DEFAMATION - procedure - defence of contextual truth
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DEFAMATION - procedure - defence of contextual truth
Judgment (2 paragraphs)
[1]
Judgment - ex tempore
HER HONOUR: These are proceedings for defamation commenced by a solicitor, Mr George Newhouse, against News Limited and a journalist, Mr Andrew Bolt. The proceedings are before the Court for the second listing hearing in accordance with Practice Note SC CL 4.
Three issues have been raised by the parties for determination at the second listing hearing.
The first relates to the defence filed by the defendants on 11 February 2015. The defence includes a defence of contextual truth which relies upon one single contextual imputation. The plaintiff contends that the contextual imputation is not capable of arising; alternatively, that the contextual imputation is not capable of meeting the statutory requirement that it be an "other imputation" arising "in addition to" the imputations complained of by the plaintiff; alternatively, that the particulars pleaded in support of the contextual truth defence are incapable of proving the truth of the contextual imputation and, alternatively, are incapable of being proved at all and, finally, that the contextual imputation is incapable of having the statutory effect identified as an element of the defence in s 26 of the Defamation Act 2005 (NSW). In the alternative, if none of those contentions is accepted, the plaintiff contends that he should be allowed to amend the amended statement of claim so as, in effect, to appropriate the contextual imputation as an imputation of his own.
The matter complained of deals broadly with the subject of Australia's treatment of a number of Sri Lankan people who are reported to have arrived in Australia by boat. Mr Newhouse is reported in the matter complained of to represent a group of those people. The imputations pleaded by Mr Newhouse as arising from the matter complained of are as follows:
1. The plaintiff, a lawyer, has fraudulently represented to the public that boatpeople whom he represents are refugees when they are not;
2. The plaintiff, a lawyer, has lied to the High Court of Australia in order to obtain a temporary injunction for his clients
3. The plaintiff is despicable in that he has made fraudulent representations to the public about his clients being refugees
4. The plaintiff, a lawyer, is motivated by deceit in representing boat people from Sri Lanka
5. The plaintiff, a lawyer, has acted immorally in his representation of Sri Lankan boat people.
The contextual imputation pleaded in para 9.1 of the defence is:
The plaintiff, a lawyer representing asylum seekers in Australia, acted in an unprofessional manner by publically making an odious comparison, which he well knew to be exaggerated and untenable, between the conduct of the Australian government in seeking to return Sri Lankan boat people to Sri Lanka, and the return of Jews to Nazi Germany.
Ms Chrysanthou, who appears for Mr Newhouse, submitted that the imputation is incapable of arising, for three reasons. First, she submitted that there is nothing in the matter complained of which alleges any unprofessional conduct. Secondly, she submitted that there is no allegation that the comparison referred to in the contextual imputation between the conduct of the Australian Government in seeking to return Sri Lankan boat people to Sri Lanka and the return of Jews to Nazi Germany is odious. Finally, she submitted there is no allegation that Mr Newhouse "well knew" that the comparison was an exaggeration and untenable.
The principal difficulty with the contextual imputation, in my view, lies in the first complaint identified by Ms Chrysanthou. The matter complained of reports that both Mr Newhouse and the former Prime Minister, Malcolm Fraser "have likened returning boat people to Sri Lanka to returning Jews to Nazi Germany". However, the article itself says nothing of the circumstances in which that comparison is alleged to have been made. It is not suggested that it is something Mr Newhouse said in court in the context of an appearance for his clients, unless that comes from a reference at lines 55 to 57 of the matter complained of, as follows:
Newhouse and barrister Ron Merkel, QC, have persuaded the High Court to issue a temporary injunction against returning these 153 to Sri Lanka, and the same superheated rhetoric is heard about torture, the "disappeared" and Nazis.
Even if the matter complained of is to be understood to assert that the comparison referred to in the earlier quote set out above was a submission made by Mr Newhouse in court, there is nothing to attach any suggestion of unprofessional conduct to those remarks. Stripped of any such context, in my view, the matter complained of is simply incapable of conveying the defamatory sting that the plaintiff acted in an unprofessional manner.
If the meaning to be drawn from the matter complained of is that Mr Newhouse behaved in an unprofessional manner by making such a comparison in public remarks, it is difficult to know against what measure that sting is said to be levelled by the words of the matter complained of.
There is no suggestion in the article, nor has it been suggested by the defendants, that the ordinary reasonable reader would take it that a lawyer should not make public remarks about cases in which he is retained and I do not think that is the case. There is, in my view, simply nothing in the matter complained of to assert an allegation of unprofessionalism consisting in the particular remarks identified, as opposed to the conduct attributed to Mr Newhouse in the balance of the matter complained of.
Separately, I do think there is a difficulty with the inclusion of the word "odious". That appears to be a characterisation which the defendants would contend must be placed on the comparison adverted to, but there is nothing in the matter complained of itself to attract the use of that term, unless it is said to emerge from the overall tone of the whole matter complained of, which certainly, I think, suggests criticism of the conduct both the plaintiff and others (cobbled within the broad rubric of "the refugee lobby") engage in.
Finally, I do think there is force in the contention that there is nothing in the matter complained of to suggest that Mr Newhouse well knew that the comparison was exaggerated and untenable.
Accordingly, in my view, accepting the high bar a party must meet in order to have an imputation struck out on the grounds of capacity (see Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 and Favell v Queensland Newspapers [2005] HCA 52; 221 ALR 186), I am satisfied that the contextual imputation is incapable of being conveyed by the matters complained of.
In the face of that conclusion, it is not necessary for me to turn to the vexed question whether it would be appropriate in this case to rule in advance on whether the contextual imputation is capable of arising "in addition to" the imputations complained of by the plaintiff. As noted by Mr Lewis on behalf of the defendants, I have, in another case, observed that there will be occasions on which it is inappropriate to determine that issue in advance of the trial or at least where it is preferable not to: Jones v TCN Channel Nine Pty Limited [2014] NSWSC 1453 at [32] to [36].
It is not necessary to determine that issue in the present context. I would, however, wish to record my views as to the third complaint regarding the particulars relied upon in support of the imputation. In case I am wrong as to whether the imputation is capable of arising, I would indicate that, in my view, the particulars itemised at paras 9.2.4 and 9.2.5 are problematic. As already indicated, Ms Chrysanthou levelled two discrete complaints in respect of the particulars. The first is that the contextual imputation is not capable of being proved by them. The second is that the particulars themselves are incapable of proof.
Particular 9.2.4 is:
There is no evidence that the Sri Lankan government has engaged in conduct against the Tamil people of Sri Lanka that is remotely or rationally comparable to the treatment to which Jewish people were subjected by the Nazi regime during the Holocaust.
It is extremely difficult to conceive of how the defendants would bring forward proof of that matter; that is, seek to prove a negative as to the absence of evidence on what is essentially a subjective issue or, at least, one that stands to be determined according to a term of indeterminate reference.
The proposition taken on by the defendants for proof is whether there can be a rational comparison between the treatment of Tamil people by the Sri Lankan Government and the treatment of Jewish people during the Nazi regime.
In that context, the first question is to know what the comparison was. There is no suggestion that Mr Newhouse stated that the treatment of Tamil people by the Sri Lankan Government was identical to or the same as the treatment of Jewish people under the Nazi regime. There are so many variables as to the way in which any such comparison might be drawn that it is difficult to imagine the issue being determined in the context of a trial based on evidence adduced by the defendants.
Particular 9.2.5 is:
Most, if not all, of the 153 asylum seekers had in fact sailed towards Australia from India and not Sri Lanka.
The practical difficulties of proving that proposition would appear, at least based on the information provided to me during the present hearing, to be insurmountable. Further, as I think noted by Ms Chrysanthou on behalf of the plaintiff, there is no particular directed to the important component of the imputation: that the plaintiff "well knew" the comparison to be exaggerated and untenable.
For those reasons, leaving aside whether the imputation is capable of arising, in my view, as presently particularised, the particulars are incapable of proving the substantial truth of the imputation and some of the particulars appear to be incapable of proof.
Further, against the risk of my being wrong on the capacity issue, it does seem to me that this is a case in which there is a strong argument that the imputation is incapable of having the statutory effect that, by reason of its truth, the defamatory imputations of which the plaintiff complains do not further harm his reputation. That again, however, is an issue which may, in some circumstances, be determined at the hearing rather than at an interlocutory level and so it is not necessary to decide it in the present context.
In the circumstance, I am persuaded that the defence of contextual truth should, for those reasons, be struck out. Therefore, it is not necessary in the present hearing for me to determine the question whether the plaintiff ought to be permitted to appropriate that imputation as one of the imputations of which he complains.
The second issue is whether the defendant should be ordered to give discovery of two categories of documents, as follows:
Category Two: Any contract, agreement or understanding that was in force in about July 2014 which sets out who owns the copyright in articles and/or literary works authored by the second defendant.
Category Six: Any contract, agreement or understanding that was in force in about July 2014 between the first defendant and Queensland Newspapers Pty Limited in relation to the content of the Courier Mail website.
In order to explain why the plaintiff contends that discovery of those categories of documents is necessary, it is appropriate to record something of the history of the issue of publication in these proceedings.
Practice Note SC CL 4 provides in cl 13 that "at the first listing, a defendant is required to inform the Court whether the element of publication is admitted and, if not, the reason for publication is not admitted".
At the first listing of the present proceedings, News Limited informed the Court that publication is not admitted, in broad summary, because News Limited is not the entity that publishes each of the relevant publications. The plaintiff is well on notice of that argument but persists in suing News Limited on the strength of a contention that it appears from its own published documents to accept ownership of the copyright in material published by its various subsidiaries under the various mastheads of the News Group. Plainly, that will be an issue for the hearing.
The categories for discovery sought by the plaintiff go to the issue of any contract, agreement or understanding as to ownership of the copyright in articles authored by the second defendant, Mr Bolt, and any contract, or agreement or understanding in force as between the first defendant and certain entities.
The defendants' response, in respect of the documents sought as to ownership of copyright in articles authored by Mr Bolt, was to note that the defendant has provided the plaintiff with "a list of correct entities to sue". In my view, Mr Newhouse cannot be compelled to sue any particular entity. As already noted, he is on notice of the contention of the first defendant that it is not a publisher of any of the matters complained of. It is his choice whether to proceed to prosecute a claim against that entity in the face of the information that has been provided to him. But I do not think that is an answer to the publication issue, which squarely arises as an issue to be determined in the proceedings on the present pleadings. Accordingly, I am persuaded that Category 2 is necessary.
Category 6 relates to a newspaper which the first defendant alleges is an entity. That does not arise on the pleadings since the plaintiff has not sued in relation to any publication on the relevant website, but that issue has been addressed in correspondence by way of particulars of publication and, plainly, that material must also be discovered for the same reason.
The third application brought forward for the second listing was a dispute as to interrogatories. Mr Lewis accepted that, following my rulings or foreshadowed rulings in respect of discovery, that the first two categories objected to would follow with that ruling; that is the case as to interrogatories 1 to 6 and the interrogatories relevant to the Courier Mail.
The third objection to interrogatories related to a publication in The Australian. Interrogatories 121 to 127 are directed to that publication. The publication is not a matter sued on as a matter complained of by the plaintiff. However, it has been communicated to the defendants that the plaintiff would rely upon the publication of that article as a particular of aggravation. The article in question was tendered by Ms Chrysanthou. It is plainly capable of going to that issue and the plaintiff's intention to rely on it has been communicated to the defendants. On that basis, I am satisfied that the interrogatories directed to publication of that article are reasonably necessary for the resolution of the issues in dispute.
Finally, the defendants object to interrogatories 110 to 114 as follows:
110. Does the first defendant now believe that the second defendant (Andrew Bolt) holds the following opinion:
Mr Newhouse, a lawyer, has acted immorally in his representation of Sri Lankan boat people
111. If the answer to the proceeding interrogatory is in the affirmative, please state the facts upon which the first defendant bases such belief as are known to the first defendant.
112. If the answer to interrogatory 110 is in the affirmative, please state the names of any such person(s) who hold such belief(s).
113. If the answer to interrogatory 107 is in the affirmative, and interrogatory 110 is in the negative, please state the date (or approximate date) that the first defendant's belief changed).
114. If the answer to interrogatory 107 is in the negative, and interrogatory 110 is in the affirmative, please state the date (or approximate date) that the first defendant's belief changed.
I have previously rejected proposed interrogatories directed to the present state of mind of a defendant by reference to the imputations pleaded by a plaintiff. The argument in support of those interrogatories was put slightly differently in the present proceedings from the argument in that other proceeding.
Ms Chrysanthou noted that the matter complained of is still available to be downloaded from the internet. The relief sought by the plaintiff includes injunctive relief to have the allegedly offending material removed. On that basis, it was submitted that a negative answer to the question whether the second defendant holds the relevant opinion would be a powerful piece of evidence in support of the Court granting that injunctive relief.
Other arguments were put, amongst which I would simply note the argument that the tribunal of fact could infer that, if Mr Bolt does not currently hold the relevant opinion, or that if he held it at an earlier point in time, he did not hold it on reasonable grounds. My primary reason for thinking that the defendants should answer those interrogatories is based upon the first argument put by Ms Chrysanthou - namely, that they are relevant to the injunctive relief sought.
For those reasons, I make orders 1 to 8 in the Short Minutes of Orders and the additional directions I have just made.
[2]
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Decision last updated: 15 May 2015