HER HONOUR: These are proceedings for defamation arising out of the publication of a series of postings on Facebook. Broadly speaking, the material published consists of a discussion among the several defendants of their views as to business services offered by the first plaintiff and his methods of conducting business. The material posted assumes a level of knowledge about the plaintiff's practices which is not expressly articulated in the matters complained of. To a degree, therefore, the meaning of the material in question is a matter of inference or conclusion based on the language used.
The proceedings have come before the Court on a number of previous occasions. Ordinarily in proceedings in the defamation list, the Court's expectation, as expressed in the practice note (SC CL 4), is that any objections to the form of the plaintiff's pleading will be brought forward for determination at the first listing of the proceedings. That expectation reflects the Court's concern to give effect to the objects and requirements stated in Part 6 of the Civil Procedure Act 2005 (NSW), the pursuit of which is particularly challenging in defamation proceedings.
In the present case the plaintiffs, in response to objections notified by the defendants, agreed to amend their original pleading and an amended statement of claim was filed. Further objections were notified to the amended pleading but at that point the defendants took the view, in order to save incurring further legal costs, that those objections could be determined at the hearing and were not required to be determined at the interlocutory stage.
Subsequently, however, the plaintiffs briefed new senior counsel, Mr Littlemore QC, who considered it appropriate to review the pleading. The present application accordingly concerns the defendants' objections to a proposed further amended statement of claim circulated following that event. In recording those matters, I mean no criticism whatsoever of Mr Littlemore but only to explain the circumstances in which the Court is asked to conduct a second first listing.
This judgment is being delivered orally in the interests of expedition and reflects the contemplation of clause 20 of the practice note that reasons in the defamation list will ordinarily be given in short form. I have prepared my reasons in as short a form as I have been able to in the limited time available to the Court this week.
The matters complained of and the imputations objected to are conveniently collected in a document provided to the Court by Mr Littlemore [I took the references to "the plaintiff" in that document to be references to the first plaintiff].
The first objection is to imputation (c) pleaded in respect of schedule A to the proposed further amended statement of claim, which is: "The plaintiff has caused people serious hurt". The objection is an objection as to the form of the imputation. Mrs Chrysanthou, who appears for the defendants, contended that the imputation is unclear as to what kind of hurt was allegedly caused to the people in question. In my view, in the context of the content of the matter complained of, the meaning of the imputation is clear; it plainly refers to psychiatric or psychological or emotional hurt as opposed to physical hurt. The imputation will stand.
The second objection is to imputation (d), "The plaintiff has forced people to go into hiding to escape him and his group". During argument, in response to a discussion concerning the form of that imputation, Mr Littlemore indicated that it would be amended so as to read, "The plaintiff in his conduct towards business clients seeking advice has forced people to go into hiding to escape him and his group".
Mrs Chrysanthou objected that it is not clear what act or condition is attributed to the plaintiff by the imputation. Particularly, it is not clear what is said to have forced people into hiding, or what particular conduct is attributed to him. That is whether the imputation is that he physically forced people into hiding, or that his conduct had the effect of forcing people into hiding. The proposed additional words, in my view, ameliorate the lack of clarity from which the original imputation suffered. There is still a degree of vagueness as to the conduct said to have forced people into hiding but, in this case, that is a reflection of the vagueness of the language of the matter complained of. The attribution is as unambiguous and specific as the nature of the material published permits. The imputation will go to the jury.
The next objections relate to schedule B to the proposed further amended statement of claim. The first imputation objected to is (b), "The plaintiff treats those with whom he deals as mere pawns". Mrs Chrysanthou submitted that the term "pawns" is unclear. She relied in that context on the decision of Simpson J in Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20. That decision contains a useful discussion of the vice of imputations which merely adopt undistilled slang terms used in the allegedly defamatory publication. In particular, the judgment provides (at [21] to [26]) a useful summary of the principles by which the Court might be guided in such a case. Although the relevant passage is long, it pays close consideration and is accordingly set out in full below:
21 By UCPR 14.30(2) a plaintiff making a claim in defamation must:
"... specify each imputation on which the plaintiff relies ..." (italics added)
22 In Feros v West Sydney Radio Pty Ltd (NSWCA, 22 June 1982, unreported), Samuels JA said that "specify" means "state categorically, explicitly or particularly the defamatory meaning", and that the imputations should be "clear and precise". This approach was approved in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 by Gleeson CJ. The question which arises is whether, in using the word "grub" in the imputations, the plaintiff has discharged the obligation to specify the defamatory meaning which she claims was conveyed. In the same case, Gleeson CJ approved a test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155, in the following terms:
"... 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."
23 There is no doubt in my mind that the word "grub" was intended to, and did in fact, convey a defamatory slur of the plaintiff. There is no non-defamatory meaning that could be attributed to the expression. But that does not mean that its meaning is clear or unambiguous. It does not mean that the imputation pleaded on behalf of the plaintiff is "clear and precise".
24 The difficulty inherent in a plaintiff's adopting, in framing the imputations, colloquial or slang language used by a defendant is neatly illustrated by Hunt AJA in Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 at [5]-[6]. There the word in question was "shonky". Hunt AJA traced the development, and the changing use, of "shonk" and "shonky", showing that they have no longstanding settled meaning. In that case the issue only arose on appeal. It appears that the trial proceeded with tacit agreement as to the meaning to be attributed to the word as used in the pleaded imputation. There, as here, the imputation was adopted verbatim from the words used in the publication the subject of the proceedings, although, in that case, no gloss was cast upon those words to explain the plaintiff's interpretation.
25 It is sometimes the case that, by reason of lack of specificity in what is published by a defendant, a plaintiff is hampered in attributing a more precise meaning to the language used by the defendant than that language itself conveys. It is, after all, the language of the defendant: see, for example, Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682. However, the obligation remains upon a plaintiff to identify the defamatory meaning. It is quite possible that the language used by a publisher is so vague or unspecific as to leave open a range of meanings. In such a case, it is insufficient for a plaintiff to adopt, in the imputation, the language used by the defendant, and leave the question of its meaning to the jury, see Singleton v Ffrench (1986) 5 NSWLR 425. It is, of course, possible for a plaintiff to provide alternative translations of the defendant's language; but provide at least one translation a plaintiff must.
26 This is not to impose too onerous a burden upon a plaintiff. The plaintiff brings proceedings in defamation because he or she asserts that whatever was published by the defendant conveyed a meaning defamatory of him or her. He or she must therefore be able to attribute some meaning to that language. It is articulation of that meaning - ie the meaning (or alternative meanings) for which the plaintiff contends - that is required by UCPR 14.30(2).
Mr Littlemore submitted that the term "mere pawns" is figurative language which would be well understood by the ordinary reasonable reader and indeed the jury, a pawn being the least important piece in the game of chess and the piece which is sacrificed first. Whilst there may be a proper distinction to be drawn between figurative language and slang terms, in my view the use of such figurative language in the present context is problematic.
In particular, in my view, the term "pawn" is a term which falls short of the requirement of clarity and precision discussed by Simpson J in Ahmed. That imputation will be struck out as being bad in form.
The second objection in respect of annexure B is to imputation (c), "The plaintiff can only pretend to show humanity for the sole purpose of profit making". The principal objection to the imputation was as to form, primarily on the basis that the meaning of the phrase, "Can only pretend", is unclear. In my view, the meaning of the imputation is clear - it is that the plaintiff is not in fact humane but is only capable of pretending to show humanity for the cynical purpose specified. That imputation will go the jury.
The next objection is to imputation (d), "The plaintiff is a compulsive liar who thinks he's God". The imputation comes from words of the matter complained of where it is said, "He is a compulsive liar with a God complex, and does not care about our fates". Ms Chrysanthou objects that the imputation is bad in form, since it seeks to attribute two separate stings to the plaintiff, namely, that he is dishonest and presumably that he is delusional (in thinking he is God). In my view, there is force in that submission. Whilst the imputation is drawn from a composite phrase, the two attributions are quite different and should, I think, be separated into discrete imputations. Otherwise, there will be confusion at the trial and at the interlocutory stage as to whether the defendants could justify the imputation by proving, for example, that the plaintiff thinks he is God but failing to prove that he is a compulsive liar.
An objection to imputation (f) was withdrawn during argument.
The next imputation objected to is (g), "The plaintiff manipulates people who are under his spell". In response to a suggestion from the bench that the phrase "under his spell" is unclear, Mr Littlemore proposed to amend the imputation so as to read, "The plaintiff manipulates vulnerable people". In its amended form, in my view, the lack of precision or clarity in the imputation is cured. That imputation will go to the jury.
The next series of objections relates to the imputations pleaded in respect of schedule C to the proposed further amended statement of claim. An objection to imputation (b) was withdrawn during argument. Imputation (c) is "The plaintiff does not love his wife/partner, and appears to be abusive of her". The form of that imputation raises probably the most difficult issue for the present application and, leaving aside constraints of time in the defamation list, is the reason I felt it necessary to reserve my decision from last Friday until this morning.
Mr Littlemore accepts that the first premise of the imputation, "that the plaintiff does not love his wife", is not in itself defamatory. In a short written submission provided after argument he submitted, however, that the sting of the imputation (that the plaintiff appears to be abusive of his wife) is an allegation of fact in which the "loveless marriage first premise and the subsequent assertion that the plaintiff is incapable of love or empathy inform the real sting". As I understand it, the proposition is that the observation that the plaintiff's wife evidences abuse at his hands gives rise to an imputation that there is the appearance that he is abusive of her.
The imputation comes from the following matter, which is the whole of the relevant matter complained of;
Mina Sedgman: Lovely perspective Henry. What Analaura and Wilson have is not love. He is a "Charismatic Psychopath", he views people in the abstract, as what value do you have for me? Ana reminds me of an abused wife, who wants her man back because she knows no other world. Wilson does not have the capacity for love or empathy. I know this is hard to comprehend. Most human beings are loving by nature. Wilson cannot connect like that, the connection is purely manufactured because he knows that's what people want and expect. Scary stuff.
Ms Chrysanthou submitted that the imputation is akin to, although not the same as, an imputation of suspicion (for example, "the plaintiff was reasonably suspected of having committed the offence of murder" or "was suspected by police of having committed the offence of murder"). The authorities as to such imputations, to a degree, are vexed and in some respects inconsistent. Ms Chrysanthou relied in particular on the following authorities;
Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 at [28];
Alex v Gridneff [2013] NSWSC 2025;
Adeang v ABC [2016] FCA 1200 esp at [43] - [57] (Rares J)
I have returned to each of those decisions in some detail and have ultimately concluded that, as submitted by Mr Littlemore, there is perhaps little to be gained from them in determining the present question. It does not follow, however, that the imputation can stand. I accept that the imputation is not on all fours with suspicion imputations and I accept that the Court cannot make a rule about what is conveyed to the ordinary reasonable reader. A challenged imputation must always be examined on its own terms and by reference to the matter complained of in the particular case.
Returning, however, to the discussion by Simpson J in Ahmed, ultimately the question is whether the imputation states "categorically, explicitly or particularly" the defamatory meaning of the article and whether the imputation is sufficiently "clear and precise". After some deliberation I have concluded that, in the context of this publication, the phrase "appears to be abusive of her" is apt and indeed likely to cause confusion at the trial. That is particularly so where the imputation is drawn from an impression the author has evidently formed, not of the plaintiff but of his wife. It is not clear to me what the attribution to the plaintiff himself is, or indeed what might be considered acceptable proof of the truth of the imputation. Would it be enough to prove that the plaintiff's wife had that appearance according to the perception of the author of the matter complained of or would it be necessary to prove that she had that appearance to a broader group of people? I have concluded that the imputation is apt to cause confusion and for that reason is embarrassing and liable to be struck out.
Imputation (d) is "The plaintiff is incapable of love or empathy." The defendants object to that imputation on the grounds that it conveys two stings which should be separated into two imputations, that the plaintiff is incapable of love and that the plaintiff is incapable of empathy. The imputation is drawn from the words of the matter complained of, "Wilson does not have the capacity for love or empathy." In this case, I think the imputation aptly captures a composite concept conveyed by the matter complained of and can stand.
The next objection is to imputation (e), "The plaintiff is a frighteningly uncaring person". The defendants object to the imputation on the grounds that its meaning is unclear, particularly by reason of the inclusion of the adjective, "frighteningly". In my view, the meaning of the imputation is unclear in that limited respect. That is, it is not clear to me what is the difference between an uncaring person and a frighteningly uncaring person or what additional sting or concept is intended to be conveyed by the inclusion of that characterisation. That imputation will be struck out.
An objection to imputation (b) in respect of schedule D in the proposed further amended statement of claim was withdrawn during argument.
As to schedule E, an objection to the imputation "The plaintiff would be convicted of a crime in the United Kingdom" was cured by an agreed amendment during argument so that the imputation will read "The plaintiff has committed a crime in the United Kingdom."
Objections to imputations (a) and (b) in respect of schedule F to the proposed further amended statement of claim were withdrawn during argument.
Schedule G to the proposed further amended statement of claim contains an image, apparently of a North Korean reporter, with the caption "North Korea confirms it has landed a man on the sun. North Korea sends a 17 year old man to the sun, a journey that took just four hours." The image has been posted by one of the defendants with the additional comment "Found someone more dishonest! (Didn't think it was possible)." Ms Chrysanthou accepts that the comment is capable of being understood to be one made of and concerning the plaintiff.
However, the defendants object to the form of the only imputation pleaded in respect of that matter, which is "The plaintiff is so dishonest as to be second only to the dishonesty of ludicrous North Korean propaganda." Ms Chrysanthou accepts, I think, that an imputation of dishonesty is plainly capable of being conveyed by the matter complained of but submits that the additional words or the rhetorical form of the imputation comparing the measure of the plaintiff's dishonesty with that of "ludicrous North Korean propaganda" is rhetorical flourish which is extraneous to the sting and likely to cause embarrassment at the trial. In that context, Ms Chrysanthou relied on the decision of Hunt J in Mayfield Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 412 at 420. That was a case in which the headline of a newspaper article misquoted the words a trainer had said to a jockey, wrongly attributing the trainer with having threatened to "punch" the jockey whereas the body of the article made plain that the trainer had threatened to hit the jockey over the head with a whip if the jockey ever hit the trainer's horse again with a whip.
At the pre-trial stage an issue arose as to the form of the imputation specified by the plaintiff, which included the threat to punch within the terms of the imputation. It had been conceded during argument that there was no difference in substance between the threat, whether it be a threat to hit or to punch. Pre-empting the likely waste of time at the trial if that issue were not determined at pre-trial stage, Hunt J regarded the additional words as extraneous, embarrassing and unnecessary to the sting of the imputation and struck them out on that basis. What was left was an imputation that the trainer had threatened the jockey.
There was in the present case no concession by Mr Littlemore that the additional words or the rhetorical comparison to "ludicrous North Korean propaganda" did not alter the sting of the matter complained of. Mr Littlemore submitted only that the imputation is "a lovely imputation", capturing the defamatory attribution of the matter complained of in exactly the terms in which he would wish to present the case to the jury.
The imputation is indeed a lovely expression of words and I feel a measure of sadness in having to strike it out. In my view, however, Ms Chrysanthou is correct in submitting that the additional reference to "the dishonesty of ludicrous North Korean propaganda" is rhetorical flourish which is apt to cause embarrassment, if not a waste of time in the proceedings at trial. One asks rhetorically, how might the defendants, by reference to the universe of dishonesty available on the internet and elsewhere, compare the measure of the plaintiff's dishonesty with that of North Korean propaganda? The imputation must be struck out but with leave to re-plead noting, as I think is acknowledged by the defendants, that an imputation of dishonesty or even extreme dishonesty is plainly capable of arising.
The final objection is to an imputation pleaded in respect of schedule H to the proposed further amended statement of claim. The imputation is that the plaintiff has so conducted himself that his customers must utterly dissociate themselves from any connection with him. The matter complained of contains a warning to members of the "WL Group" (which I take to be a reference to the plaintiff's group) that they should remove any promotional material they might have posted in respect of the plaintiff from social media. The warning is said to arise from the content of an embedded link that was evidently available within the matter complained of at some point but which can no longer be accessed and which does not form part of the matter complained of in the proceedings. In the result, the ordinary reasonable reader is left to assess a warning based on an article no longer available.
Ms Chrysanthou complained that the imputation is insufficiently precise, providing no indication as to the nature of the conduct by reason of which the plaintiff's customers should dissociate themselves from any connection with him. Greater specificity might be available from words of the matter complained of, which state:
Here is an article that should be read by anybody that works with or has previously worked with an individual that you knew or now know to have either gained or attempted to gain anything by fraud. Keeping in mind that fraud is clearly defined in UK and Australian law to include obtaining money or benefits by any kind of deceit.
It may be accepted from that account that the imputation could have included greater specificity. In my view, however, the imputation is sufficiently clear, having regard to the terms of the matter complained of. I am not persuaded that it is liable to be struck out.
Ms Chrysanthou submitted that the plaintiff should pay the defendants' costs of the amendment, that is to say the costs thrown away by reason of the amendment, and an order that those costs be payable forthwith as contemplated by the practice note. She relied in that context on the decision of Adamson J in Kazal v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1422.
In that case her Honour referred to the decision of Barrett J in Fiduciary v Morningstar Research [2005] NSWSC 442, where his Honour identified factors relevant to the exercise of the Court's power to order that costs be payable forthwith. His Honour was of course not purporting to codify the relevant principles, nor to supplant the plain terms of the rule, which confers a relatively broad discretionary power. What the defamation list practice note does is to communicate to parties the Court's expectation that, in proceedings for defamation, the pleadings will, from the outset, specify the imputations the plaintiff seeks to bring to trial and that any objections to those pleadings will be determined at the first listing of the proceedings. As I apprehend it, the Chief Justice's purpose in promulgating those expectations was to serve the objects and requirements stated in the provisions of the Civil Procedure Act to which I have referred above.
The history of the pleadings in the present case is recorded at the outset of this judgment. It is sufficient for present purposes to record the fact that the defendants have been subjected to considerable expense, not by reason of the kind of pedantic argument in the defamation list which has been the subject of criticism in a number of forums but simply by reason of a decision of the plaintiff to brief new senior counsel, as a result of which a great deal of past work has been rendered otiose. It might be observed, in any event, that the costs thrown away entail at least some of the features identified by Barrett J in Fiduciary v Morningstar. They are separately identifiable. I would not go so far as to the say that the conduct of the plaintiff in briefing new counsel and reviewing the pleadings was unreasonable but the simple fact is that the change of counsel and the resultant change in the presentation of the case has visited an unreasonable cost on the defendants when regard is had to the principle of proportionality and the likely proportion between any damages in these proceedings and the costs, which are likely already mounting. The case has all the hallmarks of one in which costs might ultimately become a driving force, particularly where, as indicated in an affidavit filed on behalf of the defendants, the publications in question have already been taken down. I emphasise that I intend no criticism of Mr Littlemore in these remarks; on the contrary, the pleading now propounded seems likely ultimately to simplify the proceedings. I am merely stating a factual consequence of his having come into the case, which is that costs incurred in the past have been wasted.
Finally, Mr Littlemore conceded that it is likely that a significant period of time will pass before the proceedings are finally determined. I am persuaded that this is an appropriate case in which the costs thrown away by reason of the amendment should be payable forthwith.
I direct the parties to bring in short minutes of order to reflect these rulings within seven days.
[3]
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 December 2016