McBride v John Fairfax Group Pty Ltd [2007] NSWSC 717 | Case summary

(2) It is a defence to any imputation complained of that : (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff." 6 The plaintiff contends that the defences of contextual truth do not have any real prospects of success and the sole object of pleading these defences is to put before the jury evidence which will have the effect of reducing the amount of damages that might be awarded. The plaintiff argues that the contextual imputations could not be rationally considered by the jury as so affecting his reputation that the plaintiff's imputations are incapable of causing further injury. The particulars, the plaintiff submits, in relation to the Gibbs report and to the 1982 publication do not bear a reasonable relationship to the published material relied upon by the plaintiff. As a result the facts, matters and circumstances relied upon for the defence bear no relationship to the matters complained of. Furthermore, the generality of contextual imputations 9(b), (c) and (d) offend the principles of precise pleading. 7 The defendant argues that it is a matter for the jury to decide whether the contextual imputations either individually or combined "swamp" each of the plaintiff's imputations and it is not a matter for decision by the Court on a "strike out" application. This is not a case, the defendant submits, where plainly on its face, the defence of contextual truth cannot succeed because the defence is of such a lower magnitude than the plaintiff's case. The defendant contends that it is entitled in the present case to justify its contextual imputations by reference to facts which are not in the matter complained of as there is a reasonable relationship between them. Although the contextual imputations are pleaded in a general form the defendant submits that does not make them imprecise and liable to be struck out. 8 The first argument for the plaintiff is founded on the following passage which appears in NRMA Insurance Ltd v Amalgamated Television Services Pty Ltd (unreported 14 July 1989) when Hunt J said: "…………it is important to emphasise that the defendant cannot succeed in this defence unless the truth of the contextual imputation (or imputations) is of such a nature that the plaintiff's imputations are incapable of causing further injury to his reputation. It has nevertheless become apparent over the years that some defendants who are regular litigants in defamation proceedings have been pleading defences of contextual truth which do not have any real prospect of success, in circumstances where it would seem that they were pleaded for no reason other than to put before the jury the evidence to which I have referred and for the purpose which I have identified. A plaintiff is entitled to insist upon such defence being removed from the issues for trial if it is clear either that that is the only purpose for which they have been pleaded or that that is the only effect which they will have." 9 No evidence has been adduced by the plaintiff that it is the intention of the defendant to abuse the court's process by an unmeritorious s 16 defence. Although the plaintiff seeks to establish that such is the defendant's purpose by inference from the terms of the contextual imputations, I am not persuaded that is the case. 10 The plaintiff argues that the defendant's contextual imputation 9(a) is of a lower level of seriousness than the plaintiff's imputations 4(b)-(c) and contextual imputation 9(b) has "less sting" than imputations 4(a) and 4 (c). Furthermore, contextual imputations 9(b), 9(c) and 9(d) seek to justify by reference to events which find no place in the article and should be struck out. Should they be struck out and imputation 9(a) remains then this imputation would also be struck out for the reason that it is clearly of a lesser sting than imputations 4(a) and 4(c). 11 The question to be considered under s 16(2)(c) is whether by reason of the substantial truth of the contextual imputations, considered individually or collectively, the imputations pleaded by the plaintiff do not further injure his reputation: see Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 36, Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386, Waterhouse & Anor v Hickie (1995) Aust Torts Reports ¶ 81-347. 12 In John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541 the correct approach to this question was determined (by majority) by the Court of Appeal. Spigelman CJ (with whom Rolfe AJA agreed) said (at p543): "5. Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a "matter of substantial truth". It is "by reason" of such "substantial truth" that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff's imputation does not "further injure the reputation of the plaintiff". For purposes of determining whether the s 16 defence is capable of being made out, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself." 13 What is required is the weighing of the seriousness of each of the plaintiff's imputations against the seriousness of the facts, matters and circumstances that are said to establish the truth of the contextual imputations. 14 The particulars pleaded to justify the truth of each contextual imputation identify the "facts, matters and circumstances" said to establish the imputation. Imputation 9(a) is that the plaintiff "dishonestly failed to acknowledge" Dr McCredie's role in discovering how Thalidomide caused limb abnormalities whereas plaintiff's imputation 4(b) is that the plaintiff "dishonestly claimed" to have carried out the research on the drug Thalidomide. Imputation 4(c) is that the plaintiff "stole other people's research data". The facts, matters and circumstances said to establish contextual imputation 9(a) are no more than those which are pleaded as justifying the truth of imputations 4(b) and 4(c), Plainly, contextual imputation 9(a) is no more serious than imputation 4(b) and is less serious than imputation 4(c). 15 Particulars P24 - P25 are pleaded as justifying contextual imputations 9(b), 9(c) and 9(d) and are additional to the particulars pleaded to the truth of imputations 4(a), 4(b) and 4 (c). These additional particulars assert that: (i) the plaintiff engaged in deliberate falsification in relation to the compilation of the data from an experiment described in the paper "Effects of Scopolamine Hydrobromide on the Development of the Chick and Rabbit Embryo" which the plaintiff submitted for publication knowing it to be deliberately false in the Australian Journal of Biological Sciences (AJBS). This article was published in the AJBS 1982, vol 35, pp 173-178. And (ii) certain admissions as particularised were made by the plaintiff at the hearing of the Medical Tribunal of New South Wales on 9 November 1998 which include an admission that "the term 'scientific fraud' appropriately applied to his description in the AJBS article of the experiment": see P25(b). 16 Neither the article published in the Australian Journal of Biological Sciences nor (for obvious reasons) were the admissions made before the Medical Tribunal referred to in the article about which the plaintiff complains. The defendant submits that it may use these other acts of alleged dishonestly to justify its contextual imputations as the plaintiff has pleaded imputation 4(c) in general terms. The defendant raises a defence which is associated with the case of Maisel v Financial Times Limited (No 1) (1915) 84 LJKB 2145. 17 The defence was explained in Allen v John Fairfax and Sons Ltd (NSWSC, 2/12/88 Hunt J, unreported) at 9-10 in these words: "Where a plaintiff pleads an imputation in general terms which are not restricted to the facts stated in the matter complained of, the defendant in justifying the imputation is also not restricted to the facts stated by it in the matter complained of: Maisel v Financial Times Ltd (1915) 112 LT 953 at 955……………….. I see no reason in principle why the defendant cannot raise a defence of contextual truth by pleading a contextual imputation in the same way - provided that that contextual imputation otherwise complies with the requirements of that defence as I have already outlined them. If the matter complained of conveys to the same ordinary reasonable reader two imputations at the same time, one of a general nature (of a Maisel type) and another of a specific nature which, even although related to the same subject matter of the general imputation, differs in substance from it, the policy behind s 16 requires that the defendant be permitted to plead the former as a contextual imputation to the plaintiff's cause of action based upon the latter." 18 It is arguable that the plaintiff by imputation 4(c) has pleaded a general dishonesty in the field of research which is not confined to his doctoral thesis and to the drug Thalidomide about which the plaintiff specifically complains. Imputation 4(c) is as follows: "the plaintiff stole other people's research data to gain widespread fame and recognition for himself." 19 As a consequence, the defendant's contextual imputations are not to be confined to the specific conduct complained of. The additional facts, matters and circumstances said to establish contextual imputations 9(b), 9(c) and 9(d) must, however, bear a reasonable relationship both to the contextual imputation itself and to the article which is the published material relied upon by the plaintiff: see Australian Broadcasting Corporation & Anor v Hodgkinson [2005] NSWCA 190 per Hodgson JA at [34]. In my opinion the facts, matters and circumstances particularised in P24-P25 satisfy each of these requirements. Furthermore, particularly by reason of the additional material, these contextual imputations are more than an alternative way of formulating the same imputation relied on by the plaintiff: see John Fairfax Publications Pty Limited & Anor v Jones [2004] NSWCA 205 per Spigelman CJ at [16]. 20 Contextual imputation 9(a) being a dishonest failure to acknowledge is of a different character to a dishonest claim to have carried out research which is raised by imputation 4(b). 21 The defendant's imputations do not offend the requirement that contextual imputations should be pleaded with the same precision as is required for the plaintiff's imputation: see McBride v ABC (2000) NSWSC 747 per Levine J, paras 54-56. 22 It seems to me that the collective effect of the defendant's contextual imputations is such that their substantial truth is capable of so affecting the plaintiff's reputation that the imputations pleaded by him do not further injure his reputation. 23 There are five issues of law which must be answered in favour of a defendant if a s 16 defence is to succeed: see Jackson [at 40], Hepburn [at 400], Waterhouse & Anor v Hickie (1995) Aust Torts Reports ¶ 81-347 at 62,494. They are: (1) Does the defendant's contextual imputation (or in the present case of the combined effect of them) differ in substance from the imputations pleaded by the plaintiff? (2) Is the defendant's contextual imputation (or in the present case the combined effect of them) capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which it is or they are pleaded as a defence? (3) Is the nature of the defendant's contextual imputation (or in the present case the combined effect of those contextual imputations) such that its or their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's reputation that the imputation of which the plaintiff complains did not further injure that reputation? (4) Is there evidence upon which the jury could find that the contextual imputation is substantially true? (5) Does the contextual imputation relate to a matter of public interest or was it published under qualified privilege? 24 In my opinion questions (1) to (3) and question (5) are capable of being answered in the defendant's favour. Question (4) is not required to be answered on the present application. 25 The defendant's pleadings of contextual truth raise defences which are fairly arguable and I do not propose to strike them out. 26 The amendments made by leave to the defence removed the Gibbs report from the particulars pleaded to the defence of contextual truth. The Gibbs report remains in P40, which, it seems, provides particulars to the case to be made in Mitigation. As I have not heard argument on this issue, I do not propose to consider P40. 27 For these reasons, I make the following orders:

The notice of motion is dismissed.
Plaintiff to pay defendant's costs of this motion.
Plaintiff to pay defendant's costs of the motion dated 27 June 2007.

McBride v John Fairfax Group Pty Ltd

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Cases Cited (4)