Nassif v Nationwide News Pty Limited

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Yvonne NASSIF v NATIONWIDE NEWS PTY LIMITED JUDGMENT

HER HONOUR : 1 On 8 September 1998 the plaintiff commenced proceedings in defamation as a result of the publication on 24 April 1998 by the defendant of a newspaper article which identified her as the fiance of a Louis Bayeh, who, it was said in the article, was an "underworld figure". The article purported to be a report of a hearing of the Independent Commission Against Corruption (ICAC). Accompanying the article was a large photograph of the plaintiff apparently holding and speaking into a mobile telephone. She was standing in front of a garage roller door on which was painted, in large block letters, the words "ANY TIME". Under the photograph was a caption stating that the photograph was taken "outside the Commission hearing". 2 There was also a boxed inset to the article, headed "Louis' faithful Yvonne", referring to the plaintiff by name, and purporting to describe her attendance at the ICAC hearing. 3 In her original statement of claim the plaintiff pleaded that five imputations, numbered (a) to (e), arose from the natural and ordinary meaning of the words and photograph. The imputations pleaded were:

(a) The Plaintiff is a prostitute. (b) The Plaintiff solicits clients for the purpose of prostitution by mobile telephone. (c) The Plaintiff is available for prostitution any time. (d) The Plaintiff is a person of loose morals. (e) The Plaintiff is the sort of person who would pose provocatively in front of a sign reading 'Any Time'. 4 In March 1999 the defendant argued that the matter complained of was not capable of conveying the imputations numbered (a),(b),(c) or (e). No challenge was then made to imputation (d). After hearing argument I upheld the defendant's argument in relation to imputations (a), (b) and (c) and ordered that those imputations be struck out (Nassif v Nationwide News Pty Limited [1999] NSWSC 150, 5 March 1999). 5 As a result of the orders then made, the plaintiff seeks leave to amend her pleadings by filing the document entitled Second Further Amended Statement Of Claim. The substance of the amendment sought is to reinstate the three imputations struck out by alleging that they, and the surviving imputations ((d) and (e)), arise by way of true innuendo. Imputations (d) and (e) are then pleaded as arising from the natural and ordinary meaning of the publication, as well as by way of true innuendo. Imputations (a), (b) and (c) are pleaded only as arising as true innuendo. 6 The defendant objects to leave being granted to the plaintiff to amend in this way and further seeks, belatedly, to argue that imputation (d) is incapable of arising from the natural and ordinary meaning of the publication. 7 By seeking now to plead true innuendo, the plaintiff seeks to plead that, by reason of extrinsic facts known to some recipients of the matter complained of, the publication conveyed to those recipients a meaning over and above that conveyed by its natural and ordinary meaning. She particularises a series of facts she claims to be facts known to some readers of the publication by reason of which the content of the words took on an additional, and defamatory, meaning. The facts on which she seeks to rely to establish the additional meaning are:

(a) Louis Bayeh is an underworld figure. (b) Louis Bayeh has the reputation of being involved in the supply of drugs and prostitution. (c) Prostitutes frequent inner city suburbs including Redfern. (d) Prostitutes stand on footpaths in order to solicit clients. (e) Prostitutes offer their services at any time. (f) A female person standing in front of a sign reading 'ANY TIME' would be likely to be a prostitute. (g) (deleted) (h) Prostitutes often have mobile phones and solicit for business by this means. (i) The ICAC Commission is located in Redfern. (j) Mr Antoine De Bruyne is brothel owner who employs prostitutes. (k) Mr Bayeh is an associate of Mr De Bruyne. (l) Prostitutes often dress in clothes similar to those worn by the plaintiff as depicted in the photograph. (n) Prostitutes often adopt a stance similar to the stance adopted by the plaintiff as shown in the photograph. (m) Prostitutes are persons of loose morals. (o) A female person who would pose provocatively in front of a sign reading 'ANY TIME' is likely to be a prostitute. (p) Louis Bayeh's fiancee is likely to be a person of loose morals. (q) Louis Bayeh's fiancee is likely to be a prostitute. 8 The defendant objects to leave being granted, arguing that what is proposed to be pleaded is not, properly characterised, true innuendo, and that the "extrinsic facts" proposed to be pleaded are not, properly characterised, extrinsic facts, and do not meet the description necessary for extrinsic facts to be put before a jury. 9 The line between an imputation conveyed by the natural and ordinary meaning of the publication, and an imputation conveyed only to a recipient with knowledge of special facts, is not always clearly defined. This is because, in determining what meaning is conveyed by the natural and ordinary meaning of the publication to the ordinary reader (or is capable of being so conveyed) allowance is made for some loose thinking, and for the intrusion of some extrinsic knowledge on the part of the recipient of the matter complained of. That is, in pleading imputations, a plaintiff is not confined to the literal meanings of the words used. Colloquial expressions, for example, are taken to convey their commonly accepted colloquial meanings - without, usually, the need for extrinsic facts to establish the departure from the strict literal meaning. An excellent current example of this is the use of the word "gay". Although the literal meaning of the words is well known and established, it would be unnecessary in 2000 for a plaintiff to rely upon an extrinsic fact to prove that it is commonly taken to convey an entirely different meaning. To assert of a person that he or she is "gay" is to assert that he or she is homosexual. That is one meaning conveyed by the current, ordinary use of the word. It is a meaning the word has acquired through popular usage. It may have been necessary in 1990, and almost certainly would have been in 1970, to explain its acquired meaning perhaps by reference to extrinsic facts, but it is no longer so. 10 The law also allows for recipients of allegedly defamatory material to draw on their own knowledge and experience of human affairs: Mirror Newspapers v Harrison (1982) 149 CLR 293 at 301. In this way, a recipient may inject into the interpretation of a publication his or her own knowledge of contemporary literature, political issues, current affairs, entertainment and so on, to produce a meaning far removed from that which emerges from a strict literal interpretation, but still within what is, at that time, the natural and ordinary meaning of the publication. 11 It is the recognition so accorded to changing and colloquial meanings of words that can shift the line between the natural and ordinary meaning of a publication, and a defamatory meaning conveyed only by reason of extrinsic facts known to some or all recipients. If all this sounds obscure, the point is illustrated in one of the English cases on the subject, Grubb v Bristol United Press Limited [1963] 1 QB 309. There Holroyd Pearce LJ postulated publication about a person called John Smith that "his name is certainly not George Washington". His Lordship considered that the natural and ordinary implication of those words was that John Smith was untruthful. He added that it would be permissible, though probably unnecessary, for the pleader to add an innuendo, claiming that the words conveyed the same imputation, supported by the provable facts that George Washington is widely referred to as the prototype of the truthful man. 12 The words "his name is certainly not George Washington", on their face, are not defamatory, but, to the ordinary reader, having knowledge of characteristics popularly attributed to George Washington, they carried a meaning additional to their literal meaning. Similarly, the words "he is no Einstein", in their natural and ordinary meaning, convey more than the mere fact that the name of the person of whom they are spoken is not Einstein. Thus, even to establish a natural and ordinary meaning, the law of defamation contemplates some intrusion of additional facts into the literal meaning of the words. 13 Extrinsic facts pleaded to establish a true innuendo must have three characteristics. Firstly, they must be facts beyond the general knowledge of the community: see Jones v Skelton [1963] SR (NSW) 644; Grubb, at 324; Tolley v J S Fry and Sons Limited [1930] 1KB 467; O'Brien v Wilson and Horton Limited (1971) NZLR 386. Secondly, they must be capable of proof as facts beyond speculation or assumption. It is necessary at the trial for the plaintiff to prove the facts asserted: Burrows v Knightly (1987) 10 NSWLR 651 at 656. Thirdly, they must be capable, if proved, of transforming an otherwise innocent publication into one which is capable of defaming the plaintiff in the minds of those who have knowledge of the extrinsic facts. 14 It is hardly necessary to add that the facts must be, by definition, extrinsic to the matter complained of - that is, not contained within it. 15 A plaintiff is not confined to individual facts in order to establish the additional meaning. It is possible for a matrix of facts with the necessary characteristics to do so. 16 It is now necessary to analyse the facts particularised by the plaintiff in the light of the above observations. They can be considered in groups. 17 The first two facts pleaded are that Louis Bayeh is an underworld figure, and that he has the reputation of being involved in prostitution and the supply of drugs. The first is not an extrinsic fact, whether capable of proof or not, because it is stated explicitly in the matter complained of. The plaintiff will not be permitted to amend by pleading extrinsic fact (a). The second identifies Bayeh as a particular kind of underworld figure, and speaks of his reputation. That asserted reputation is capable of proof, and is relevant to the imputations, but would not alone be sufficient to permit an inference that his fiance was a prostitute. 18 The alleged facts particularised as (f), (o), (p) and (q), properly regarded, are not facts at all. They are no more than inferences, assumptions or conclusions that might (or might not) be drawn or made by an individual. They provide the reasons for the conclusion the plaintiff would seek to have the jury draw from the matter complained of. They articulate the reasoning process in the mind of a hypothetical reader that the plaintiff would seek to exploit in order to establish that the publication conveys the imputations on which she relies. They are merely argumentative. They are not capable of proof in the sense that is necessary if the particulars are to survive. The plaintiff will not be permitted to seek to prove her case of innuendo on the basis of what are asserted to be facts, but are no more than speculation. I will not grant leave to amend by relying on these particulars. 19 Particulars (c),(d),(e),(h),(l),(m) and (n) all purport to make statements of fact concerning behaviour or characteristics commonly attributed to prostitutes or their manner of working. They may be capable of proof, although they tend to be generalisations with little, if any, factual content. Together, the plaintiff would perhaps argue, they (if proved) add up to a single picture or description of a person, who, it might be inferred, was a prostitute. 20 These particulars say nothing about the plaintiff that would be known to a recipient of the matter complained of. The case the plaintiff seeks to make is that, armed with knowledge of the various facts particularised (and ultimately proved), a reader would draw an inference that the plaintiff comes within a relevant description. What is proposed is a form of syllogistic reasoning. The syllogism goes like this:

(i) Prostitutes commonly have (or are commonly believed to have) the characteristics mentioned in particulars (c),(d),(e),(h),(l),(m) and (n); (ii) in the matter complained of it is stated or implied that the plaintiff has the characteristics mentioned in particulars (c),(d),(e),(h),(l),(m) and (n); (iii) therefore, in the matter complained of, it is imputed that the plaintiff is a prostitute. 21 I see nothing wrong with a plaintiff seeking to establish a true innuendo by syllogistic reasoning. But, as a matter of logic, the syllogism is invalid. It may be assumed, for the purpose of the argument, that the plaintiff can prove that some or most or all prostitutes have the characteristics identified or that it is commonly believed that some or most or all prostitutes have some or most or all of those characteristics. It may further be assumed that the plaintiff can show that in the matter complained of it was suggested that the plaintiff had those identified characteristics. It is the final step of the syllogism that is invalid. Even if both premises were established, they do not validly lead to the conclusion promulgated. The conclusion would be valid only if the major premise were that only prostitutes had that combination of characteristics - therefore, that anybody who had that combination of characteristics was a prostitute. 22 However, the law of defamation does not impute to the ordinary reader the reasoning processes of a logician. A certain amount of loose thinking is to be expected and accepted. I have set out the analysis above to illustrate the process by which, so far as I can see, the plaintiff proposes to establish the innuendo. 23 The facts asserted, either individually or in combination, can hardly be said to come within the description of special knowledge. They are, as I have said, broad generalisations asserted to be within common knowledge. They are, in fact, the very kind of facts that the plaintiff earlier relied on in suggesting that the imputations pleaded arise from the natural and ordinary meaning of the publication although this asserted reasoning process was not then articulated. 24 In my view, these asserted facts, even taken in combination, are not facts of the kind that could support a true innuendo; and even if they were facts of that kind, the combination of them would fall far short of the test which must be met if the facts are to be held capable of giving rise to the imputation that the plaintiff was a prostitute. In this respect the discussion by Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 is pertinent.

The plaintiff will not be permitted to advance a case that, on the basis of these allegedly extrinsic facts, the imputations are conveyed. 25 The particulars that remain are those identified as (i),(j) and (k). Mr De Bruyne was identified in the matter complained of as a brothel owner. Accordingly, particular (j) is not an extrinsic fact. Particular (i) is, presumably, included in order to demonstrate the availability of an inference that the photograph of the plaintiff was taken at Redfern. From the caption, stating that the plaintiff was photographed "outside the Commission", and the fact, asserted in the particulars, that ICAC is located in Redfern, a reader might infer that the photograph was taken at Redfern. The plaintiff would wish to put that fact together with fact (c), asserting that prostitutes frequent inner city suburbs such as Redfern. However, having regard to the conclusion I have reached in relation to the other particulars, this would be insufficient to give rise to the imputations pleaded. Besides, the publication itself suggests a reason, other than for the purposes of prostitution, for the plaintiff's presence at Redfern. She was, according to the publication, there specifically because of the ICAC hearing. That fact would contradict any suggestion that she was in Redfern for reason to do with prostitution. There are of course many reasons to be in Redfern besides reasons to do with prostitution and one of them - to attend ICAC hearings - is clearly suggested in the publication. No defamatory imputation is conveyed by the fact of being in Redfern, and that is especially so when an alternative reason is stated in the publication. Particular (d) is diluted, if not nullified, by particular (i). Similarly, even if particular (k) could be established, it would be insufficient alone or in combination with other particularised facts, to permit the imputations pleaded to be established. 26 The effect of these conclusions is that the plaintiff would be unable to make a case of true innuendo based upon the facts particularised and leave to amend will accordingly be refused. 27 As I noted above, the defendant now seeks to challenge imputation (d), although it forbore to take that course when it had the opportunity to do so previously. The argument was that the imputation that the plaintiff is a person of loose morals essentially arises from the imputation that the plaintiff is a prostitute. Imputation (a) having been struck out, imputation (d) also should be struck out. 28 The argument really depends upon the expression "person of loose morals" being co-extensive with the description "prostitute". In the earlier judgment I held that there was nothing in the matter complained of to identify the plaintiff as a prostitute. I do not accept that the two expressions are synonymous. "Person of loose morals" has a much wider ambit than "prostitute", which, to the extent that it is a description of the morality of a person, is of a particular kind of morality or immorality. I am satisfied that, to describe a plaintiff as the fiancee of a "underworld figure" is capable of attributing to her loose morals. I refuse to strike out imputation (d). 29 The orders I make are:-

(i) the plaintiff's application for leave to amend the statement of claim by adding an allegation of true innuendo is refused;

(ii) the defendant's application to strike out imputation (d) is refused;

Last Modified: 09/25/2000 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.