck out as prejudicial and embarrassing by reason of the omission of the Open Letter, which is said to form part of it.

47 The test formulated in Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; (2006) 66 NSWLR 605 [69] by Tobias JA is:

... the question is whether the matter complained of was capable of constituting the whole of the context from which a body of ordinary reasonable listeners would be concerned to determine the meaning of what was broadcast. If that is the only view reasonably open or if reasonable minds could differ as to whether it was so capable then, as was observed by Simpson J in Phelps and by Hodgson JA in The Age Corporation, it was open to the plaintiff to plead the matter complained of as a single broadcast containing the whole of the context in which to determine whether the pleaded imputations were conveyed by that matter.

48 In Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 the plaintiff brought defamation proceedings against defendants arising out of the publication of a series of pieces concerning the propriety of the plaintiff's business dealings. One of the matters complained of was an article which appeared as a page on a website. The web page included a hyperlink, which took the reader to a separate web page, which had been pleaded as a separate publication by the plaintiff. The defendants contended that the plaintiff was obliged to plead the second page as part of the first matter complained of. McCallum J observed that a critical consideration in the determination of the question was the way in which people view material on the internet. McCallum J referred to Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 where the High Court held that, in the case of publication on the internet, it is only when material is downloaded onto the computer of the reader that there is a publication of the material for the purpose of the law of defamation. McCallum J concluded that once it is appreciated that publication of a web page is complete when it is downloaded onto the reader's computer, it followed that it was open to the plaintiff to plead each separate web page as a separate matter complained of. The plaintiff would have a cause of action if a single person downloaded only that page, even if it contained the clearest invitation and internal reference to other material available on the same website.

49 McCallum J referred to the decision of the Full Court of this court in The Buddhist Society of Western Australia Inc v Bristile [2000] WASCA 210. In that case the plaintiff brought a defamation action in respect of the publication on a website maintained by the first defendant of two letters protesting government approvals for the plaintiff to truck clay from its clay pit to its brick manufacturing plant by means of heavy haulage vehicles on a route which ran past the defendant's monastery and a page which set out the history of the development of the clay pit and haulage activities and the adverse consequences to the monastery and to the public of the haulage activities. Each of the letters and the statement of history and consequences was a separate page or file on the website. In its statement of claim the plaintiff treated each of them as a separate publication. By its defence the defendant pleaded the Lange defence with respect to all three items, treating them as a single composite publication. The defendant argued before the Full Court that because in an internet site each file on the site on a particular subject matter is linked to each other file, all files should be regarded as one item for the purposes of defamation law. Anderson and Owen JJ rejected that argument. They said:

The letter, or proforma letter, is not part of the other two items. It is drawn up to be read as a single document, not as part of one large document. It has its own substantive identity. Its peculiar purpose is not to inform the public, or any section of the public, about political or governmental matters. It is drafted as a discreet written communication unconnected in form or by reference to its content to any other document. In its electronic existence as part of the content of the website, it is a separate 'file' and is intended to be, and would be, called up and viewed as a separate article. It has an individualness of form and purpose. We are of the opinion that in the context of the law of defamation, it must stand or fall on its own. We would not uphold this ground of appeal [10].

50 Wheeler J said that the question of how one determines the 'context' of a document, which appears on the worldwide web is an open one, the answer to which may depend upon evidence. Her Honour considered that one of the letters might, depending upon the evidence adduced at trial, be able to be seen as part of a package of information which forms part of a series of linked communications about political matters. Her Honour said that was particularly so since it was 'boxed' together with other documents which had a more strongly political orientation in the 'please save our monastery' box on the Home Page and because the links (at the foot of the letter) referred the reader directly to the history and consequences page. Her Honour considered that the nature of the document was also relevant. Her Honour considered that there were reasons to regard one of the letters as a single distinctive publication but it was enough on a strike out application that it was arguable that the document may be sufficiently coloured by its context to be regarded as part of a single package.

51 In this case there are features of the second article and the Open Letter which make it arguable that they are a single composite publication. The second article refers to the Open Letter and takes the form of a response to the letter. Furthermore, a contracted, though unreadable, image of the letter appears as part of the article and there is a hyperlink from the article to the letter. On the other hand, it is arguable that the second article and the Open Letter are separate publications. They are separate files or pages on the website. Each could be downloaded and read without downloading or reading the other. The second article and the Open Letter are written by different authors. The second article purports to be a selfcontained article which can be comprehended without reference to the Open Letter. The form of the article is to set out the author's interpretation of statements in the letter and the author's response to them. It is the author's response, or the author's assertion that the letter withholds or conceals information or the contrast between the author's interpretation of what the letter says and the author's response that gives rise to the allegedly defamatory imputation. If the article does not constitute a true and fair view of the letter that does not affect the meaning of the article.

52 A body of reasonably minded readers could regard the second article as a separate, selfcontained publication containing the whole of what the plaintiff is complaining about. The view that the second article and the Open Letter constitute one publication containing the whole context in which the meaning or sense of the words used in the second article is to be understood by a body of ordinary reasonable readers is not the only view reasonably open.

53 It is therefore open to the plaintiff to plead the second article as a single publication containing the whole of the context in which to determine whether the pleaded imputations were conveyed by that matter. The fact that the plaintiff has not included the Open Letter does not prevent its tender by the defendants at trial in support of any defences to which it may be relevant.

54 The plaintiff pleads that the second article gives rise to the imputation that the plaintiff, in his capacity as developer of the development, is a liar. The defendants object that the second article is not capable of giving rise to that imputation. The defendants say that the criticism levelled at the plaintiff in the second article is a failure to tell the complete story by deliberately omitting some facts but the facts set out in the Open Letter, as stated by the plaintiff, are not challenged as being false. That is clear from the 'our response' content of the second article. Accordingly, the defendants submit that the words are incapable of giving rise to an imputation that the plaintiff told deliberate falsehoods, that is, he lied.

55 The plaintiff does not claim that the article attributes to the plaintiff that he made false statements. The plaintiff says that the article conveys to readers that the plaintiff is not being open about critical elements hidden amongst the details of the development, or in other words, the plaintiff has not been forthcoming with all the details of the development. The plaintiff says that the second article taken as a whole conveys that the plaintiff is failing to tell the whole story and deliberately omits a number of crucial facts. The plaintiff submits that that amounts to lying.

56 For the reasons stated in relation to the first article, I find that the second article is not capable of meaning or being understood to mean that the plaintiff is a liar, in the usual and commonly understood sense of making a believedfalse statement to residents with the intention that they believe the statement to be true. In any event, if I am wrong in that conclusion for the reasons stated in relation to the first article, the imputation that the plaintiff is a liar may prejudice, embarrass or delay the fair trial of the action because the imputation, in the context of the article, is imprecise and ambiguous.

57 The form of the imputation pleaded in [11], insofar as it refers to the plaintiff, in his capacity as developer of the Development is embarrassing for the same reasons as the imputation pleaded in [7.1] is embarrassing. For the reasons stated, [11] should be struck out.

58 The third article is an advertisement. The plaintiff complains of two separate publications of the advertisement. The first matter complained of is a publication of the advertisement in the weekly community newspaper the Kalamunda Reporter. The second matter complained of is an electronic version of the advertisement which appears on a page on the Wattle Grove Action Group's website below the heading 'Response to Ross Leighton's letter to Planning Minister John Day' and the following sentences:

The Wattle Grove Action Group will have the following piece published in the next edition of the Kalamunda Reporter. We felt it important to clear up the misinformation that has spread throughout the Shire of Kalamunda on this issue. Please click on the image below to download and read a copy of our response.

The web page includes a hyperlink which takes the reader to a separate web page which displays the advertisement.

59 A necessary element of a cause of action for defamation is the publication, that is, communication of the defamatory matter to a third person. Each communication of the material is a separate publication and gives rise to a separate cause of action. Theoretically, in the case of an edition of a newspaper there are separate publications to each person to whom the matter is communicated. However, under modern pleading a plaintiff pleads a single cause of action against a newspaper defendant seeking damages in relation to the entire issue of the newspaper. Where material has been issued to the public in the form of a mass circulation newspaper, the publication will be presumed and the plaintiff is not required to plead or prove publication to particular persons. But the same is not true of publication on a website. There may be evidence as to how many times the material was accessed or it may be legitimate to draw an inference about that in the circumstances, but there is no presumption that in such a case there has been a substantial publication within the jurisdiction: see AlAmoudi v Brisard [2006] EWHC 1062 (QB). The plaintiff recognises that material on a website page is published each time it is downloaded from the website. The plaintiff pleads as much in [15] of his amended statement of claim.

60 The plaintiff pleads publication of the third article in the following way:

1. The defendants and each of them wrote and caused to be published the full page advertisement entitled 'Addressing the Myths around Aged Care in Wattle Grove' of and concerning the plaintiffs, the authorship of which the defendants have attributed to the anonymously named 'Wattle Grove Vision', in the following way:

13.1 On or about 24 May 2011 at page 8 of the weekly community newspaper the 'Kalamunda Report'; and

13.2 On or about 23 May 2011 to users of the website (and continue to cause to be published to persons accessing the website on or after 23 May 2011) under the heading 'Response to Ross Leighton's letter to Planning Minister John Day'.

The website reads as follows:

...

[Users of the website are able to download a link to the advertisement set out below].

The advertisement reads as follows:

...

61 It is embarrassing to plead the publication of the advertisement in the Kalamunda Reporter newspaper and the publication of the advertisement together with editorial comment on a website in the same paragraph of the statement of claim. Order 20 r 7(2) of the Rules of the Supreme Court 1971 (WA) provides that each pleading must, if necessary, be divided into paragraphs numbered consecutively, each allegation being so far as convenient contained in a separate paragraph. The publication of the advertisement in the Kalamunda Reporter and the publication of the advertisement, together with editorial comment on the website, are separate allegations and should be pleaded in separate paragraphs. The defendants may wish to plead differently in relation to the publication in the newspaper than the publication on the website. The plaintiff is not named in the advertisement. Whether or not readers of the advertisement would have identified the plaintiff as the developer referred to in the advertisement might be affected by whether or not they had, or may be inferred to have, read other pages on the website which identified the plaintiff as the developer. The inference that readers of the advertisement read the pages on the website identifying the plaintiff as the developer might be more readily drawn in the case of readers of the advertisement on the website than readers of the advertisement in the newspaper. Whether the plaintiff is identified as the developer might also be affected by the heading 'response to Ross Leighton's letter to Planning Minister John Day' which appears on the website but not in the newspaper. The meaning of the advertisement published on the website might be affected by the words preceding it on the website but not in the newspaper. Those words include 'response to Ross Leighton's letter to Planning Minister John Day' and 'we felt it important to clear up the misinformation that has spread throughout the Shire of Kalamunda on this issue' which do not appear in the newspaper. These differences between the publication of the advertisement in the newspaper and on the website compound the confusion which arises from pleading the two separate publications in one paragraph of the statement of claim.

62 The pleading gives rise to a further confusion. Paragraph 13.2 of the statement of claim pleads words which preceded the advertisement on the website but are not part of the third article, which is defined to be the advertisement. The following paragraphs of the statement of claim then refer to 'the third article'. It is not clear whether the plaintiff relies upon the heading and introduction which precede the advertisement on the website.

63 The third article does not identify the plaintiff by name. In [16] of the statement of claim the plaintiff pleads particulars of identification. The particulars are similar to the particulars of identification in [7] in that they commence with the plea:

The plaintiff is identifiable as the developer of the Development to an unquantifiable number of unidentifiable readers of the Third Article that either ...

64 As I have stated earlier in these reasons that plea is inadequate. The particulars of identification in [16] neither plead that some of the readers of the third article read the website pages that identified the plaintiff as the developer nor that it is to be inferred that some did so. The present particulars are that the plaintiff is 'identifiable as the developer'. In effect, the pleading says that a person who read both the first article and the website pages identifying the plaintiff as the developer would identify the plaintiff as the developer referred to in the fourth article but stops short of pleading that anyone did so or that it is to be inferred that they did so. The particulars in [16.1.3] are further defective for the same reason that the particulars in [7.2.1.2] are defective.

65 The plaintiff pleads that in its natural and ordinary meaning the third article meant and was understood to mean that the plaintiff, in his capacity as the developer of the Development, is a liar.

66 The defendants submit that the third article is not capable of giving rise to that imputation. The defendants submit that the criticism of the plaintiff in the article is that he has spread misinformation about the development and made emotional pleas for aged care facilities. The defendants submit that the third article is not capable of conveying the meaning that the plaintiff is a liar, that is, that he has made statements believed to be false to residents with the intention of deceiving them.

67 The third article, or advertisement, is entitled 'Addressing the Myths around Aged Care in Wattle Grove'. In this context a myth is a widespread but untrue or erroneous story or belief; a widely held misconception; a misrepresentation of the truth: online OED. The plaintiff submits that the advertisement sets out a series of 'myths', which would be understood to have been created by the plaintiff, and 'realities' which would be understood by a reader to mean the 'contrast in truth'. Those myths and realities follow the introductory words:

The proposal to rezone lot 500 (32 Gavour Road) Welshpool Road, Wattle Grove has been clouded with misinformation and emotional pleas for high care facilities. While everyone supports greater investments in high care facilities, this proposal is unlikely to deliver that.

As you will see below, the reality is far from that proposed.

68 The plaintiff submits that the words 'the proposal is unlikely to deliver that' and 'the reality is far from that proposed' convey to readers that the plaintiff has put forward a proposal that does not truly reflect the aged care facility that is likely to be built. In essence, the plaintiff does not assert that the advertisement conveys that the plaintiff has made statements known to be false with the intention that others believe them to be true. The plaintiff's case is that the advertisement conveys to readers that the plaintiff has misled or deceived them by creating a false impression of the development or not providing to them a full, fair and accurate picture of the development. For the reasons stated earlier, that does not amount to being a liar, in the usual and commonly understood sense of making a believedfalse statement to residents with the intention that they believe the statement to be true. The imputation should be struck out on the ground that it is not capable of arising from the material complained of.

69 If I am wrong in that conclusion and the material complained of is capable of giving rise to the imputation that the plaintiff is a liar understood in the wider sense contended for by the plaintiff, then the imputation should be struck out because it is imprecise and ambiguous and likely to prejudice, embarrass or delay the fair trial of the action. That is because the imputation, in the context of the article, might mean that the plaintiff has deceived the residents by withholding information, concealing information, keeping them in the dark, spin and half truths rather than by making believedfalse statements with the intention to deceive residents. That is embarrassing because the pleading fails to define the issues and inform the defendants of the case they have to meet.

70 The defendants further object to the imputation insofar as it includes the words, 'In his capacity as the developer of the Development'. For the reasons given earlier that is embarrassing in form.

71 For the reasons stated, [16] of the statement of claim will be struck out.

72 The fourth article is an article entitled 'The Vomit Principle is at Play and Rationality has left the Shire of Kalamunda' which appears as a page on the website maintained by the Wattle Grove Action Group. The article commences:

John Day recently wrote a response to Iris Jones' letter to the editor in which she called for the Honourable Minister John Day to resign (click here (http://ruralwattlegrove.files.wordpress.com/2011/10/echo3911-iris-jones.pdf) to view a copy of her letter).

The hyperlink takes the reader to a separate web page which displays a copy of Iris Jones' letter.

73 The plaintiff pleads that in its natural and ordinary meaning the fourth article meant and was understood to mean:

20.1 the plaintiff in his capacity as a developer of the Development, is a liar; and

20.2 the plaintiff is a manipulative business person.

74 The third defendant again objects that the pleading of the fourth article throws the whole article at the defendant and does not identify or select the words or passages giving rise to the alleged defamatory meanings. I reject that objection for the same reasons as I reject that objection in relation to the pleading of the other articles complained of. Exhibit 2 is a screen dump of the fourth article. The article is relatively brief it consists of about one and a half A4 pages, including the heading and illustrations. The subject matter is the development, letters about it and statements or comments about it. The pleading sufficiently identifies the publication complained of and the defamatory meanings which the plaintiff says arise from it. Particulars relating the pleaded imputations to particular words in the article complained of are not necessary to define the issues or to inform the defendants of the case they have to meet.

75 The third defendant further objects that the plaintiff should plead both the Iris Jones letter and the John Day letter together with the fourth article as a single composite publication.

76 I reject that objection for the same reason that I reject that objection in relation to the second article. The fourth article refers to Iris Jones' letter and John Day's response to it. The author then says in effect that Ms Jones, a number of residents and Shire councillors have been misinformed. The article says that residents in the Shire have been led to believe that the proposal by the plaintiff is about supplying high care for the elderly in an appropriate location but that is not the case and it could not be further from the truth. The article makes further comments about the plaintiff's development proposal and comments in effect that Ms Jones has not thought carefully about the appropriateness of the site or thought clearly about the matter at all. The article concludes by referring approvingly to John Day's letter.

77 In argument the plaintiff referred to the statement in the article that Ms Jones, residents and Shire councillors have been misinformed about the plaintiff's development and that they have been led to believe that the proposal by the plaintiff is about supplying high care for the elderly in an appropriate location when in fact that could not be further from the truth. The plaintiff says that those words point to the plaintiff having told lies.

78 The plaintiff also pointed to the part of the article which refers to 'the vomit principle'. The vomit principle is said to be the repetitive use of slogans to the point when you feel like you want to vomit (and at that point you know whatever you are saying is starting to have an effect). Then appear the words:

'We need aged care in Wattle Grove', 'We need to give this development the green light' ... Sound familiar? Let us make this clear the only condition on Mr Ross Leighton is that one person over the age of 55 must occupy each dwelling. Now if I was Iris Jones I would certainly want a little more assurance than that.

The plaintiff says that an ordinary reasonable reader would understand the article to be saying that through the use of repetitive slogans the plaintiff has purposely deceived the residents as to the benefits of the aged care facility with the benefits arising from the development not to satisfy the needs of the elderly but to benefit him. In other words, the plaintiff is manipulative.

79 A body of reasonably minded readers could regard the fourth article as a separate, selfcontained article containing the whole context of what the plaintiff is complaining about. After referring to Iris Jones' letter the author of the article, in effect, says that Ms Jones, a number of residents and Shire councillors who have been misinformed may be unable to see things clearly. The author then says that the residents have been led to believe that the proposal by the plaintiff is about supplying high care for the elderly in an appropriate location when in fact that could not be further from the truth. The letter is the source of the author's belief that Ms Jones has become emotive, lost perspective and is unable to see things clearly. The article then moves on to suggest that the reason for that is that Ms Jones, and others, have been misinformed. The author then identifies that misinformation by saying that residents have been led to believe that the proposal by the plaintiff is about supplying high care for the elderly in an appropriate location when in fact that could not be further from the truth.

80 It is arguable that there is nothing in the letters of Mr Day or Ms Jones which affect the readers understanding of what is said about the plaintiff in the fourth article. Counsel for the defendants was unable to identify anything in the letters which might affect a reader's understanding of what is conveyed about the plaintiff by the fourth article. The view that the fourth article and the letters constitute one publication containing the whole context in which the meaning or sense of the words used in the article were to be understood by a body of ordinary reasonable readers is not the only view reasonably open. It is therefore open to the plaintiff to plead only the fourth article, even though it is arguable that some readers could reasonably have regarded the letters as forming part of the whole context.

81 The plaintiff pleads that in its natural and ordinary meaning the fourth article meant and was understood to mean that the plaintiff in his capacity as a developer of the development is a liar. The defendants object that the fourth article is not capable of giving rise to that imputation. I reject that submission. It is sufficiently arguable that readers would understand the article to be saying that Mr Ross Leighton has told lies about the development that the imputation should not be struck out. Whether or not the article gives rise to that imputation is a matter for trial. The article says that Ms Jones, residents and councillors have been misinformed. In the context of the article it is arguable that readers would understand that it was the plaintiff, as the developer, who had misinformed them or caused them to be misinformed. Unlike the other publications complained of the article does not go on to say in effect that the residents have been misinformed by the withholding of information, concealing information, keeping the residents in the dark and half truths. The article says that what residents have been led to believe the proposal is about 'couldn't be further from the truth'. It is arguable that ordinary reasonable readers would understand that to mean that the plaintiff has told lies about the development, that is, believedfalse statements made to the residents with the intention that they believe the statements to be true.

82 In determining the ordinary and natural meaning of the article the court should avoid an over elaborate analysis of the article because an ordinary reader would not analyse the article as a lawyer would analyse documents. The judge should have regard to the impression the article has made upon him or her and consider what impact it would have made on the hypothetical reasonable reader. The exercise is an exercise in generosity, not in parsimony: Berezovsky v Forbes Inc (No 2) [2001] EWCA Civ 1251 [16] (Sedley JA). An imputation should only be struck out on the ground that the words complained of are incapable of supporting it or if the contention is so obviously unfounded that it cannot possibly succeed or is manifestly groundless. The pleaded imputation is not so obviously unfounded that it cannot possibly succeed nor is it manifestly groundless.

83 Nevertheless, [20.1] should be struck out on the ground that it may prejudice, embarrass or delay the fair trial of the action because the imputation is ambiguous and imprecise. The imputation, read in the context of the fourth article, might mean that the plaintiff is a liar in the sense that he made believedfalse statements to persons with the intention of deceiving them or the imputation might be of deception, withholding information, concealing information, keeping the residents in the dark, spin and half truths to deceive them.

84 The defendants again object to the form of the imputation insofar as it pleads 'in his capacity as a developer of the development'. For the reasons given earlier the imputation in that form is embarrassing. Paragraph 20.1 of the statement of claim should be struck out.

85 The plaintiff pleads that the fourth article also gives rise to the imputation that the plaintiff is a manipulative business person. The defendants object that the article is incapable of giving rise to that imputation.

86 The plaintiff says that the imputation that the plaintiff is a manipulative business person arises, in the context of the article as a whole, from the references to the vomit principle to which I have referred. The plaintiff says that the references to the vomit principle convey that through the use of repetitive slogans the plaintiff has purposely deceived the Wattle Grove residents as to the benefits of the aged care facility with the benefits arising from the development not to satisfy the needs of the elderly but to benefit him. In other words, the plaintiff says the article gives rise to the imputation that he is manipulative. In my view that is sufficiently arguable for the imputation not to be struck out.

87 For the reasons stated paragraphs 7, 11, 13, 16 and 20.1 of the statement of claim should be struck out.