Is it perverse to infer from the plaintiff's dishonest act his dishonesty of character?
46 The defendant's contention that even if the article stated that the plaintiff had behaved dishonestly in organising the fight, it was perverse to infer that he was a dishonest man rested on a contrast between the narrowness of what could be collected from the article and the extreme breadth of the imputation. The contention fails.
47 It is necessary to deal at the outset with the defendant's first "basic proposition" advanced in its written submissions of 13 August 2002, namely "as a general proposition a publication which talks about a specific incident is incapable of supporting an imputation of general application".
48 In the first case cited for it, Boyd v Mirror Newspapers Ltd [1982] 2 NSWLR 449 at 455, Hunt J had under consideration an imputation: "that the plaintiff had so allowed his physical condition to degenerate that he was a hopeless second row forward in first grade rugby league." Hunt J said:
"Secondly, the defendant complains that the imputation is expressed in general terms, and that it should be restricted to the plaintiff's performance in the particular game in which he played for Manly against South Sydney and which is the subject of the article. In most cases , of course, a description of one specific incident is incapable of supporting an imputation expressed in terms of general application: Bishop v Latimer [(1861) 4 LT (NS) 775]. This is a principle which I discussed in Singleton v John Fairfax & Sons Ltd [(Hunt J, 20 February 1980, unreported)]. The principle might have been relevant in this case had the plaintiff's performance in the South Sydney game been criticized upon the basis that it demonstrated a loss of form by the plaintiff on that occasion. But the criticism here is not restricted to the plaintiff's performance lacking form. It says that his performance was bad because he lacked condition. Condition of the order here described is not something which comes and goes in the space of one week, and the plaintiff is, in my view, justified in expressing his imputation in the general terms in which it is expressed, without restricting it to the particular game which is the subject of the article." (emphasis added)
49 In Penton v Calwell (1945) 70 CLR 219, Dixon J, sitting in the original jurisdiction of the High Court, was dealing with a newspaper article which said of the plaintiff that he had told one particular lie. It also said: "Some time ago we libelled Mr Calwell deliberately. We do so again by saying that he is maliciously and corruptly untruthful; in other words a dishonest, calculating liar." The issue with which Dixon J was concerned was posed thus at 224-225:
"Under the amended particulars of justification, the defendant now picks out some specific parts of the statements ascribed to the plaintiff, and says with more particularity wherein they were contrary to fact, and alleges in each case that the statements were made by the plaintiff knowing them to be untrue, or without honest belief in their truth. The instances, however, cover a period of time extending from November 1941 to the date of publication of the libel three yeas later, and cover a great number of independent matters. As the defendant construes the libel, it may be necessary for him to establish that the plaintiff is an habitually untruthful person. The plaintiff himself, however, has, by his counsel, contended before me upon the present summons that this is not the true meaning of the libel set out in the statement of claim which, according to his construction, contains a charge of untruthfulness on a specific occasion and in relation to a specific matter.
The first question for my determination is, therefore, whether the defendant's construction may be placed upon the libel."
50 Dixon J resolved the question in the following way at 226:
"It is clear enough that the words complained of do contain a specific charge of untruthfulness in relation to the question of censorship with reference to the escape of Japanese prisoners at Cowra. But, in my opinion, the words complained of are capable of a further meaning, namely, a meaning that charges the plaintiff with more frequent, or even habitual, mendacity. Whether the words bear the meaning is a matter for the jury. If the jury give that meaning to them, a plea of justification would not be made out except by proof of the truth of the words in that sense. I think that the reference to a previous deliberate libel upon the plaintiff and the paragraph, not included in the statement of claim, referring to lies spoken under the privilege of parliament are enough to enable a jury to say that a general charge of untruthfulness is contained in the words 'We do so again by saying' &c."
51 In Warren v Tweed Shire Council [2002] NSWSC 211 the publication sued on criticised a draft "Species Impact Statement" prepared for the use of the Council. Imputation 4(a) was "that the first plaintiff was incompetent as an environmental consultant". Levine J struck it out for the following reasons:
"As to imputation 4(a) it is bad in form. It fails to specify the act or condition, that is, what constituted the incompetence. The matter complained of is very specific in its criticism of the draft SIS. The imputation does not specify the manner in which it is said the first plaintiff (assuming the matter to have been published of him) is alleged to have been incompetent. For that reason it will be struck out.
I would add that I would otherwise not be persuaded of the capacity of the matter complained of to carry this imputation. The matter is directed to the draft SIS and not its author. The author of the draft SIS is not described in any way in the matter complained of, let alone as ' an environment consultant' . The generality of such an imputation is incapable of being carried further in circumstances where the matter complained of refers only to one specific item of work."
52 In Strasberg v Westfield Ltd [2002] NSWSC 689 the relevant imputations were:
"4(a) The plaintiff dresses in such an inappropriate manner that complaints were made against her.
(b) The plaintiff dressed in such a provocative manner that complaints were made against her.
6(a) The plaintiff dressed in such an inappropriate manner that she caused complaints."
53 Levine J said at [3]-[4]:
"The defendant does not object to these imputations save to the extent that they might be understood to impute a general condition as opposed to an incident specific act. It is contended that the difficulty with these imputations would be overcome if each was amended to read: ' The plaintiff was dressed …'
… The publications complained of are 'incident specific' and are incapable of supporting any imputation as presently drawn which lends itself to characterisation as an imputation of general application ( Singleton v John Fairfax and Sons Ltd , Hunt J, unreported, 20 February 1980; Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 455F; Warren v Tweed Shire Council [2002] NSWSC 211 at [20] per Levine J)."
54 In view of the fact that the decision of Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, 20 February 1980, unreported, Hunt J) has been referred to by Hunt J and by Levine J, it is convenient to note it. Hunt J described the background as follows:
"Both the plaintiff and his companion are reported to have been charged on two counts, with assaulting police and with resisting arrest."
55 Six imputations were pleaded. The first was "(a) That the Plaintiff was a homosexual." Hunt J said (page 5):
"Next, it is submitted by the defendant that an allegation of one action by the plaintiff which is capable of imputing some homosexual tendencies cannot amount to an allegation that the plaintiff was a homosexual. The imputation of being a homosexual, it was said, involved some consistent course of conduct which could not be based upon one incident only. I do not think that the common understanding of the word is so limited. In any event, it is not so clearly an untenable claim that it should be struck out."
56 The defendant's first "basic proposition" was that "as a general proposition" a publication dealing with a specific incident is incapable of supporting a general imputation. So put, the proposition is consistent with a concession by counsel for the defendant during oral argument that an imputation of a particular piece of dishonesty can support an imputation that the plaintiff is dishonest, "depending upon the precise way it arises". The contention in oral argument was only that here the particular piece of dishonesty alleged did not support the imputation. As the concession suggests, propositions which are "general" admit of exceptions in particular circumstances. The existence of exceptions is supported by what Hunt J said in Boyd v Mirror Newspapers Ltd, where the principle was described as applying in "most cases", but not all. That case is an illustration of an exception to the general rule alleged. Incidentally, Bishop v Latimer, to which Hunt J referred, does not in fact support the proposition asserted by Hunt J: rather, as the defendant's written submissions of 12 August 2002 say, it supports the second "basic proposition", that an imputation in general terms cannot be justified by proof of a single incident.
57 The passage from Dixon J's judgment in Penton v Calwell does not support the defendant's argument. It is a decision on the common law, not the statutory system turning on "imputations" which exists in New South Wales. So far as it is applicable, it indicates that a general charge of untruthfulness can be communicated by general words. It does not deal with the question whether a general charge of untruthfulness can be communicated by an allegation of untruthfulness in one specific incident.
58 The language of Levine J in Warren's case and Strasberg's case was not directed to any absolute or universal proposition which could assist the defendant. It dealt only with the incapacity of the specific incident referred to in each case to support a general imputation.
59 Finally, Singleton's case is not adverse to the plaintiff. It is an illustration of how one incident can support a general imputation - or at least how an allegation of a general imputation based on one incident was not so clearly untenable that it should be struck out before trial.
60 Hence the defendant's first "basic proposition" is not a bar to the plaintiff's success. The first "basic proposition" merely calls for close and careful attention to the specific circumstances with a view to determining whether the specific conduct alleged in a particular case, unlike specific incidents alleged in other cases, can support a general imputation. Here it does.
61 The article does not suggest that the plaintiff's act is other than an isolated act of dishonesty, but it does suggest that it is a most serious act of dishonesty. It involved gambling with one man's health (that of Chavez), exploiting another man's reputation (that of Tszyu), doing it only for money, doing it in a way which was attracting great criticism in America, both among the public and the authorities which regulate boxing, and doing it in a manner justifying the arrest of the plaintiff. While a person can do a dishonest thing without being thought a dishonest person, some things are so dishonest that one can infer that only a dishonest person would do them. The activities attributed to the plaintiff in the article are so extensive, serious and risky that it is open to ordinary reasonable readers to infer that only a dishonest person would have done them.