Obermann v ACP Publishing Pty Ltd

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List

20487/00 Natalie OBERMANN v ACP PUBLISHING PTY LTD Judgment

HER HONOUR : 1 By statement of claim filed on 7 September 2000 the plaintiff, Natalie Obermann, claims against the defendant, ACP Publishing Pty Limited, in respect of defamatory imputations she alleges arise from the publication of an edition of a magazine called "the Picture", issued on or about 21 June 2000. 2 For present purposes it may be assumed that the defendant is responsible for the publication of the magazine. In this application the defendant seeks orders relating to the manner in which the statement of claim has been pleaded. 3 It is now necessary to say a little about the publication, again assuming, for present purposes only, the accuracy of the allegations of fact made in the statement of claim. 4 "The Picture" can, not unfairly, be described as low grade pornography. It is a rather cheap looking glossy magazine, partly in colour, partly black and white. It features male and female nudity (in titillating, pornographic, style), lewd, crass and vulgar commentary, and coarse language. Sexually suggestive pictures, articles and advertisements abound, as do advertisements for a range of sexual services and products. Particularly prominent are photographs of women with their breasts exposed. Without wishing to be unduly censorious, I think the magazine may properly be described as distasteful to many people. 5 On pages 70 and 71 appears a double page spread, featuring five photographs of a woman who is naked in four photographs and almost naked in the other. There is an invitation to women to expose their breasts for similar photography, and an offer of $500 to those who do. Through the magazine there are numerous additional references to the payment of money for publication of photographs, letters and poems. 6 Thinly interspersed among this is some material, principally advertising, that lacks any apparent sexual overtones. For example, on the inside front cover is a full page advertisement for a brand of mobile telephones. On page 32 is a full page advertisement for a cabinet housing the necessary paraphernalia for a poker game. There is a crossword puzzle which appears to have no sexual connotations, although a cartoon that does have such overtones interrupts the clues. In full, the magazine runs to 102 pages. It is overwhelmingly sex-centred and pornographic. 7 On page 3 appears material which makes specific relevance to the plaintiff. There is a heading "This sporting BOSOM". The bulk of the page is taken up by two photographs of a woman apparently in a swimming pool, wearing a swimming costume. The top of the swimming costume is askew, exposing her breasts. Her face is clearly visible. One photograph is captioned: "Only in women's water polo do you find SPUNKBUBBLES like these."

The other is captioned: "WET TITS PERK UP POLO'S PULLING POWER." 8 The accompanying script makes it plain that it is the plaintiff who is depicted in the photographs. That the photographs were photographs of the plaintiff is not, at least for present purposes, in dispute. She is said to have been playing in a water polo match at the time the photographs were taken. 9 It was common ground that, apart from what appeared on page 3, the magazine contained no express reference to the plaintiff. 10 The plaintiff claims that this publication defamed her. She has pleaded her case in two different ways. It may here be noted that, although initially she pleaded both cumulatively and alternatively ("further, or in the alternative"), at the hearing she conceded, through her counsel, that she could not proceed on both claims, but maintained her right to pursue the claims alternatively. 11 In paragraph 3 of the statement of claim the whole of the magazine is identified as "the first matter complained of". In paragraph 5 the plaintiff alleges that, in its natural and ordinary meaning, "the first matter complained of" (that is, the magazine as a whole) conveyed ten defamatory imputations. It is necessary only to set out one of these in full. The plaintiff pleads that the publication conveyed the imputation that: "The plaintiff, as a sportswoman, allowed photographs of her exposed breasts to be published in a pornographic magazine." 12 She particularises this by referring to the whole magazine, page 3 in particular, and other specified parts and pages of the magazine. Each of the succeeding imputations pleaded is in similar vein (although there is no complaint that they do not differ in substance). Incorporated in all imputations as framed by the plaintiff is a common element: that is, that the photographs were published in a pornographic magazine. All imputations are particularised in the same way as the first, that is, by reference, firstly to the whole magazine, to page 3 in particular, and then by reference to other identified parts of the magazine. 13 It is therefore an essential ingredient of each imputation that the magazine in which the photographs were published was a pornographic one. The plaintiff cannot succeed in establishing that any of the imputations pleaded in her primary claim were conveyed unless she establishes that the magazine in which they were published was pornographic. Because her claim is that the imputations were conveyed in the natural and ordinary meaning of the matter complained of, that fact would have to be established by reference to the first matter complained of (that is, the magazine) alone. The particularised references to parts of the magazine other than page 3 are directed to establishing that fact. 14 The alternative way the plaintiff pleads her case is by way of true innuendo. In this respect, she identifies as "the second matter complained of" the whole of the contents of page 3. She pleads that ten imputations identical to those earlier pleaded as having been conveyed in their natural and ordinary meaning were conveyed to readers of the magazine with knowledge of certain extrinsic facts. As extrinsic facts she particularises other parts and pages of the magazine. With a few minor departures, these are identical to the references particularised in respect to the plea that the first matter complained of in its natural and ordinary meaning conveyed the defamatory imputations. Again, these particularised references to other parts of the magazine are directed to establishing that the magazine is pornographic. 15 Put simply, the plaintiff has pleaded, primarily, that the whole magazine in its natural and ordinary meaning defamed her by conveying the imputations pleaded. This she seeks to establish by reference to a combination of the material which directly referred to her and other material which did not. In the alternative way she puts her case, she relies on page 3 alone as the matter complained of, but pleads that, (whether it is defamatory alone or not) it acquires a defamatory character by reason of the additional parts of the magazine to which she points. In truth, the two ways in which the plaintiff pleads her case do not differ very widely. The substance of the two claims is very similar. The plaintiff has simply taken advantage of two different means by which a defamation may be established. What may be unusual is that the publication of which she complains lends itself to either of the recognised ways of pleading a defamatory publication. 16 In addition to the claims made in these ways, the plaintiff also alleges that, as a natural and probable consequence of the publication, page 3 has been republished and: "appears in and on lockers and other sites throughout Australia and in particular surf clubs and other locations occupied by water polo players". 17 The defendant raises a number of matters concerning the pleadings. Firstly, it takes issue with the pleading of the whole magazine as the first matter complained of; secondly, it complains of inadequate particularisation of the true innuendo claim; and thirdly, it complains of the particularisation of the republication claim.

1 The first matter complained of. 18 This was the major issue argued on the defendant's application. The defendant seeks to have those parts of the statement of claim that plead the whole of the magazine as the first matter complained of, and therefore the pleading of the imputations as having been conveyed in the natural and ordinary meaning of the magazine as a whole, struck out. 19 The argument concerned the proper identification of a "matter complained of" for the purposes of a defamation action. 20 It is not always easy to identify the proper boundaries of a "matter complained of", and a plaintiff's initial pleading not infrequently gives rise to a complaint by the defendant that either too much, or too little, has been pleaded. The issue has arisen in different ways in a number of cases: see, for example, Dougherty v Nationwide News Pty Limited (1968) 88 WN (NSW) 146; Burrows v Knightley (1987) 10 NSWLR 651; Lucas v John Fairfax Publications Pty Limited [2000] NSWSC 950, unreported, 13 October 2000, per Levine J; Rakhimov v John Fairfax Publications Pty Limited [2001] NSWSC 11, unreported, 25 January 2001, per Levine J; Keating v Newcastle Newspapers Pty Limited [2000] NSWSC 726, unreported, 1 August 2000, per Kirby J; and my own decision in Phelps v Nationwide News Pty Limited & Anor [2001] NSWSC 130, unreported, 9 March 2001. 21 Here, the defendant claims that it is embarrassed by the pleading of the entire magazine. It argued, firstly, that on no view of the magazine could any of it (other than page 3) be said to be "of and concerning" the plaintiff. In my view this is a misapplication of the words "of and concerning" as they are commonly used in the law of defamation. It is not "the matter complained of" that must be "of and concerning" the plaintiff; it is any defamatory imputations conveyed by the matter complained of. It would be quite misleading to focus upon the whole of the matter complained of to determine whether it was "of and concerning" the plaintiff; very frequently, a defamatory imputation will be conveyed by a publication in which, at most, glancing reference is made to the plaintiff and which could not, properly, be said to be "of and concerning" the plaintiff. The fact that the bulk of the magazine does not directly refer to the plaintiff is beside the point. In saying this I am conscious that the editors of Tobin and Sexton; Australian Defamation Law and Practice, Butterworths, 1999, at para 3090, assert that "the matter complained of must be 'concerning' the plaintiff", but I do not believe that this was intended to suggest that the whole of the matter complained of must be "of and concerning" the plaintiff, and if it were so intended, I respectfully disagree with the statement. The authority cited as support for the proposition is Sungravure Pty Ltd v Middle East Airlines Airlibian S.A.L. (1975) 134 CLR1. That case was decided under the Defamation Act 1958, and turned substantially on the construction of that Act. Even in that context, however, I do not read the passage quoted as requiring that the whole of the matter complained of be "of and concerning" the plaintiff. The focus is on whether the matter complained of, firstly, is capable of, and, secondly does in fact, convey an imputation of and concerning the plaintiff that is defamatory of the plaintiff. 22 Senior counsel for the defendant relied upon a passage in the judgment of Lee J in Dougherty, which reads: "In my view, if an article in a newspaper is sued upon and it appears clearly that part of the article relates, not to the plaintiff, but to another person or other persons and/or that part of the article has no bearing in any way upon the meaning which might be conveyed by the other part, then this would justify the irrelevant part being struck out." 23 In my opinion, for a number of reasons, this passage does not have the effect for which senior counsel contended. Firstly, it seems to me that the argument overlooked the important qualification contained within the passage. The passage was urged as justifying the striking out of a part of an article that relates not to the plaintiff but to another person or other persons. But that is only part of the test proposed by Lee J. Despite the use of the words "and/or", it seems to me that to be struck out of the pleading in accordance with Lee J's formulation, it is essential that that part of the article has no bearing in any way upon the meaning which might be conveyed by that part that does relate to the plaintiff. That is the very point of the way the plaintiff frames her case; it is that, whatever might be conveyed by the contents of page 3 alone, a different meaning was conveyed by page 3 when read in the context of, or in conjunction with, the other parts of the magazine identified - that is, that other parts of the magazine do have a bearing upon the meaning conveyed by the contents of page 3. An important part of each imputation pleaded is that the photographs were published in a pornographic magazine; that part of the imputation could not reasonably be derived from page 3 alone, but could very readily be derived from page 3 in the context of the whole of the magazine. In order to determine whether the magazine was pornographic, it will be necessary for the jury to have access to the whole of it. It would be quite wrong to limit the plaintiff to one page only of the magazine, when the centrepoint of her claim is derived from the nature of the magazine as a whole. In the context of this argument, senior counsel also relied upon such parts of the magazine as are not pornographic or sexually suggestive, but these are an insignificant proportion; the jury will be entitled to assess the magazine as a complete entity, including those parts that are innocuous. Those parts will, of course, be available should the defendant wish to challenge the plaintiff's characterisation of the magazine as pornographic. 24 The second reason that the judgment Dougherty does not achieve the result sought by the defendant is that the passage quoted does not fully represent what was said by Lee J. His Honour went on to say: "But great care must be exercised not to strike out any part of the material sued upon which may in any way have a significance in determining the true defamatory meaning and import of other parts or of the whole material. In Gatley on Libel and Slander 6th ed, p 984, the following paragraph appears: ' Libellous passages only to be set out . If the plaintiff is suing in respect of certain libellous passages in an article or letter, he need not set out the whole article or letter; it is sufficient to set out the libellous passages only, provided their meaning be clear and distinct. But if the meaning of the passages taken singly is not clear, or if the 'complexion of the imputations' conveyed by the libellous passages is materially altered or qualified by other passages in the article or letter, the plaintiff must set out the whole article or letter in his statement of claim. If the libellous passages are contained in a book, the plaintiff should set them out as separate passages, indicating in each case the page at which it is to be found. If the libel takes the form of a picture or statue, the picture or statue must be described with the circumstances relied on to support the innuendo.' The cases cited by the learned authors, in my opinion, support the statements in that paragraph and, whilst directed to the obligation which lies on the plaintiff to set out the words complained of in their true context, imply equally that the plaintiff is entitled to set out all that he can fairly claim goes to demonstrate the full force and extent of the imputations he relies on. In Kasic v The Australian Broadcasting Commission [[1964] VR 702, at p 706] Gowens J., after referring to the reference in Gatley to the 'complexion of the imputation' … said: 'Conversely, I consider that if the 'complexion of the imputation' conveyed by the alleged defamatory passages may reasonably be capable of being coloured by the other passages, the plaintiff is entitled to set them out as well, subject to considerations of embarrassment to the defendant.' Where the words in their literal sense convey the defamatory imputation relied upon, it may in many cases not be difficult to separate off parts of the article which in no way add to or detract from that meaning, but where the plaintiff claims that the libellous imputations emerge in their full force and extent only by a reading of the whole article, and the court is not convinced that this claim is ill founded, then whether the defendant is embarrassed or not I would think that the court would be slow to interfere and tamper with the article. As it is for the jury to determine whether the words in fact are libellous, nothing should be struck out from the words complained of which may in any way reasonably affect the imputations relied upon. … In my opinion, except in the case where it is quite clear to the court that a section of the article is on any view irrelevant to any case of libel which the plaintiff may make out, the article containing the libellous imputations can be pleaded in full." 25 The passage which commences "… where the plaintiff claims that the libellous imputations emerge in their full force and extent …" was cited with approval by Hutley JA in Hepburn v TCN Channel Nine Pty Limited [1983] 2 NSWLR 682. 26 Finally, it is not to be overlooked that the decision in Dougherty was also made in relation to a claim governed by the provisions of the Defamation Act 1958. That is of some significance when an additional part of his Honour's reasoning is taken into account. He referred to the difficulties a defendant might encounter in mounting a defence of justification to the pleading in that case, which, under the 1958 legislation, would have required establishing the defence in relation to the whole publication. Since 1974 a defendant who seeks to defend a claim by justifying is obliged only to prove the substantial truth (together with public interest or qualified privilege) of any imputation the plaintiff has succeeded in establishing was conveyed. 27 I am satisfied that Dougherty does not stand for the proposition for which the defendant contends. Certainly, nothing in Dougherty stands in the way of the plaintiff in the present case pleading the magazine in its entirety. 28 Another argument advanced on behalf of the defendant was that the direction traditionally given to juries to the effect that the hypothetical ordinary reasonable reader is assumed to have read the whole of the matter complained of, would, even more than usually, be seen to be unrealistic. I agree that this is so. Despite senior counsel's assertion that the direction is "writ in stone", no authority was cited for the proposition that it is essential. So far as I can see, the direction, although representing something of a fiction (in that it is likely that many recipients of allegedly defamatory publications, whether written or broadcast, either skim read, flit from paragraph to paragraph, partly listen or watch, or otherwise fail to absorb the whole publication) is given out of fairness to the defendant so that a plaintiff cannot seize upon a defamatory meaning potentially conveyed by one part of the publication but negated or nullified or diluted in another. I agree that it is unlikely that any person who came into possession of this magazine would have read all of the printed material or examined all of its pictorial content. But an ordinary reasonable reader would be taken to have looked, or glanced, through it, and readily gained its flavour. 29 Directions are intended to be tailored to suit the needs of individual cases. I do not think an appropriate direction concerning what the ordinary recipient of this publication would have done with it would be beyond the wit or capacity of a judge with the assistance of counsel. Given that the purpose of the usual direction is, as I perceive it, to ensure that jurors focus upon any parts of the matter complained of that put the imputations contended for by the plaintiff in a different light, it will be open to the defendant to identify for the jury any parts of the magazine that it suggests affect the meaning. This very fact demonstrates the hollowness of the defendant's argument. There is no disadvantage to the defendant arising from the manner in which the jury will be directed. 30 Senior counsel also argued that: "As a matter of law, a plaintiff cannot plead articles even within the one newspaper or magazine as part of the matter complained if those further articles do not relate to the plaintiff." 31 In my opinion this proposition is too broadly stated. It is very easy to envisage circumstances in which a combination of articles in the same publication, or in different publications, might make one or the other (or both) defamatory, even where one of them did not refer to the plaintiff at all. For example, a newspaper might, on one page, refer to the plaintiff as holding high office in a particular religious sect. If, in another part of the newspaper that did not refer to the plaintiff, that sect was described as being given to ritual torture, demonism and witchcraft, the plaintiff would be entitled to plead the two articles in combination as conveying a defamatory meaning. It would not, in my view, be open to the plaintiff only to plead that by way of true innuendo, (although that would also be available); the plaintiff could plead by reference to the whole of the newspaper. 32 Senior counsel further contended that the proper (and, by implication, the only proper) way for the plaintiff to plead her case is by pleading the material on page 3 as the matter complained of, with a true innuendo arising by reference to the other parts of the magazine - as, indeed, she has alternatively formulated her case. This argument can only succeed if that manner of pleading is the only means properly available - that is, that the plaintiff could not properly rely upon the whole magazine. 33 Generally speaking, it lies in the plaintiff's hands to select the manner in which the case is framed: Ron Hodgson (Trading) Pty Limited v Belvedere Motors (Hurstville) Pty Limited [1971] 1 NSWLR 472; Dougherty; Hepburn. 34 To limit the plaintiff to the material contained on page 3 would be to distort the case she seeks to make. Her primary claim is that the magazine, in its natural and ordinary meaning, conveyed the imputations alleged. A word (and perhaps a photograph) may take its colour from its context: Cairns v John Fairfax and Sons Limited [1983] 2 NSWLR 708. A photograph of a person may, alone, be entirely innocuous. If juxtaposed with a story about drug dealing it may lose its innocent character. 35 Here, the magazine as a whole provides the context in which the plaintiff claims the defamatory imputations were conveyed. The photographs of the plaintiff (even with the accompanying text) may not convey any imputations defamatory of the plaintiff, or may convey a defamatory imputations different from, perhaps of a lesser character than, those upon which the plaintiff wishes to rely. The photographs and the text, in the context of the whole magazine, take on a different flavour altogether. 36 In another argument, senior counsel referred to the pleadings in Ettingshausen v Australian Consolidated Press Limited (1991) 23 NSWLR 443, where a well known footballer claimed to have been defamed by the publication of a photograph that showed his genitals. Senior counsel argued that the pleading adopted in that case - where the imputation pleaded was: "The plaintiff is a person whose genitals have been exposed to the readers of the defendant's magazine …"

• provided a suitable model for the plaintiff's present claim. Perhaps so. But a plaintiff is not to be limited to a suitable model for his or her claim - particularly not one selected by the defendant - and is entitled to frame his or her case as he or she sees fit, provided that a cause of action is disclosed. 37 There is no obstacle to the plaintiff's pleading and presenting her case by reference to the whole of the magazine. 38 A secondary argument advanced on behalf of the defendant involved a reference to the Supreme Court Rules, and was acknowledged to be "a technical" argument. SCR Part 67 Rule 12 (2) provides as follows: (2) There shall be filed and served with the statement of claim and any amended statement of claim and referred to in it, where applicable: (a) a legible photocopy of the original publication or, in the case of an internet, e-mail or other computer displayed publication, a printed copy; (b) a typescript, with numbered lines, of: (i) if the original publication is in English - the text of the original publication; or (ii) otherwise - a translation of the text of the original publication; and (c) a description of any other written material other than words. 39 The plaintiff has not pleaded the magazine in any of the forms envisaged by the rule. She has, instead, exhibited the whole of the magazine in its published form to the statement of claim. 40 SCR Part 1 Rule 12 empowers the court to dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises. Part 26 Rule 1 empowers the court to give directions that are inconsistent with the Rules. 41 There is not the slightest prejudice arising to the defendant by reason of the manner in which the plaintiff has identified the matter complained of. To require provision of a photocopy of the magazine, when copies of the magazine in its published form are available, would be, unnecessarily and without any reasonable cause whatever, to add to the costs of the proceedings. Further, the magazine is in some parts in fine print which could not be expected easily to photocopy. To require, in accordance with Rule 12(2)(b), a typescript, together with a written description of the material not in words, would be equally time wasting and cost incurring. The purpose of the Rules is not to impose a strait-jacket on parties, nor to provide parties with an opportunity for point scoring. The purpose of the Rules is to provide a recognisable framework, and to ensure a reasonable level of consistency and fairness, in the conduct of proceedings in the court. 42 By reason of the institution of the Defamation List, and the frequency with which it is conducted, parties to defamation proceedings receive a level of service from the court not available to litigants generally. The Defamation List was not instituted to enable parties to take arid points or advance pointless arguments. Litigation in this millennium should be conducted with a degree of co-operation and common sense, reflecting the fair allocation of court and judicial time to parties who have genuine issues to be resolved. This is not such an issue. To take up the time of the court (and of the plaintiff and her legal representatives) on what is essentially a frivolous argument does no credit to those who engage in it, and who may find that their clients are ordered to pay indemnity costs. 43 The point taken in relation to the physical manner in which the magazine has been pleaded is entirely unmeritorious. To the extent that it is necessary to validate the plaintiff's pleading in this way, I dispense with compliance with Part 67 Rule 12(2) and direct that the provision by the plaintiff of a copy of the magazine "The Picture" to the court and to the defendant is sufficient compliance with that Rule.

2 The true innuendo claim 44 The defendant does not argue that the plaintiff's pleading by way of true innuendo is not available, but complains that the claim is inadequately particularised. 45 As indicated above, the plaintiff has particularised the extrinsic facts as being those additional parts of the magazine which demonstrate that the magazine is pornographic, or, perhaps put more accurately, from which the jury might conclude that the magazine is properly characterised as pornographic. 46 In their written outline of submissions counsel for the defendant relied again upon the provisions of the Rules. The specific Rule to which reference was made was Part 67 Rule 12(1)(c) which provides that the particulars required include: (c) where the plaintiff alleges that the matter complained of had a defamatory meaning other than its ordinary meaning - particulars of the facts and matters on which the plaintiff relies to establish that defamatory meaning, including: (i) full and complete particulars of the facts and matters relied upon to establish a true innuendo; and (ii) by reference to name or class, the identity of those to whom those facts and matters were known; 47 In oral submissions senior counsel contended that precise facts had not been particularised, and the names and addresses of persons who knew those facts had not been provided. He went on to argue that it would be necessary for the plaintiff to identify readers who had read all of the parts, passages, and pages particularised as extrinsic facts. 48 This is another example, in my view, of taking reliance on the Rules to extremes. The Rules have a flexibility that enables them to be adapted to suit the circumstances of any particular case. 49 It is quite unreal to expect the plaintiff to provide the names, let alone the addresses, of readers of the magazine, or to identify which part of the magazine they read. The plaintiff would be entitled, in my opinion, to set out to establish that the magazine was pornographic, and was known to be pornographic to certain readers of page 3, by inference. It could hardly be thought that nobody who read page 3 had read or looked at any other parts of the magazine in such a way as to draw a conclusion that it was pornographic. 50 I am satisfied that the true innuendo claim is adequately particularised in the circumstances.

3 Republication 51 The final complaint is that the republication claim is inadequately particularised. The claim has been sufficiently set out above. On this occasion it seems to me that the defendant's complaint has some merit. I will direct the plaintiff to provide particulars of the allegation contained in paragraph 9 of the statement of claim.

Last Modified: 06/06/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.