(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: