HER HONOUR: Byron Bay in the State of New South Wales plays host to a popular music festival known as "Bluesfest". Mr Peter Noble is the sole director of the company that owns the land on which the festival is held. On about 20 January 2015, an article was published in The Guardian newspaper claiming that noise from the festival had destroyed the local koala population. The article attributed the claim to Dr Stephen Phillips, an ecological consultant. By these proceedings, Mr Noble sues Dr Phillips, his company, Biolink Pty Ltd, the proprietor of The Guardian and a journalist for defamation in respect of the article itself and a series of anterior communications between Dr Phillips and the journalist.
The current version of the pleading is an amended statement of claim filed on 22 May 2017. The defendants have raised a series of objections to that pleading. This judgment determines those objections.
[2]
Pleading of the first matter complained of
The amended statement of claim asserts two causes of action. The first is pleaded only as against Dr Phillips and Biolink, for whom Mr Richardson of counsel appears. The first objection relates to the manner in which that part of the claim is pleaded.
The pleading is novel, in my experience. It seeks to have five disparate publications (attached as schedules A1, A2, A3, A4 and A5 to the amended statement of claim) considered together as a single defamatory publication. The issue raised by the objection is whether that is a permissible approach in the circumstances of this case.
Noble v Phillips [2018] NSWSC 25 | Case summary | Zoe
It is necessary to explain the five schedules to the amended statement of claim. In April 2015, Dr Phillips submitted a paper entitled "Aversive behaviour by koalas (Phascolarctos cinereus) during the course of a music festival in Northern New South Wales, Australia" for publication in the CSIRO journal "Australian Mammalogy". The paper was accepted for publication in November 2015 and published online on 15 January 2016. The paper presented the results of a study of the movements of seven koalas before, during and after "a music festival in New South Wales". The journalist, Mr Slezak, downloaded the paper shortly after it was posted. That is the first act of publication relied upon. The journal paper is schedule A1 to the amended statement of claim.
Mr Slezak contacted Dr Phillips for an interview. Over the next few days, Dr Phillips had a series of conversations with Mr Slezak. Mr Slezak made notes of one interview. Those notes form schedule A2 to the amended statement of claim. A further interview was sound-recorded. The transcript of that recording forms schedule A3 to the amended statement of claim. The two men also exchanged a number of emails, which form schedule A5 to the amended statement of claim. Mr Slezak then produced his article, which is the second matter complained of (schedule B to the amended statement of claim).
Dr Phillips accepts that he published the material in schedules A1, A2, A3 and A5. Schedule A4 is in a different category. The article in The Guardian attributes a number of statements to Dr Phillips. Some are presented in quotation marks, others are not. Schedule A4 is a collection of all of the statements attributed to Dr Phillips without quotation marks. Dr Phillips denies having made statements in those terms to Mr Slezak and there is no independent record of his having done so. There will accordingly be a contest at the hearing as to whether the words set out in schedule A4 are Dr Phillips' words or whether they represent Mr Slezak's interpretation of other dialogue.
Mr Noble pleads, as the first matter complained of, the combination of the journal paper downloaded on 15 January 2016, the notes and records of the various conversations between the two men between 18 and 20 January 2016 (including the contested schedule A4) and the email exchanges as a single publication alleged to have been made by Dr Phillips and Biolink to Mr Slezak and the company that owns The Guardian.
Mr Richardson contends that the pleading in that form is impermissible. He submitted that, even on the most liberal approach as to a plaintiff's entitlement to choose the boundaries of the relevant "publication" (citing Phelps v Nationwide News Pty Ltd [2001] NSWSC 130), it is not permissible to assemble different conversations and email communications days apart as a single matter complained of.
A convenient starting point for a statement of the relevant principles is the decision of Hunt J in Burrows v Knightley (1987) 10 NSWLR 651. That was a claim concerning a defamatory book, extracts from which had been published in serial form in two newspapers. The plaintiff sued in relation to both the publication of the book and its serialisation in the newspaper. The defendants sought to have the pleading concerning the serialisation struck out as being contrary to principle and an abuse of process. Justice Hunt held that the pleading was permissible and declined to strike it out. His Honour stated the law at 657D-F in the following terms (emphasis in original):
"Where the matter of which a plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent, on the face of the matter complained of itself, either an intention on the part of the defendant that it be read together or direct references internally one to the other so that the reader may reasonably be expected to read it together, it is acceptable practice to plead all of the material in the one paragraph of the statement of claim and to identify the imputations said to have been conveyed by the material as a whole. It is not necessary to plead each part separately and to add "true" innuendoes where material published on one occasion is relied upon to give a statement published on another occasion a meaning beyond that which it conveys when considered in isolation."
Justice Hunt concluded his judgment with a cautionary note, emphasising that, although a plaintiff is entitled to plead in that way, it is "not a course which he should lightly be advised to follow" (658B-C). His Honour reminded pleaders (with lovely alliteration) not to overlook the desirability of keeping issues in a defamation action "simple and straightforward, not perplexing and pedantic or convoluted and confusing" (658C-D).
The decision in Burrows v Knightley was considered by Simpson J (as her Honour then was) in Phelps, also a newspaper case. Her Honour said at [10]:
"The issue raises a question about the proper identification, or the boundaries, of "a publication" as distinct from separate publications. There is no rigid dividing line, no categoric test that can be applied to the determination of the boundaries. That is because the examples of publications that may be perceived either as a single entity or as multiple single entities are numerous. There will, no doubt, be many cases where reasonable minds might differ on the proper categorisation, and many where a reasonably minded person would recognise that either classification would be valid. In these cases, the plaintiff has the option as to the manner of pleading."
Justice Simpson reviewed authorities which illustrated the diversity of the circumstances which might give rise to considerations of whether separate but related publications should properly be regarded as one. However, all of the examples considered concerned serialised or separate media publications. Her Honour concluded at [22]:
"Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field."
Mr Connell, who appears for Mr Noble, also relied on the decisions of the Court of Appeal in Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 and The Age Corporation Ltd v Beran [2005] NSWCA 289, both also newspaper cases (involving separate articles published on the same page of the newspaper). Each of those decisions cited Phelps with approval, the latter expressly endorsing the principle that, provided the publication is capable of sustaining the form of pleading chosen, the plaintiff may elect whether to plead individual publications separately or in combination (or both) unless unfairness amounting to abuse would result: Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 at [54]-[57] per McColl JA, Mason P and Beazley JA agreeing at [1] and [2]; Age Corporation Ltd v Beran at [42] per Hodgson JA, Beazley JA and Brownie AJA agreeing at [1] and [55].
Mr Connell relied on Beran v John Fairfax for the proposition that "the manner of presentation of several publications may be such that they were so interlinked that they must be read as one." However, the manner of presentation in that case was very different from the present case; the matter complained of was a newspaper spread divided into two sections with separate titles but united by a banner across the top of the page. Those two articles were more readily seen as a composite publication than the disparate publications sued on in the present case.
After I reserved my decision in the present case, Mr Connell sought leave to file supplementary submissions addressing the application of the Burrows v Knightly line of authority outside the context of related newspaper articles. The supplementary submissions refer to a number of additional authorities. With great respect to Mr Connell, I do not think any of those authorities assists in the determination of the present case.
The first is the Scottish decision of Smyth v MacKinnon (1897) 24 R 1086. Mr Connell submitted that was a case in which "Lord Kilcairney (Lords Justice-Clerk and Young agreeing) in substance allowed a strike-in of the remainder of a chain of correspondence, one letter only being pleaded." I would respectfully not share that understanding of the case. As I read the decision, it was (in the language of this century) an appeal against an interlocutory decision of Lord Kincairney that a particular letter was capable of defaming the plaintiff in that it attributed him with the dishonest appropriation of money. The appellate Court (Lord Justice-Clerk, Lord Young, Lord Trayner and Lord Moncrieff) unanimously upheld the appeal and disallowed that aspect of the plaintiff's claim. The Court held, after considering the letter sued on in the context of the whole chain of correspondence (in which the plaintiff himself had acknowledged an irregularity in dealing with the defendant's money) that the claim based on the letter was "not a subject for an action for libel at all" (1093). I do not think the decision sheds any light on the issue raised by the present application.
Mr Connell relied on the fact that Smyth v MacKinnon was "considered with approval" in The Buddhist Society of Western Australia Inc v Bristile Ltd & Anor [2000] WASCA 210 at [44] (per Wheeler J, as her Honour then was). The context in which it was cited in that case was far removed from the circumstances of the present case and her Honour was in dissent on the issue in question. Upon analysis, the judgment of the majority supports the position of Dr Phillips on the present application.
Bristile was a brick manufacturer which had obtained governmental approval to drive noisy trucks past a Buddhist monastery, the site for which had been chosen by the monks for its suitability for quiet reflection. The Buddhist Society placed material on its website inviting members of the public to write pro forma letters of protest to the relevant Minister and to Bristile's managing director. Bristile sued for defamation, pleading each of three separate items on the website (the two pro forma protest letters and a background document) as a separate defamatory publication. The defendant pleaded a defence in terms contending that those three separate items should be taken as an "entire package of information". The reason for pleading the defence in that way was to support a Lange defence which would be available in the case of the letter to the Minister but not in the case of either of the other publications considered separately.
The judge at first instance struck out the defence on the basis that the pro forma letter to Bristile was a separate publication which did not "arguably have any function as a communication on a government or political matter". The Buddhist Society sought leave to appeal on the ground that the judge erred in holding that the three separate items could not be categorised as "part of a package of information which constituted the dissemination of information, opinions and arguments on a government or political matter." The majority (Anderson and Owen JJ) rejected that ground, saying at [10]:
"In our opinion, Steytler J was correct to regard the letter in question as a separate libel. The letter, or pro forma letter, is not part of the other two items. It is drawn up to be read as a single document, not as part of one larger document. It has its own substantive identity. Its peculiar purpose is not to inform the public, or any section of the public, about political or governmental matters. It is drafted as a discrete written communication unconnected in form or by reference to its content to any other document. In its electronic existence as part of the content of the web site, it is a separate "file" and is intended to be, and would be, called up and viewed as a separate article. It has an individualness of form and purpose. We are of the opinion that in the context of the law of defamation, it must stand or fall on its own. We would not uphold this ground of appeal."
Justice Wheeler was in dissent on that issue. Her Honour considered that the defence should not have been struck out on that basis because the pro forma letter to Bristile might arguably be considered to be a "political" communication when considered in the context of the other material on the website. It was in that context that her Honour cited Smyth v MacKinnon as authority for the proposition that "in the case of an alleged libel contained in a letter, the whole of the correspondence may be the relevant context" (at [44]). Her Honour would have allowed that ground but dismissed the appeal for a different reason. The decision holds, by majority, that the letter was correctly pleaded as a separate publication.
Mr Connell's supplementary submissions next noted that Smyth v MacKinnon was applied in Brown v Marron (Unreported, Supreme Court of Western Australia, Steyer J, 1 December 1998) at 3. Mr Brown sued for defamation in respect of a letter written by Mr Marron to the manager of a golf club suggesting that Mr Brown was not suitable for membership of the club. The pleader assumed that the letter had been sent by post. On that understanding, it was sued on as a stand-alone publication. The defendant admitted writing the letter but said that he had delivered it in person and had contemporaneously explained and qualified parts of the letter at a meeting of the club. He was allowed to amend his defence so as to raise defences based on imputations other than those pleaded by the plaintiff (the defendant's imputations allegedly arising from the additional words said at the meeting).
The decision holds that a defendant may plead contextual material where that material informs the meaning of the words sued on by a plaintiff and may plead additional imputations based on that contextual material. Following the decision of the Court of Appeal in Fairfax Media Publications Pty Ltd v Bateman (2015) 90 NSWLR 79; [2015] NSWCA 154, the permissibility of such a pleading in this State may be doubted. Further, I am not aware of any case in this State which has gone to trial on a dispute as to the scope of the relevant "publication"; the practice in this State would have seen the defendant's plea in Brown v Marron brought forward as a strike-in application.
The decision is of some relevance in its discussion as to what might be relevant contextual material. Justice Steytler said:
"It seems to me also to be plain that contextual material of that kind might include, as it is said to do in this case, newspaper cuttings attached to the letter the subject of the plaintiff's complaint. Moreover, it seems to me that an oral explanation or qualification of written material made simultaneously with the reading of that material might also comprise relevant contextual material. There is, I think, no relevant distinction between that situation and one of the kind which occurred in Thornton v Stephen, supra, in which one newspaper article referred to another in the same issue or in Smyth v MacKinnon, supra, in which a letter was required to be read in its context in the whole of the correspondence of which it formed a part. The fact that the contextual material is oral rather than in writing seems to me to be of no significance if, in truth, it qualifies the meaning of the written material at the time at which that material is read."
Those remarks were approved in the substantive judgment in the same proceedings: Brown v Marron [2001] WASC 100 at [54] per Owen J (as his Honour then was). However, his Honour noted that the fact that the additional material pleaded by the defendant provided relevant context did not provide "the complete answer" as to what was the relevant "publication" (at [55]). As to that question, Owen J said (at [56]):
"Each case must depend on its own facts. There must be an intimate connection between the primary source of the alleged defamation and the other material which is said to form part of the context. The primary and secondary sources must be so closely connected, interwoven or enmeshed that it is necessary to take them effectively as one transaction in order to arrive at the true import and meaning of what was written and said. The requisite degree of intimacy will usually (although not always, for example in the serialisation situation) demand contemporaniety. It will be necessary to consider all of the surrounding circumstances to decide whether the secondary materials are so intimately connected with the primary sources that they are to be taken to be a part of the context which might affect the way in which the ordinary reasonable reader would understand the words complained of."
Justice Owen was persuaded that, in the circumstances of that case, the very close temporal proximity between the delivery of the letter and the defendant's verbal presentation at the meeting meant that the additional material pleaded by the defendant should be taken into account "as part of the context against which the words complained of in [the letter sued on by the plaintiff] are to be assessed" (at [58]).
Finally, the supplementary submissions relied on two decisions from the province of New Brunswick in Canada relating to claims for defamation based on conversations. Leaving aside the fact that they were concerned with the construction of a local statute, those decisions stand for the unexceptionable proposition that, where the relevant defamation has occurred as a result of a question and answer, it is impermissible for a plaintiff to plead only the answer: Harris v Clayton (1881) 21 NBR 237; applied in Sonier v Breau (1912) 41 NBR 177 at 180.
None of the decisions relied upon in the supplementary submissions derogates from the authority of the principles stated by Simpson J in Phelps set out at [13] above. I consider it appropriate to determine the present application in accordance with the test stated in that case, which holds that the plaintiff is entitled to select the manner in which to present the case, subject to "unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen".
In defence of the plea of a composite publication, Mr Connell submitted that it is clear Mr Slezak was gathering a body of material with which to formulate a newspaper article. He submitted that the communications between the two men were intended to convey a total "package" of information to Mr Slezak. I accept that it is reasonably arguable that a source's provision of separate pieces of information on a subject might fall within the approach accepted in Burrows v Knightly, which begins with an inquiry as to whether there is apparent, on the face of the matter complained of, an intention on the part of the defendant that related material published on different occasions be taken together. That determination must always be made according to the individual facts of the case and having regards to questions of fairness.
In Phelps at [25], Simpson J noted that diversity of content might be a relevant consideration in determining whether individual items are appropriately regarded as individual or composite. Her Honour said:
"Where the content of one is significantly different from the content of the other, quite different imputations might arise, and quite different defences might be able to be raised. In such a case one would generally expect the items to be pleaded separately."
Mr Richardson submitted that the diversity of the content of the individual parts of the first matter complained of in the present case is such as to require them to be pleaded separately.
As to defamatory meaning, Mr Richardson submitted that there is a "vast qualitative difference between the relatively lurid tone and content of schedule A4 and the scholarly, anodyne (if not arid) content of the other publications". He submitted that schedules A1, A2, A3 and A5 are plainly incapable of being defamatory, while schedule A4 may be in a different category. He submitted that the prejudice is particularly acute in that context, since Dr Phillips denies publication of the only part of the composite publication that potentially lends it a defamatory meaning. There is much force in that submission.
As to defences, it is clear that different defences might be able to be raised according to whether the five items are regarded as individual or composite. As noted by Mr Richardson, any defence of qualified privilege or honest opinion would have to be based on the content of the relevant matter and the circumstances of its publication; quite different answers would be obtained to those inquiries depending upon whether they were considered separately or together. That is not necessarily determinative; where separate items are properly regarded as a single publication in accordance with the approach accepted in Burrows v Knightly, there is no relevant prejudice if that approach gives rise to different defences. However, as explained by Simpson J in Phelps, diversity of that kind might inform the question whether the separate items are properly regarded as a single publication.
Finally, Mr Richardson pointed to unfairness on the basis that any claim in respect of the journal paper taken alone would be out of time, since it was published on 15 January 2016 but was not part of the matter complained of in the original statement of claim filed on 20 December 2016. The amended statement of claim was not filed until 22 May 2017. Mr Connell disputed that interpretation, contending that the journal paper was caught by the terms of the original statement of claim. Alternatively, he foreshadowed an application for an order extending the limitation period.
Mr Connell submitted that it is "absurd" to suggest that the pleading deprives the first and second defendants of their right to plead proper defences. However, the written submissions addressed only the first point explained above (Dr Phillips's denial that he published the content of schedule A4). The submissions went into considerable detail to establish that there is at least a triable issue as to whether there might have been a further conversation not recorded in the material produced thus far in which Dr Phillips said the things attributed to him in the article in The Guardian. Mr Connell submitted that the alternative (that Mr Slezak made up the additional material) seems unlikely. However, I do not think it is suggested that Mr Slezak made anything up but simply that the statements he attributed to Dr Phillips, where not in quotes, reflected Mr Slezak's own interpretation of information he had received and did not accurately reflect what Dr Phillips actually said.
In any event, with great respect to Mr Connell, the submissions ultimately served to illustrate the unfairness of a composite approach. Even on an interlocutory application to be determined by a judge, the issue of publication was presented as one of complexity. In my assessment, the case as pleaded would be likely to cause considerable confusion for a jury.
I am satisfied that this is a case in which the manner of pleading chosen by the plaintiff should not be permitted. In my view, it is not reasonably open to plead the matter set out in the five schedules as a single publication owing to their disparate nature.
Even if that is wrong, I am satisfied that the composite pleading is likely to cause prejudice in the conduct of the defence, for two reasons. The first is the dispute as to schedule A4 which, in my view, significantly complicates the issue of publication and is likely to cause complexity and confusion at the trial: cf The Age Corporation v Beran at [42]. The second is the question of defences, particularly the defences of qualified privilege and honest opinion. The journal paper is a serious research piece submitted for publication in a specialised professional journal. Taken alone, defences of qualified privilege and honest opinion obviously might be available. Different issues arise if it is lumped together with other material which includes comments not expressed in Dr Phillips' own words.
For those reasons, I am satisfied that the pleading of the first matter complained of must be struck out.
A question arises as to the extent of any leave to re-plead. Dr Phillips and Biolink submitted that schedules A1, A2, A3 and A5 are incapable of conveying any defamatory imputation of and concerning the plaintiff. Mr Richardson submitted that those publications simply convey something along the lines that a scientific study has found evidence that noise from a music festival has caused deaths in a local koala population.
While there is some force in that submission, I am not persuaded that it is appropriate to confine the basis on which the plaintiff may attempt to re-plead any case against Dr Phillips and Biolink.
[3]
Joint liability for the article in The Guardian
The second objection raised by Dr Phillips and Biolink relates to the pleading that seeks to hold them liable as a primary publisher of the article in The Guardian.
The circumstances in which a person who has given a journalist quotes for attribution may be held jointly liable for the publication of an article featuring those quotes were considered by me in Dank v Whitaker (No 1) [2013] NSWSC 1062 at [22] and [26]. That decision was upheld by the Court of Appeal in Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [137], [142] and [144]. Those decisions establish that, while each case turns on its own facts, in order to establish that the source is liable for the publication of the whole article, it is ordinarily necessary to establish that he or she assented to the publication or exercised some form of control over it.
The plaintiff has provided lengthy particulars of the contention that the article published in The Guardian is a publication by Dr Phillips and Biolink. As submitted by Mr Richardson, the particulars are prolix and repetitive. It was submitted that they might be struck out on that basis alone. Certainly, the particulars are not helpful in distilling the issues in the proceedings.
Particular (a) is merely introductory, asserting that Dr Philips "procured and conduced in the publication of [the article] in the following circumstances." Mr Richardson submitted that none of the facts alleged in the particulars that follow is capable of establishing the necessary assent or control and that, rather, they are merely descriptive of ordinary communications between a source and a journalist.
Upon close reading of the particulars, I agree. Close reading is required owing to the density of the language used. For example, particular (b) opens with the assertion that Dr Phillips published the various components of the first matter complained of "for the express purpose of having them republished in an article in Guardian Australia." That, in turn, is asserted to be the inference that may be drawn from the fact that Dr Phillips knew he was communicating with a journalist and giving him information "for the express purpose of republication as content of a publication in Guardian Australia." The reasoning is circular and, upon analysis, says little more than that Dr Phillips knew he was talking to a journalist who planned to write an article (as journalists do).
Particular (b) continues:
"The first defendant on his own behalf and on behalf of the second defendant agreed to speak to the third defendant and to continue to speak to him and to respond to enquiries made by email on the topic of the journal paper and volunteered additional information as to the fate of the koala population after the time to which that study related, as reflected in the content of the first matter complained of and to cooperate with him in providing content for publication on the subject matter of the first matter complained of."
As submitted by Mr Richardson, those allegations are merely descriptive of ordinary communications between a source and a journalist.
Particular (c) asserts:
"In so communicating the content to [the journalist], [Dr Phillips] exercised control over the content of the second matter complained of by choosing the words which he published to [the journalist] (including by agreeing to the taping of the words in schedule A3) in the expectation that those words or their sense and substance would be reproduced".
I do not accept that one can control the words of others by controlling one's own choice of words. My experience has been otherwise. In a continuing narrative within the same lengthy paragraph it is asserted that Dr Phillips was "forewarned of the proposed content of the second matter complained of" by virtue of the terms of the inquiries made of him by the journalist and that Dr Phillips and Biolink "controlled the content of the second matter complained of by their various responses and silence having been subject to those enquiries". Again, those contentions reflect a curious notion of control.
Confusingly, particular (d) relies on the fact that Dr Phillips did not seek or exercise any opportunity to check the article; that would suggest an absence, rather than an exercise, of control. Particular (e) makes the surprising assertion that, by speaking to the journalist, Dr Phillips gave express or implied authority to "add headline material" and thus exercised control over and gave assent to the choice of headline.
By way of further example, particular (g) states:
"In agreeing to speak to the third defendant, in volunteering to him the content of the first matter complained of, in telling him "of 20 koalas seen within about one kilometre of the site in 2010 none are still alive", "what used to be a robust population is no more" and that movements "are very costly for a marsupial like a koala", in referring to his alleged endorsements by other experts in schedule A2, in being aware that he was and would be the sole source of the content of a proposed publication in Guardian Australia insofar as containing allegations concerning the destruction of the koala population by the operation of Bluesfest, the first defendant and through him the second defendant presented the first matter complained of to the third defendant as content for publication by the fourth defendant which was obviously newsworthy and obviously of immediate public concern. Such content was and was intended to be far more likely to be published by Guardian Australia than the journal paper, which was more anodyne in its content and related to events some years before."
The pleading continues in that vein. I do not think it is necessary to address every individual particular.
Rule 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) confers power on the Court to strike out any part of a pleading if the pleading:
"(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court."
In my view, the particulars have a tendency to cause embarrassment or delay. They are unduly prolix. They combine disparate propositions in narrative form. Ironically, they are also uninformative. For example, particular (g) set out above includes, by way of assumed premise, that Dr Phillips was "aware that he was and would be the sole source of the content of a proposed publication in Guardian Australia insofar as containing allegations concerning the destruction of the koala population by the operation of Bluesfest". However, the facts, matters and circumstances relied upon to support that assertion are not included in the lengthy discourse.
The particulars have little to do with the test of assent or control established in the decision in Dank. The narrative form of the particulars fails to distil any comprehensible basis for the contention that Dr Phillips may be inferred to have placed himself in the role of a publisher. For those reasons, I am satisfied that the pleading as against Dr Phillips and Biolink of publication of the second matter complained of should be struck out.
[4]
Liability for the article in The Guardian as a republication
The plaintiff has pleaded in the alternative that Dr Phillips and Biolink are liable for the publication of the article in The Guardian on the basis that it was a republication of the first matter complained of (paragraph 9A of the amended statement of claim). The pleading specifies that the republication is relied upon as a separate cause of action.
In light of my conclusion as to the manner in which the first matter complained of is pleaded, the republication pleading cannot stand.
Mr Richardson made submissions as to whether the article in The Guardian is reasonably capable of being a republication of any of the schedules considered separately. I do not think it is appropriate to determine those issues until it is known whether and in what manner Mr Noble would seek to re-plead any claim against Dr Phillips and Biolink.
[5]
Objections to imputations - form
The pleading specifies three imputations alleged to be conveyed by both matters complained of. All defendants object to the form of the imputations on the grounds of imprecision.
Imputation (a) in each case is:
"The plaintiff as director of the Byron Bay Bluesfest caused loud music to be played at festivals thereby causing the local koala population to be almost wiped out."
On behalf of the first and second defendants, Mr Richardson submitted that the imputation is imprecise by reason of the structure of the imputation: the plaintiff "caused" an act "thereby causing" a consequence. He submitted that it is unclear what act or condition is attributed to the plaintiff. Is it simply that he caused loud music to be played at festivals, which happened to cause damage to the koala population, or is it something more?
Mr Potter, who appears for the third and fourth defendants, took a similar objection, submitting that the word "caused" is so imprecise and vague as to be embarrassing. He relied on the decision of Hunt AJA in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 163 where his Honour described "caused" as a "weasel word" (a word of convenient ambiguity). One of the imputations considered in that case was:
"That the plaintiff caused the rape and murder of Anita Cobby by Leslie Murphy in that he was one of a number of men who had anal intercourse with Murphy when he was under thirteen years of age which acts caused Murphy such grave psychiatric damage that he raped and murdered Ms Cobby."
Justice Hunt considered that the ambiguity as to how the conduct attributed to Mr Marsden "caused" the consequence identified was one which would be "destructive of a trial involving such emotive issues".
Mr Connell responded that the ordinary reasonable reader would think less of somebody who engaged in conduct that had the consequence alleged. With respect, that does not address the objection. The vice of the imputation is that it does not make clear what act or state of mind is alleged to be attributed to the plaintiff by the matter complained of. In most circles, the act of causing loud music to be played is not in itself discreditable; the consequence is essential to the defamatory sting of the imputation. But the imputation does not explain the connection. It simply specifies an event (loud music) and a consequence (loss of the local koala population). The words "thereby causing" fail to specify whether the consequence was one the plaintiff knew or intended would flow from his production of a loud-music event or whether he was reckless or negligent or none of the above. On one view, the imputation attributes no discreditable act or condition to the plaintiff. I am persuaded that the imputation must be struck out for imprecision.
Imputation (b) is:
The plaintiff as director of the Byron Bay Bluesfest caused loud music to be played on the site in disregard of the known risk of causing the death of members of the local koala population.
Mr Potter repeated his submission as to the use of the word "caused". However, in imputation (b), I do not think the same problem arises. It is clear enough what is meant in saying that Mr Noble as director of Bluesfest "caused" loud music to be played on the site.
Mr Richardson submitted that the word "disregard" is imprecise because it is capable of capturing negligence or recklessness or something the plaintiff knew and intended. I do not accept that submission. In my view, to attribute someone with disregarding a "known risk" is to accuse him of ignoring something of which he is taken to have been aware. In my view, imputation (b) is adequately precise.
Imputation (c) is:
The plaintiff as director of the Byron Bay Bluesfest caused loud music to be played on the site in disregard to the known risk of causing the death of members of the local koala population with the consequence that most of the local koala population died.
The only difference between imputations 7(b) and 7(c) is the addition of the last clause. The additional clause does not alter the sting of the imputation but elevates it to one of greater seriousness. On that basis, the imputation is not bad in form but should arguably be allowed only as an alternative imputation (with imputation (b) standing as the fall-back imputation). That point was not taken by the parties and accordingly it will be necessary to hear the plaintiff on that issue.
[6]
Objections to imputations - capacity
The third and fourth defendants submitted that imputations (b) and (c) are incapable of arising from the second matter complained of. Mr Potter acknowledged the high bar a defendant faces on that issue, as reiterated by the Court of Appeal in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227. However, he submitted that the matter complained of is simply incapable of conveying that Mr Noble acted in disregard of a known risk. On the contrary, it describes the plaintiff as a person who is passionate about koalas.
Mr Connell's submissions have persuaded me that imputations (b) and (c) should go to the jury. He submitted, in effect, that the matter complained of would be understood by the reader to present Mr Noble as being "on the back foot" and "protesting too much" in response to the allegations put to him. It is perhaps not a strong claim but on balance I have concluded that I am required by authority to leave the issue of defamatory meaning to the jury.
I direct the parties to bring in short minutes of order reflecting these reasons and for the future conduct of the proceedings.
[7]
Amendments
09 February 2018 - (No 2) inserted against Case title
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Decision last updated: 09 February 2018