JUDGMENT (Imputations - form - publication - particularisation)
1 On 28 October 1998 the plaintiff sought leave to file a Further Amended Statement of Claim. An Amended Statement of Claim had been filed on 20 September 1992. The original initiating process had been filed on 10 August that year.
2 By his September 1992 Amended Statement of Claim the plaintiff structures his action against the defendants as follows.
3 The first defendant (the ABC) is sued in respect of four broadcasts at separate times on 7 July 1992 (the four matters complained of set out in Schedule 1 to the pleading).
4 The fourth defendants (Joe Khoury and Kinsarva Pty Limited trading as Al Bairak Newspaper ) are sued in respect of a publication "on or about 9 July 1992" of an article in Arabic, the original of which is Schedule 2 and a translation of which is Schedule 3.
5 The second and third defendants, Joe Khoury and Sayed Obeid, are sued as follows in respect of what is described as the sixth matter being Schedule 4 to the pleading. It is alleged:
"12. Prior to the publication of the First Matter, the Second and Third Defendants or one of them published to the First Defendant and or the Fourth Defendants of and concerning the Plaintiff, the matter set out in Schedule 4 ("the Sixth Matter").
13. Each of the Second and or Third Defendants published the Sixth Matter -
(a) with the intention that it would be republished in the media and/or by the First Defendant and/or the Fourth Defendants;
(b) in circumstances where such republication was the natural and probable consequence of the Second and/or Third Defendants publishing the Sixth Matter;
(c) and thereby authorised and approved the republication of the Sixth Matter and/or are or is responsible for it republication by the First Defendant and/or the Fourth Defendants as aforesaid".
6 Each of the broadcasts (four in number) and the fifth and sixth matters are said to "contain" the following imputations defamatory of the plaintiff:.
"14(a) the plaintiff was guilty of tax avoidance;
or in the alternative,
(b) the plaintiff was reasonably suspected by the Australian Taxation Office of tax avoidance;
further, or in the alternative,
(c) the plaintiff had so conducted himself in respect of taxation arrangements as to warrant the accusation of his business associates that he was guilty of tax avoidance;
(d) the plaintiff had exploited his business associates in order to avoid tax;
(e) the plaintiff used a bogus superannuation scheme to enrich himself;
in the alternative,
(f) the plaintiff so conducted himself as to warrant the accusation of his business associates that he had used a bogus superannuation scheme to enrich himself".
7 On 8 August 1997 I delivered a judgment dealing with a dispute concerning a Notice to Produce and waiver of legal professional privilege, and on 10 July 1998 I dismissed an application by the defendants to have the plaintiff's action stayed or dismissed for want of prosecution. As I understand it notice by the plaintiff of his intention to file this Further Amended Statement of Claim was given on or about 13 August 1996; the matters the subject of the two judgments to which I have just referred in the meantime intervened. It is to be noted however that notice of the proposed amendments was given within the limitation period. The plaintiff seeks to rely now upon the following four new imputations:
"(a) the plaintiff was guilty of illegal tax avoidance;
(b) the plaintiff had used a bogus superannuation scheme to enrich himself;
(c) the plaintiff had so misconducted the affairs of the Media Press Company that it was reasonably suspected by the Tax Department of illegal tax avoidance;
(d) the plaintiff had so misconducted the affairs of the Media Press Company which the plaintiff part owned, that it was reasonably suspected by the Tax Department of establishing a bogus superannuation scheme".
8 The first defendant (the ABC) objects to the proposed imputations on the basis of form and non-differentiation in substance.
9 As to imputation (a) the problems are immediately apparent by the use of the words "guilty" and "illegal tax avoidance" in the sense of clearly giving rise to the Ffrench v Singleton problem of uncertainty of the meaning of the imputation itself. This is irrespective of any available argument that the matters complained of against this defendant are incapable of giving rise to any suggestion of "guilt" at all. Whilst generally it was argued by Mr Caspersonn for the plaintiff that the ordinary reasonable listener would not be troubled by the fine distinctions in law between tax avoidance which is legal and tax evasion which is not, focusing on the question of form, the problems arising from the use of the expression "illegal tax avoidance" are, as I have said, readily apparent. The submissions for the defendant in regard to this imputation are well founded.
10 As to imputation (b) it is argued first the as a matter of impression the imputation is incapable of being defamatory. This I reject. The flaw in the form of the imputation is as to the uncertainty of the meaning of "used a bogus superannuation scheme" it is argued and I think correctly that the charge leading to the suggestion of enrichment is not specified with the requisite precision. I accept the submission of the first defendant in this regard.
11 As to imputation (c) this is in the troublesome form of being a "misconducted" imputation. There are two difficulties in form with this imputation. There is the combination of "misconducted" which suggests guilt on the one hand with "reasonably suspected" which of course is suspicion, on the other. Secondly, it is not the plaintiff who is reasonably suspected by reason of this so-called "misconduct" but rather an entity known as Media Press Company. Any imputation containing the word "misconduct" or indeed the word "conduct" must be rejected if the matter complained of identifies the activities which the pleader purports to wrap up simply in the word "misconduct" or "conduct".
12 In relation to imputation (d) the defects in form identified in relation to imputation (c) are identical.
13 At this point one safely can say that the application for leave to file the Further Amended Statement of Claim should be refused because of the futility arising from the defects in form in the pleading of the causes of action. I would simply add that when one reads the proposed imputations there is also clearly available an argument that the plaintiff would be in breach of SCR Pt 67 r 11(3) as to non-differentiation in substance.
14 The remaining defendants adopted the submissions as to form advanced by Mr Sexton for the ABC and thus they too have succeeded in the substantial application.
15 The second and third defendants nonetheless complain about the allegation in paragraph 12 of the proposed Further Amended Statement of Claim which repeats the terms of paragraph 12 in the Amended Statement of Claim. That paragraph refers to the alleged publication of the sixth matter, "prior to the publication of the first matter" (the ABC broadcast) by the second and third defendants "or one of them" to either the "first defendant or the fourth defendants". The Amended Statement of Claim (September 1992) is defective in its non-compliance with the Rules of Court in giving particulars of publication pursuant to SCR Pt 67 r 12. The complaints by the second and third defendants in relation to paragraph 12 of the Amended Statement of Claim and the proposed Further Amended Statement of Claim, in my view, are well founded. What is there pleaded is mischievous and embarrassing. It is said for the plaintiff that this can be cured by an exchange of correspondence as to particulars. I do not see why the second and third defendants should bear the costs and burden of requesting particulars of what is, in my view, a meaningless averment in paragraph 12 of the pleading of September 1992 six years ago. That was the time for the plaintiff properly to comply with the Rules of Court and succinctly inform the relevant defendants of the case he proposed to make in relation to the publication purported to be pleaded.
16 Paragraph 12 of the Amended Statement of Claim will be struck out.
17 There therefore remains the pleading as constituted by the Amended Statement of Claim filed on 25 September 1992. What the plaintiff proposed to do in relation to that pleading or, indeed, what the defendants propose to do in relation to it will be a matter for them. This is a case where serious consideration should be given by the parties to the nature and extent of its further progress:
18 The formal orders are: