Park v Choi

District Court of NSW|2019-10-17|Before: Mr J

Solicitors: Plaintiff: Jacobs Legal Defendants: MinterEllison File Number(s): 2019/87870 Publication restriction: None

The application before the court

Pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), the defendants seek a separate trial in relation to the form and capacity of imputations arising from four publications written in the Korean language, the contents of which are set out below.
As to the first matter complained of, the defendants' further application is that it should be summarily dismissed for lack of defamatory meaning. In the alternative, the defendants challenge the capacity of imputations 5(a) to 5(g) (both in the natural and ordinary meaning and by reason of the extrinsic facts pleaded) pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW), as well as imputations pleaded (both in the natural and ordinary meaning and by reason of the extrinsic facts pleaded in support of the innuendo plea) for the remaining three publications.
There are also substantial challenges to the form of certain imputations, which are asserted not to differ in substance, to be rolled-up and/or which are asserted to be imprecise.

The matters complained of

The publications in question are as follows: 1. A letter written in the Korean language dated 1 June 2018 (First Letter); 2. A letter written in the Korean language dated 14 June 2018 (Second Letter); 3. Text messages written in the Korean language dated 12 to 13 July 2018 (Text Messages); and 4. The republication of the Second Letter on or about 27 June 2018.

Procedural issues

By way of background, the imputations pleaded have undergone a series of transformations following correspondence between the parties concerning challenges to form and capacity. On 23 May 2019, the plaintiff was ordered to file any Amended Statement of Claim by 6 June 2019 and for the parties to endeavour to resolve the issues concerning the imputations thereafter. The hearing of the challenge to form and capacity commenced on 20 June 2019 but when it became apparent that the plaintiff had not come to terms with a significant number of the defendants' challenges, the argument was stood over part heard and the plaintiff granted leave to file a Further Amended Statement of Claim incorporating the amendments that counsel for the plaintiff considered he would have to make. Unfortunately, the Further Amended Statement of Claim filed on 19 July 2019 repeated many of those difficulties.
On 2 August 2019, the solicitors for the defendants wrote to the solicitors for the plaintiff raising objections to the repleaded imputations which was responded to on 16 August 2019. As the parties had been unable to resolve their differences, this has required the making of a series of rulings in relation to each of the matters complained of (which are now four in number rather than three).
This has involved both parties in a considerable amount of delay and expense. Although proceedings were commenced on 13 March 2019, they had not been able to proceed further by reason of this outstanding argument. The current pleading, the Further Amended Statement of Claim, is 53 pages long. The correspondence between the parties and the tone of submissions, at least on the part of the plaintiff, take a hostile stance to the bringing of any objections.
The purpose of the Defamation List is to ensure speedy and efficient case management and to prevent interlocutory arguments from becoming unduly technical or delaying the efficient conduct of the case. It should not be a difficult task to plead imputations which differ in substance and which reflect the defamatory stings of the publications. That is particularly the case in publications such as the present, where the language in question is, despite being in translation, simple and direct.

The procedure for ruling on form and capacity of imputations

The procedure for ruling upon the capacity of imputations is explained by Sackville AJA in Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 at [24]-[25] as follows: "24. The decision of the primary Judge is properly characterised as an exercise of discretion on a point of practice or procedure, rather than a decision which affects substantive rights. The Court is reluctant to grant leave to appeal from such a decision. The reason for that reluctance was given almost 70 years ago by Jordan CJ (Nicholas CJ in Eq concurring) in In re the Will of FB Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323: "In [cases of this kind], if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal." 25. Jordan CJ's strictures are given added force by the direction in s 56(2) of the Civil Procedure Act 2005 (NSW) requiring the Court to seek to give effect to the "overriding purpose" stated in s 56(1) when exercising any power conferred by the Act or the rules of court. That overriding purpose is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The significance of the overriding purpose in the conduct of litigation has recently been emphasised by a unanimous High Court: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 at [56]-[57]. The overriding purpose is as important in defamation proceedings as in other forms of civil litigation: Dennis v Australian Broadcasting Corporation at [29]-[31] (Spigelman CJ; Basten and Campbell JJA agreeing)."
In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303, the High Court noted at [39]-[40]: "39. Speaking of what the case management provisions in the CPR might mean for the conduct of litigation, in Jameel (Yousef) v Dow Jones & Co Inc the Court of Appeal explained that: "It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice." 40. Earlier, in Biguzzi v Rank Leisure Plc, Lord Woolf MR had doubted that authorities decided under the old procedure could continue to be binding or even persuasive. There are some examples of the application of a new approach by English courts to case management. In Hertsmere Primary Care Trust v Administrators of Balasubramanium's Estate, the claimants sent a letter of offer which did not technically comply with the CPR. The defendant's lawyers realised the error and sought to take advantage of it at a later date in resisting a Calderbank style order for costs. Lightman J rejected the defendant's submission that there was no duty on the part of its lawyers to cooperate and enable the claimants to rectify the error. His Honour said: "[t]hat may have been the law prior to the CPR, but it is not the law today.""
This means that the judge hearing the argument in relation to capacity should have regard to civil procedure rules and case management in order to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice. I have borne this in mind when endeavouring to deal with this poorly drafted statement of claim.

Challenges to the capacity of the imputations

The relevant principles in relation to capacity for the purpose of a separate trial under UCPR r 28.2 are set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [125]-[136] and need not be restated in detail here. The test generally extracted is that the determination of capacity at the threshold level is "an exercise in generosity, not parsimony", as well as being a "matter of impression... the impression is not of what the words mean but of what a jury could sensibly think they meant" (at [135], citing Berezovsky & Anor v Forbes Inc & Anor [2001] EWCA Civ 1251 at [16]).

Objections to the form of imputations

The relevant principles may be summarised as follows: 1. The plaintiff is obliged to identify for the defendant the act or condition which was understood by the ordinary reasonable reader as having been attributed to the plaintiff. 2. An imputation must be pleaded with sufficient precision to avoid the likelihood of confusion in relation to the meaning (for example, avoiding a "rolled-up" imputation (Taylor v Jecks (1993) 10 WALR 309 at [320] - [321]; Wong v Aripin [2011] WASC 174 at [20]) and "weasel words". 3. The words in the matter complained of may be adopted, but only where the meaning is clear. 4. Ambiguity of terms must be avoided. In the present case, the word "dissent" appears in the imputations, a word pregnant with meaning in the religious sense, in that it can indicate views of an asserted heretical or unorthodox nature as opposed to mere disagreement. 5. While precision in terms of content is desirable, where the publication is of a very vague and general nature, such as the well-known example "X is disgusting" (Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137), where the matter complained of is of similar generality, that will be sufficient. Unfortunately, that is not the case here.

Summary dismissal: UCPR r 28.4

Two tests must be applied to the defendants' application under UCPR rr 28.2 and 28.4. The first is the straightforward test in relation to capacity set out above, as stated in Corby v Allen & Unwin Pty Ltd. The second arises where, if none of the imputations is reasonably capable of being conveyed, that entitles the defendants to an order for summary dismissal.
The high test applied to such an application is set out in Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679, where Herron CJ noted that, even at trial level (which was the case in Bik v Mirror Newspapers Ltd), the test to apply is that set out in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. This is because the judge should not permit "driving the plaintiff from the judgment seat" other than in the clearest of cases.

The contents of the publications

The first matter complained of is a letter to the Church Management Committee. The second and fourth publications, which are identical, as well as the third publication, set out the gravamen of the problems asserted to arise in the church's committee.
The translations of these publications have been heavily amended, which has resulted in considerable confusion. As a result I asked the plaintiff to provide copies of the texts of each of the publications. I note that there are some differences between what has been provided in response to my request, in terms of annexures. This has been further complicated by the plaintiff's initial failure to number the paragraphs in the manner required by UCPR r 14.30, which has now been corrected in the version most recently forwarded to the court and by the omission of some of the annexures. I am entitled to assume that the texts of the four matters complained of which have now been supplied by the plaintiff to be the correct ones, and I propose to do so.

The first matter complained of

The first matter complained of was published on or about 1 June 2018 and its contents are as follows: 1 ATTN: Sydney Full Gospel Church Management Committee 2 FROM: Won Hyo Cho, Seung Joo Hong, Hyun Pill Mun, Jong Bae Park, Baek Seon Lee, Dong Heon Choi 3 Re: Elder Hee Yeul Park's eligibility as a Management Committee Elder (Referred to as 'Simu Jangro' in the original text) of Sydney Full Gospel Church 4 Date: 01/06/2018 5 Request for Rectification of Management Committee Elder Rights 6 Sydney Full Gospel's Management Committee Elder Qualifications: 7 # The Management Committee Elder of Sydney Full Gospel Church (now referred to as the 'church') must be appointed in accordance with the following codes of regulation. 8 a) The applicant must first go through proper voting procedure to be a valid applicant- and he/she will then need to be approved in the joint board. 9 If the applicant is approved, he or she needs to at least receive 2/3 of the votes in the approval - Sydney Full Gospel Church Executive Regulations. 10 b) In order to be transferred to our church as an elder, he/she will need to receive at least 2/3 of votes in the joint board discussion with a transfer certificate attached. 11 c) Elder of General Assembly becomes a cooperative Elder through recommendations of the church and must have obtained 2/3 of the votes in the Joint Board Discussion one year later - Oceania Association Constitution s50(4)(na), Modified 30 October 2014. 12 d) However, an elder of an affiliated Joint Board becomes a Cooperative Elder through recommendations of the Church and can be appointed as a Management Committee Elder after six months through the voting system in the Joint Board Discussion - Modified 22nd November 2006, Oceania Association Constitution s.46 (4). 13 e) However, an elder of an affiliated Joint Board becomes a Cooperative Elder through recommendations of the Church and can be appointed as a management committee elder after six months through the voting system in the Joint Board Discussion - Enforced 29 October 1992. 14 2. The current amended Constitution recognises the rights and qualifications of a Management Committee Elder validly appointed under the Constitution prior to the amendment. But an invalid appointment of a Management Committee Elder made after the amendment of the Constitution is an incorrect application of the Constitution at the time of the appointment. 15 3. Oceania Church Association's Constitution commenced in the year of 1992 and since then in order to become a Management Committee Elder of this Church, he/she must receive at least 2/3 of votes in the joint board discussion. 16 As the above-mentioned elder Hee Yeul Park (from Yeouido Full Gospel Church in Korea) has been appointed to the position against the Constitution, we therefore request for rectification of his rights and qualifications as a management committee elder.

The imputations pleaded to arise from this publication as set out in paragraph 5 of the Further Amended Statement of Claim are as follows: 1. The Plaintiff's appointment as an Elder of the Sydney Full Gospel Church is invalid because it was in breach of the Church's rules (lines 5-16); 2. The Plaintiff knowingly claimed to occupy the position of Elder of the Sydney Full Gospel Church despite his appointment being invalid because it was in breach of the Church's rules (lines 5-16); 3. The Plaintiff should be removed from his claimed position of Elder of the Sydney Full Gospel Church (lines 5-16); 4. The Plaintiff knowingly and intentionally circumvented the legitimate process of appointment as an Elder in the Sydney Full Gospel Church (lines 5-16); 5. The Plaintiff should not have been appointed to the position of Elder of the Sydney Full Gospel Church (lines 5-16); 6. The Plaintiff is not an Elder of the Church (lines 5-16); 7. The Plaintiff never was an Elder of the Church (lines 5-16).
There is an additional claim of defamatory meaning arising from extrinsic facts, as set out in paragraph 5A of the current pleading: "5A Further and in the alternative to paragraph 5 herein, the First Defamatory Imputations arise by way of innuendo by reason of the fact that the Plaintiff has, since February 2008: a. occupied the position of Elder in the Sydney Full Gospel Church; b. further or alternatively, been publicly known and recognised as an Elder in the Church."
Despite the apparent factual precision of the dates in these particulars, the pleader has avoided pleading that the persons who have this knowledge (whose class or identity is not revealed) would also know that there is a requirement for a two-thirds majority of votes for appointment either since 2014 or generally. That is but one of many pleading problems in relation to the plaintiff's claim.

The basis for the defendants' challenge

The first matter complained of sets out, in paragraph 1(a) - 1(g), the qualifications for being appointed to the Management Committee, noting that these had been modified in 2014 to require two-thirds of the votes. While these rules can be circumvented by the procedure set out in paragraph 1(d) and 1(e), an invalid appointment made after the Constitution was amended (in relation to the two-thirds of the vote, after 2014), is nevertheless "an incorrect application of the Constitution". This applies to the Oceania Church for the reasons set out in paragraph 3.
The sole mention of the plaintiff's name (apart from its inclusion in the subject matter) then occurs in the final paragraph, where the matter complained of says that the plaintiff "has been appointed to the position against the Constitution", and the committee seeks "rectification of his rights and qualifications as a management committee elder."
To the ordinary reasonable reader, the basis for this appointment being against the Constitution appears at first blush to be unexplained. While, on further careful reading, it appears to have something to do with the requirement for a two-thirds majority of the votes, the overall impression, adopting the Corby test, is one of some technicality of appointment arising as a result of constitutional amendment for which there are some apparent alternative procedures which are inapplicable, in circumstances where "rectification" of the appointment is necessary.
Mr Senior submits that no act or condition capable of a defamatory sting is able to be conveyed merely by reference to the appointment being "against the Constitution", particularly as the letter is set out as a request for rectification, which is put forward on the basis that the problem should be rectified despite this apparent inconsistency. The whole tone of the letter is one of changes to the appointment system resulting in changes which now need to be rectified, not of wrongdoing of any kind.
Mr Manner's submissions in reply assert that the bar for striking out an entire publication is "exceptionally high, must be approached with caution, and in the case of equivocation, such an application ought to be dismissed" (written submissions, paragraph 19). The plaintiff must be taken to have known that he was invalidly appointed because, as a member of the management committee and as a senior minister, he must be taken to know the prerequisites for appointment and to have deliberately flouted these.
Mr Manner relies upon the following extracts from David & Anor v Abdishou & Ors [2007] NSWSC 1195 at [8]: "The exercise of discretion in deciding whether or not an imputation should be struck out is to be undertaken with great caution. In Favell (para 6) it was said that if reasonable minds may possibly differ about whether or not the matter complained of is capable of carrying a defamation meaning that would be "… a strong, perhaps an insuperable, reason for not exercising the discretion to strike out.""
Mr Manner draws my attention to the words "possibly" and "insuperable", submitting that even the slightest doubt as to defamatory meaning should be resolved in favour of the plaintiff, resulting in the court striking out imputations only in exceptional circumstances. This is particularly the case in relation to a person such as the plaintiff, who holds a position in a church. He submits that the High Court "has unequivocally held" that the plaintiff is defamed when he suffers the loss of any of "all aspects of standing in the community" (Corby v Allen & Unwin Pty Ltd at [36]) where "his public, social, professional, or business qualifications, qualities, competence, dealings, conduct, or status" (Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606 at [2]) are challenged. He submits that the imputations pleaded in the publication deprived the plaintiff of public, social and professional position of church Elder and that the very mention of a person such as a church Elder being appointed in circumstances of anything other than propriety is sufficient to defame the plaintiff. This is asserted to be the case because the context of the plaintiff's position is a determinative feature, for the reasons set out by Rolph, D., Defamation Law, Sydney: Thomson Reuters (2016) at 104, citing Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186. The High Court stated in Radio 2UE Sydney Pty Ltd v Chesterton that "disparagement of reputation" is the essence of an action for defamation and the mere statement of invalidity in the appointment of the plaintiff is sufficient to give raise to each of the imputations pleaded. This is all the more the case in relation to the plea based on extrinsic facts, where those persons who knew that the plaintiff had been an Elder for 11 years would know that this was a claim that he had been invalidly appointed for the whole of the 11 years (whether they knew of or understood the 2014 amendment or not). As such, both in the natural and ordinary meaning and in the meaning conveyed by reason of knowledge of the extrinsic fact, any challenge whatsoever to the validity of the plaintiff's appointment "conveys a loss of standing in some respect" (Radio 2UE Sydney Pty Ltd v Chesterton at [37]) and was thus defamatory of the plaintiff.
One of the main pillars of Mr Manner's argument is the statement by the Full Court of the Federal Court in Random House Australia Pty Ltd v Abbott & Anor (1999) 167 ALR 224 at [22] that "to attribute to a person a want of capacity as the holder of an office will be defamatory".
However, that passage needs to be read in its full context: "[22] The test for what may be defamatory at common law is well established. A publication, without justification or lawful excuse, exposing a person to hatred, contempt or ridicule, calculated to injure that person's reputation, is a libel. But this is not to be taken as an exhaustive statement. A person may be defamed by an imputation of a disability in the performance of the functions of his or her office, although the imputation does not expose him or her to hatred, contempt or ridicule. A false statement about a person to his or her discredit is defamatory. Thus to attribute to a person a want of capacity as the holder of an office will be defamatory. The mere imputation of a lack of ability to discharge the duties of that office is sufficient. It is not necessary that there should be an imputation of immoral or disgraceful conduct (per Brennan J in John Fairfax v Punch (1980) 31 ALR 624 at 632 - 633 citing Lord Herschell in Alexander v Jenkins [1892] 1 QB 797 at 800). Thus, the substantive legal issue here may be expressed as whether the material complained of was defamatory of the plaintiffs in that it was to his or her "discredit ... [tended] to lower him [or her] in the estimation of others ... to expose him [or her] to hatred, contempt or ridicule, or to injure his [or her] reputation in his [or her] trade or profession" (see Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 per Gaudron and Gummow JJ at 545 quoting Gatley on Libel and Slander, 8th ed (1981), para31). … [24] A defamatory imputation may be made by reliance upon the natural and ordinary meaning of the words published, or by innuendo (per Brennan J (Gibbs CJ, Stephen, Murphy and Wilson JJ agreeing) in Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 (at 505)). Where no (true) innuendo is pleaded, and the published words clearly relate to the plaintiff, the issue of libel or no libel, can be determined by asking whether hypothetical referees (described in the authorities as "reasonable" persons or "right-thinking members of society generally" or "ordinary (persons) not avid for scandal") would understand the words in a defamatory sense. Two elements are involved here: (1) the meaning of the words used (the imputation); and (2) the defamatory character of the imputation. In their understanding, the hypothetical referees are taken (a) to have a uniform view of the meaning of the language used; and (b) to share standards, moral or social, by which they evaluate the imputation they understand to have been made, those being standards common to society generally (per Brennan J at 505 - 506). These moral or social standards are not amenable to evidentiary proof. Rather, it is pre-eminently a matter for the trier of fact to give effect to a standard which he or she considers to accord with the attitude of society generally (per Brennan J at 506). The basic question then is whether the matter complained of would tend to lower the subject in the estimate of the ordinary, reasonable, member of society (per Kirby J in Chakravarti at 573)."
Before looking at what the Full Court had to say about what amounted to a lack of capacity, I note the following observations about the difference between imputations arising in their natural and ordinary meaning and meaning by way of true innuendo: "[25] A related, and presently relevant, question is the effect of a plaintiff's pleading, or failing to plead, an imputation by way of a false innuendo. In strictness, there is no rule which expressly requires a plaintiff to give particulars when the plaintiff relies simply on the "ordinary meaning" of the publication on which the claim is based. But, statute apart, the reason why a court may, in the management of a defamation case, require a plaintiff to provide particulars, even where the plaintiff intends to rely on ordinary meaning, is the need to define issues when more than one meaning may be inferred from the words. Sometimes, it is not necessary to go beyond the words themselves to understand their "natural and ordinary" meaning, as where the plaintiff is called a thief or a murderer. Yet more often the sting is not so much in the words themselves, as in what the ordinary person will infer from them, and that is also regarded as part of their ordinary and natural meaning (per Brennan CJ and McHugh J in Chakravarti (at 530 - 532) citing Lord Reid in Lewis v Daily Telegraph Ltd (1964) AC 234 (at 258)). Thus, it is said that the courts require plaintiffs to plead false innuendos, if needed to define the issues (per Brennan CJ and McHugh J at 532). [26] A plaintiff who pleads a false innuendo thereby confines the meanings relied on, and cannot seek a verdict on a different meaning which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis (per Brennan CJ and McHugh J at 532). However, form should not be sacrificed to substance, and minute differences from the meaning pleaded should not be elevated to the status of a substantial defence. A different nuance of meaning from the meaning pleaded may be permitted, provided it is not unfair to the defendant to allow the plaintiff so to depart from the meaning pleaded. The critical consideration is whether it is prejudicial, disadvantageous or unfair to the defendant, to allow a plaintiff to seek a verdict on the basis that the matter complained of bears a meaning different from that previously relied on (per Brennan CJ and McHugh J at 532; per Gaudron and Gummow JJ at 546; per Kirby J at 580 - 581)."
The precise nature of the "want of capacity" attributed to the plaintiffs in Random House Australia Pty Ltd v Abbott & Anor becomes very apparent from the analysis by the Full Court of the Federal Court in [29]: "[29] This emerges, clearly I think, from the following analysis of the material:- • The matter complained of opens, and ends, with references, made in mocking overtones, to some well-known Australian and English political and public figures and their ideas. Particular emphasis is given to whether a person was seen, or claimed, to be a monarchist or an Anglophile or Right Wing. • Focus is first concentrated upon Mr Abbott, who is introduced as "the Liberal thinker", but with the addition of the derisory "(hah)!". • The contact between Mr Ellis and Mr Abbott is then described, including Mr Ellis' apparently easy deception of Mr Abbott into believing that Mr Ellis was a "fellow monarchist". • Mr Ellis next states his determination to destroy Mr Abbott remembering "with pleasure" Rodney Cavalier's "gutsy account of history". (It will be recalled that Mr Cavalier is later described by Mr Ellis as a monarchist, and an Anglophile.) • The sting in the passage complained of follows. Reference is made to Mr Abbott and Mr Costello together, and one or other of their wives in these derisory, contemptuous and mocking terms: "Abbott and Costello ... they're both in the Right Wing of the Labour Party till the one woman fucked both of them and married one of them and inducted them into the Young Liberals." • Mr Ellis' stated response to this piece of "history" was again derisory - " 'Abbott and Costello?' I said, laughing." • Next, as has been noted, the references to monarchists, Anglophiles etc follow."
The matter complained of set out in very great detail the asserted lack of capacity that Mr Abbott and Mr Costello demonstrated. That is not the case here.
If, instead of these precise allegations, the publication had stated that Mr Abbott and Mr Costello were not validly elected, in that there was a claim that the number of votes fell short of victory, would that (without identifying any wrongdoing by them in the vote counting, as is the case here) be defamatory of them, particularly if the proposal was that the situation be rectified? The answer is no.
These are the reasons why, when examining the nature of the challenge, there is difficulty in relation to identifying defamatory meaning in relation to the first matter complained of.
Having noted these submissions as to the basis upon which capacity is generally asserted to arise, I consider each of the individual imputations pleaded.

The first matter complained of

The plaintiff pleads seven imputations which can be conveniently dealt with in groups.

Imputations 5(a), 5 (b) and 5(d)

The first issue is the "fall-back" nature of imputations 5(a) and 5(b) (in that imputation 5(b) adds the word "knowingly"), in that the plaintiff either knew or did not know, and one imputation should be pleaded as a fall-back to the other.
As to capacity, for imputation 5(a), the mere fact that a person was invalidly appointed to a position, in the context of the matter complained of where what is sought is rectification, is not sufficient to amount to an imputation defamatory of the plaintiff.
As to imputation 5(b), there is no suggestion that the plaintiff knew of this failure to comply with the constitutional requirements, which were matters of mathematics rather than knowledge of rules which had been breached. The overall impression is one of general unawareness.
Imputation 5(d) fails, for the same reasons, in relation to "knowingly", and suffers from the additional vice of the addition of the word "intentionally", which means the form of the imputation is rolled-up.
Imputations 5(a), 5(b) and 5 (d) are each not reasonably capable of being conveyed.

Imputations 5(c) and 5(e) - 5(g)

Counsel for the plaintiff was unable to point to any part of the text where there is a call for the removal of the plaintiff from his position or statement that he should not have been appointed to the position.
What is more, not only does the matter complained of fail to assert that the plaintiff was not, or had never been, a member of the management committee, the final sentence says to the contrary.
Imputations 5(c) and 5(e) to 5(g) are each not reasonably capable of being conveyed.

Extrinsic facts and leave to replead

The extrinsic facts pleaded add nothing to the claim as pleaded. They are not, in fact, extrinsic facts at all, but material which would clearly have been known to the persons reading the matter complained of. I note that the persons knowing the extrinsic facts are not identified.
Mr Senior points out that the plaintiff has had a number of opportunities to draft and redraft imputations in relation to this publication. This application was adjourned part-heard to enable the plaintiff to replead the imputations.
Mr Manner asks for a further opportunity to replead imputations struck out, including any struck out on the basis of capacity and a new case of extrinsic facts if his current pleading is found to be deficient.
While leave may be granted where there are errors of form, a ruling on capacity is final. Nevertheless, that does not prevent the plaintiff from attempting to recast the pleadings in order to identify the true sting of the libel.
As I note in my conclusions below, particularly in relation to the extrinsic facts plea, it is in part to accommodate Mr Manner's request for another attempt to plead that I have been unable to make final orders in terms of the imputations argument and have had to make general repleading orders, which is a remedy of last resort in imputation arguments, and not a procedure I have been obliged to use before.
As a result, I have refused the application for summary dismissal, and set out my reasons for doing so.

Reasons for rejection of the application for summary dismissal

When determining whether a publication has a defamatory meaning, it is helpful to note the observations of Mason P in Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 at [28]: "[28] The principle which I would uphold in this appeal must not become the passport to sloppy or ambiguous pleading of imputations. It is, however, incumbent on the parties to thrash out the true issues at the pre-trial stages. If a pleaded imputation lacks a sting or if the sting has multiple barbs, then the plaintiff should be challenged to clarify the pleaded imputation."
In NHB Enterprises Pty Ltd (t/as Bova Compounding) v Sydney Magazine Publishers Pty Ltd [2013] NSWSC 1163 at [31], McCallum J cited this passage with approval and added "[r]esort to context cannot supplant that essential pleading requirement". There must be a defamatory strong which is conveyed "of and concerning the plaintiff"; mere context is not enough.
I am satisfied that at its highest, the first matter complained of records a technical invalidity in relation to the plaintiff's appointment and request that the situation be rectified. There is no suggestion that anyone knew of the invalidity beforehand, let alone the plaintiff. The extrinsic facts pleaded (which are not extrinsic facts at all, but a restatement of two facts in the matter complained of which would be known to any reader) take the case no further.
I note, however, that the text of the remaining matters complained of are written in a very different style and are frank in their criticisms of the plaintiff, which should have made the task of the plaintiff a much easier proposition. Regrettably that has not been the case here and, where the majority of the imputations pleaded are either not conveyed or deficient in form, it may sometimes be preferable to strike out the offending imputations and defer a ruling until the imputations have been corrected. This is one of those occasions and, in those circumstances, I propose to extend that liberty to the pleader in relation to the first matter complained of as well.
It may be that the repleading could enable the plaintiff to determine whether, for example, there is a true innuendo of the Hayward v Thompson [1982] QB 47 kind, in terms of the first matter complained of being read in the light of subsequent documentation, rather like reading a notice of motion in light of the affidavits in support: see, for example Fairfax Media Publications Pty Ltd v Pedavoli [2015] NSWCA 237 at [56] - [81]. I am fortified in this regard by the fact that the first matter complained of is also attached to two of the three other matters complained of, although whether it is capable of a separate defamatory meaning for this or some other reason would need to be set out with precision.
The remaining pleadings suffer from a series of problems in relation to form as well as to capacity. I will deal with each of these in turn.

The second matter complained of

The second matter complained of is a letter published on or about 14 June 2018. The text of the second matter complained of is as follows: 1 Title: Request for Suspension of elder Hee Yeul Park from Yoido Full Gospel 2 Church in Korea as a Management Committee member 3 1. I wish for prosperity of the Yoido Full Gospel Church Association of South Korea. 4 2. Sydney Full Gospel Church plans to suspend management committee elder, Hee Yeul Park, who has been considered to be transferred from Yoido Full Gospel Church in South Korea to Sydney Full Gospel Church, for which I would like to request you to provide your opinion to me with your interpretation of the following - Below - 5 a) The ministry in charge possesses executive power of the Church as specified in Oceania Full Gospel Constitution Part 3 section 6(38)a. 6 Hee Yeul Park has been denying such power and splitting the church through incitement across the congregation for countable years - relevant evidences are attached separately. 7 b) According to Part 3 s8(47)(a) of the Constitution, to enter in the board of executive Elders, he/she must provide a transfer certificate and receive 2/3 of votes in the approval in the Joint Board. 8 However, Hee Yeul Park neither provided the transfer certificate not received such an approval in the joint board. 9 c) It is specified in Oceanic Constitution of Full Gospel Church Association that the candidate for an executive Elder position must receive 2/3 of votes and complete relevant procedures following the regulation. 10 d) I am of the view that Hee Yeul Park's qualifications are inconsistent with the aforementioned a, band c and thus plan to suspend elder Park's positions. I wish to hear your interpretation and opinion on this matter. 11 e) Main reasoning for us to proceed his suspension: Management Committee elder Park has submitted a letter of resignation after he disobeyed the division of works since July 2017. Further, He has been constantly refusing to do volunteering, administration and prayer work, claiming that wealth management, administration and financials of the church have been handled illegally, thus threatening the church and the ministry in charge for legal actions. 12 He was in the centre of incitement within the church community and this has caused a great split between members. Evidences have been attached separately. 13 Therefore, I humbly request your opinion as to whether Hee Yeul Park has received any relevant certificate from Yoido Full Gospel Church in Korea and if not so, whether he has participated in Sydney Full Gospel Church as a management committee elder without such a certificate, which is legitimate or not. 14 15 Annexure 2: Evidence of elder Park's spreading fictitious rumours - Kaoko Talk mobile text message claiming that hundreds of thousands of dollars has been misused by the church community [2017]. 16 Subject: elder Park's message procured on 8 August. 17 Subject: transfer 18 Hallelujah Deacon Cho. 19 I heard you are having busy days preparing for your son's marriage 20 I find the necessity to tell you one story deacon. 21 I think you know already from the rumours that the ministry in charge and executive elders have been in conflicts regarding transparency of administration and financials of our church community. 22 I believe three fundamental elements of a church community is gospel, sacrament and administration 23 Gospel and sacrament should be the ministry's responsibility whereas administration should be handled by executive elders. 24 The problem exists in that our ministry in charge considers all of the three elements to be of under his control and executes by himself, which has caused a great conflict between executive elders and himself. 25 The use of financials should also be processed after approval from joint board of directors and this has been our regulation in the Constitution and other denominations would be same. 26 I have created relevant regulations regarding financials of our church and made the approval to be mandatory and have been using it. 27 It is specified in the regulations that expenditures over $10,000 are supposed to go through the approval by joint board of directors. 28 However, last year, the missionary, financial and management departments have misused over hundred thousands of the fund without approvals and we (some elders who agree with me) are of the opinion that if it turns out to be illegal through auditing, they should be responsible for this. 29 But the ministry in charge and few of the executive elders were reluctant in conducting audit and they have not taken any actions for the misuse of money for a considerable period of time. 30 Our church community has started adopting digitalization means to strengthen transparency regarding use of the funds but it has temporarily been stopped because they would not allow me to proceed with financial works. 31 As a result, three of the executive elders were demoted to other roles. 32 Deacon, I have worked as Management Committee elder for 17 years. 33 Please think about why I am doing this right now. 34 I will tell you in more detail regarding the controversy. 35 Elder Hee Yeul Park. 36 The above letter is considered to be an evidence of destroying the church following s 14( 4) of board regulations. 37 Annexure 3 38

The imputations pleaded to arise from the second matter complained of are as set out at paragraph 8 of the Further Amended Statement of Claim are as follows: 1. The Plaintiff's appointment as an Elder of the Sydney Full Gospel Church was invalid as it was in breach of the Church's rules (lines 5-16 First Letter and 5-10 Second Letter); 2. The Plaintiff knowingly claimed to occupy the position of Elder of the Sydney Full Gospel Church despite his appointment being invalid because it was in breach of the Church's rules (lines 5-16 First Letter and 5-10 Second Letter); 3. The Plaintiff should be removed from his claimed position of Elder of the Sydney Full Gospel Church (lines 5-16 First Letter and 5-10 Second Letter); 4. The Plaintiff has acted to undermine the leadership of the Sydney Full Gospel Church (lines 5-13 First Letter and 15 and 36 Second Letter); 5. The Plaintiff has acted to incite dissent and division amongst church members (lines 5-13 First Letter and 15 and 36 Second Letter); 6. The Plaintiff knowingly and intentionally circumvented the legitimate procedure to appointment as an Elder in the Sydney Full Gospel Church (lines 5-16 First Letter and 5-10 Second Letter); 7. The Plaintiff has knowingly and intentionally acted to disobey the rules of the Sydney Full Gospel Church (lines 5-16 First Letter and 5-13 Second Letter); 8. The Plaintiff is of a low moral character (lines 5-13 First Letter and 15 and 36 Second Letter); 9. The Plaintiff is a dishonest person (lines 5-13 First Letter and 15 and 36 Second Letter); 10. The Plaintiff refused to undertake works for the Sydney Full Gospel Church which he was obliged to perform as an Elder of the church (line 11 Second Letter); 11. The Plaintiff should not have been appointed to the position of Elder of the Sydney Full Gospel Church lines 5-16 First Letter and 5-10 Second Letter); 12. The Plaintiff made baseless allegations regarding the misuse of funds by the Sydney Gospel Church (lines 11 and 15 Second Letter).
The defendants challenge the: 1. The capacity of imputations 8(a), 8(b), 8(c), 8(d), 8(e), 8(f), 8(g), 8(h), 8(i) and 8(k) pursuant to r 28.2 of the UCPR. 2. The form of imputations 8(h) and 8(i) pursuant to r 14.28 of the UCPR. 3. The true innuendo plea.

Imputations 8(a) and 8(b)

Paragraphs 9 and 10 of the second matter complained of make it clear that the plaintiff's qualifications are inconsistent with his appointment, one of these being the failure to receive two-thirds of the votes and the other being the failure to complete relevant procedures. This will be sufficient to support a properly drafted imputation of knowingly occupying a position despite it being invalid because of his breach of church rules, but if the absence of knowledge is to be pleaded, the imputations will need to be redrafted in order to convey an act or condition, as opposed to the current impermissible form of imputation 8(a) and will need to be pleaded as a fall-back to imputation 8(b).
For these reasons, I grant leave to the plaintiff to replead imputations 8(a) and 8(b) and, in the circumstances, defer ruling until those imputations have been repleaded.

Imputation 8(c)

Imputation 8(c) should set out the reason for the plaintiff being removed from his claimed position so as to encapsulate the defamatory sting with greater precision.
Leave will be granted to the plaintiff to replead imputation 8(c) and a ruling on capacity deferred.

Imputations 8(e), 8(f) and 8(g)

The problems created by rolled-up imputations containing phrases such as "dishonest and not to be trusted" (Wong v Aripin at [20]) are well known. If dishonesty and not being able to be trusted are two different issues, then the imputation is rolled-up.
Mr Manning acknowledged that "dissent and division" and "knowingly and intentionally" were intended to convey meanings different from each other, While imputations of this kind may, once separated out, be reasonably capable of being conveyed, all these imputations must be repleaded so that the "rolled-up" nature of the imputations introduced by the use of the word "and" is removed.
In particular, creating "division" in the church is a very different concept to causing dissent amongst followers of a religion. "Dissent", in a religious context, means a breaking away from the orthodox religious view rather than arguments or factions in the church. If religious dissent, as opposed to argument, is to be pleaded, that must be set out clearly, to avoid problems of the kind which occurred in Singleton v Ffrench (1986) 5 NSWLR 425 due to the ambiguity of "breach of trust". This decision is a good example of the undesirability of such issues occurring at trial; see also Woelfl v Australian Broadcasting Corporation [2014] NSWSC 1943.
I will defer ruling on capacity until the revised imputations are pleaded.

Imputations 8(h) and 8(i)

These are challenged on the basis of form on the basis that each fails to specify with precision how the plaintiff is of low moral character and/or dishonest. An alternate submission is made that they are not different in substance.
It would certainly help the plaintiff to identify the manner in which the plaintiff is asserted to be of low moral character, such as (for example) by refusing to undertake work he was requested to provide (being the imputation of condition which would be applicable to the imputation of conduct in imputation 8(j)). The imputation in its current form is, however, reasonably capable of being conveyed.
As to the imputation of the plaintiff being a dishonest person, such an imputation is clearly capable of being conveyed by paragraphs 26-30 of the second matter complained of.
Mr Senior did not explain how these imputations fail to differ in substance. I am satisfied that each conveys a different sting.
However, rather than making a final ruling on whether these imputations are capable of being conveyed, I propose to defer all rulings on capacity until all the imputations are provided.

Imputation 8(k)

I am troubled as to how imputation 8(k) differs in substance from imputation 8(a). As I have struck out imputation 8(a) with leave to replead, the preferable course would be for this imputation to be struck out with leave to replead, so that the plaintiff can consider whether this imputation does in fact require to be pleaded at all.

The true innuendo plea in paragraph 8A

This pleading, which is in the same form as paragraph 5A, is similarly deficient and is struck out.

Rulings as to the second matter complained of

My rulings on each of imputations 8(a), 8(b), 8(c), 8(e), 8(f), 8(g), 8(h) and 8(k) are that each is struck out with leave to replead and that rulings on imputations 8(d) and 8(i) are deferred. Rather than make these rulings specifically on an imputation by imputation basis I have granted a general leave to replead. The true innuendo plea is also struck out but if the pleader can identify a proper basis for true innuendo, a second attempt at pleading it should be permitted.

The third matter complained of

The third matter complained of is a SMS message sent on or about 12 to 13 July 2018. The text of this SMS is as follows: 1 [sic] 2 1. The 6 Elders did not refer to the Oceania General Assembly's Constitution, Part 3 Section 68, Subsection 1. 3 We simply stated that a Leading Pastor is a pastor that receives its Ruling Elder's authority according to Part 3 Section 68, Subsection 1, but we did not refer to it. 4 2. The 6 Elders did not refer to the Full Gospel Church Oceania's Article Section 69 Subsection 2. 5 3. The 6 Elders view the Leading Pastor's Ruling Elder's authority as an absolute and exclusive authority and therefore he cannot 'abuse' that power. 6 It was a decisive action when moving six other directors, it was not just the three people that was moved to another division. But whether it was a whole or partial change, we believe it is a form of his exercise of the Lead Pastor's absolute power in the appointment affairs. 7 4. The 6 Elders strongly believe Hee Yeul PARK has been inciting the Saints and thus splitting the church. Our Saints are the witnesses. What other evidence do you request ... ! ! 8 If he want to discuss legal responsibility and evidence, we can see him at Court. 9 We already have Saints who promised to stand as witnesses. 10 5. The Oceania General Assembly's Constitution 3, Part 8 Section 47, Subsection 1 states the applicant must receive 2/3 of the vote in the joint Board to be an Elder. (See copy below) 11 6. In 2.B, he should talk about the rights of the Elder and not the rights of a believer 12 7. We are not talking about deacons or deaconesses, we are talking about a valid Elder transferral in our specific Church. 13 8. If he has not passed the Common Assembly, you have not received 2/3 of the vote, and the appointment of the Elder was not performed by the Church Conference. According to the Article of Association, you become an Elder through 2/3 majority vote. 14 9. He was posted as the Elder on the weekly List of Elders because we did not know you were struck off from Yeouido Full Gospel Church. 15 Hee Yeul Park tricked us into believing he was an Elder. 16 It is true he was regarded as an Elder without going through the valid processes, but if we accept Chi Ho JUNG and the 9 local heads of the Church's aim to fix the wrong doing and abide by the Church laws, for Hee Yeul Park must bring the transfer certificate documents and gain 2/3 of the votes to become an Elder. 17 If he wants to do it by the law, let's meet at the Courts. 18 10.2C(a): Hee Yeul PARK was struck off and lost his Ruling Elder authorities, so there is no need to mention any reviewal, interpretation or application to gain the power. 19 11.2D(a): He noted that he cannot accept the 6 Elders' interpretation of the law but because Hee Yeul PARK was struck off, he cannot even be considered in that specific law. 20 That is, he does not even have the rights to appeal any decisions. 21 12.2E: He also do not have any rights to even question about his doings of: 22 Inciting the Saints 23 Misusing Ruling powers as the Elder 24 Threatening the Lead Pastor 25 Appealing the appointment of Vice-chief 26 Making lawful accusations and disturbed the Church for many years 27 * INCITEMENT OF THE SAINTS 28 1. Refer to the messages he you sent to Dong Hwan CHO. Financial inspection of of the Church was organised, but those who wanted the financial inspection are now silent about this issue. 29 2. The issue with financial inspection caused confusion and disorder within the Church that brought chaos and division among the overall and the regional Saints 30 3. The Lead Pastor was constantly mocked and criticised (witnesses Saints) and Elders were slandered, dividing the Saints and the Elders 31 * DENIAL OF RULING ELDER'S POWERS 32 1. In the message to deacon Dong Hwan CHO, Hee Yeul PARK conclusively stated that the Lead Pastor does not have any Ruling Elder's power 33 2. Constantly exposed his dissatisfaction about the Lead Pastor 34 * THREATENING OF LEAD PASTOR 35 1. He threatened the Lead Pastor by exposing how visas were granted for some people of the Church through various Area-Leaders and Elders 36 2. Hee Yeul PARK and the 9 Area-Leaders worked together under the aim to "Become a better Church". 37 That was officially announced as a sign to show that Hee Yeul PARK, the 9 Area-Leaders and other Elders were working together at the Prosperity Public Meeting hosted by the General Affairs Bureau in May 2018 38 *APPEAL OF VICE-CHIEF'S APPOINTMENT 39 Appealed against the first appointment of Vice-chief in a year and six months. 40 Appointment of Vice-chief is a power vested in the Pastor. 41 For about a year, he publicly disobeyed the Vice-Chief as well as the Major Service Sermons 42 *He once threatened to sue the Church for the financial affairs, assets and administration but we would like to remind him who was the Director of General Affairs and Director of Finances at the times ... !! 43 But failed to bring any legal action against the Church nor provide evidences…!! 44 *Once he can provide all the legal grounds and evidence for the matters above, we request him to give us the time and place to meet, and we also suggest whether he would like to see the witnesses first or the Courts first. 45 *Hee Yeul PARK who failed to be validly recognised as a Management Committee Elder of the Sydney Full Gospel Church, the Elder who were struck from the Yeouido Full Gospel Church . .. 46 How could such a disgracefully struck off Elder mock and persecute our Lead Pastor and other Elders who have been validly selected as the Elders? 47 He must be driving our holy Sydney Full Gospel Church into chaos and division. 48 If he were really our Elder ... how could he incessantly criticise and attack our Church, Yeouido Full Gospel Church and our Pastor Young Hun LEE? 49 How could he send purgatory messages to our Lead Pastor and Elders ... !! 50 If he were our Church's Elder .. . Shouldn't he be protecting us, crying with us and praying for our future and sincerely oversee ourselves ... ? 51 Nothing can justify his action of attacking our sick Lead Pastor, Elders and our Saints for the sake of protecting your own Eldership. 52 We hope he will make the right choice.

The imputations pleaded to arise from the third matter complained of as set out at paragraph 11 of the Further Amended Statement of Claim are as follows: 1. The Plaintiff's appointment as an Elder of the Sydney Full Gospel Church was invalid as it was in breach of the Church's rules (lines 13-21, 46 and 48- 52 of the Text Messages); 2. The Plaintiff knowingly claimed to occupy the position of Elder of the Sydney Full Gospel Church despite his appointment being invalid because it was in breach of the Church's rules (lines 13-21, 46 and 49-52 of the Text Messages); 3. The Plaintiff should be removed from his claimed position of Elder of the Sydney Full Gospel Church (lines 13-21, 46 and 49-52 of the Text Messages); 4. The Plaintiff has acted to undermine the leadership of the Sydney Full Gospel Church (lines 7-9 and 14-51 of the Text Messages); 5. The Plaintiff has acted to incite dissent and division amongst church members (lines 7-9 and 14-51 of the Text Messages); 6. The Plaintiff knowingly and intentionally circumvented the legitimate procedure to appointment as an Elder in the Sydney Full Gospel Church (lines 13-21, 46 and 49052 of the Text Messages); 7. The Plaintiff has knowingly and intentionally acted to disobey the rules of the Sydney Full Gospel Church (lines 7-51 of the Text Messages); 8. The Plaintiff is of a low moral character (lines 7-51 of the Text Messages); 9. The Plaintiff is a dishonest person (lines 7-51 of the Text Messages); 10. The Plaintiff knowingly and intentionally deceived the church Elders by tricking them into believing that he was an Elder of the Sydney Full Gospel Church (line 15 of the Text Messages); 11. The Plaintiff should not have been appointed to the position of Elder of the Sydney Full Gospel Church (lines 13-21, 46 and 49-52 of the Text Messages); 12. The Plaintiff misused his powers as an Elder of the Sydney Full Gospel Church (line 23 of the Text Messages); 13. The Plaintiff threatened the Leader Pastor of the Sydney Full Gospel Church (line 24 and 34-35 of the Text Messages); 14. The Plaintiff mocked and criticised the Leading Pastor of the Sydney Full Gospel Church (Line 30, 32-33, 46 and 48 of the Text Messages); 15. The Plaintiff slandered the Elders of the Sydney Full Gospel Church (line 30 of the Text Messages); 16. The Plaintiff made baseless allegations in relation to the Sydney Gospel Church's financial Management (lines 26-30 and 42-44 of the Text Messages); 17. The Plaintiff is disgraceful (line 46 of the Text Messages); 18. The Plaintiff has attacked and criticised the Sydney Gospel Church members and Elders for the sake of protecting his own Eldership (lines 46-51 of the Text Messages).
As is the case with the other publications, a true innuendo plea is included in paragraph 11A.
The defendants challenge: 1. The capacity of imputations 11(a), 11(b), 11(c), 11(d), 11(f), 11(g), 11(h), 11(i), 11(k) and 11(l) pursuant to r 28.2 of the UCPR. 2. The form of imputations 11(h) and 11(i) pursuant to r 14.28 of the UCPR. 3. The form of the true innuendo plea in paragraph 11A.

Imputations 11(a), 11(b), 11(c) and 11(f)

On the basis as is set out above in relation to the previous publication which contains identical imputations, conformably with my ruling in relation to the form, I propose to make the same ruling.
Conformably with my decision not to make a ruling on capacity until the imputations are redrafted, I propose to defer the ruling on the capacity of imputations 11(a), 11(b), 11(c) and 11(f).

Imputations 11(e) and 11(g)

Conformably with my previous ruling, imputations which are rolled-up and contain words such as "knowingly and intentionally" and "dissent and division" should be struck out with leave to replead.
Conformably with my decision not to make a ruling on capacity until the imputations are redrafted, I propose to defer the ruling on the capacity of imputations 11(e) and 11(g).

Imputation 11(k)

Regrettably, it is not possible to rule upon this imputation until such time as the redrafted imputations 11(a) and 11(b) are provided.

Remaining imputations challenged

I note the challenges to imputations 11(g), 11(h), 11(i) and 11(l). I propose to defer ruling upon the capacity of these imputations until such time as the imputations the subject of successful challenge have been redrafted.

The true innuendo plea

The true innuendo plea in paragraph 11A is in the same terms as the other pleas and for the same reasons is struck out.

Fourth matter complained of

The fourth matter complained of is identical to the second matter complained of. However, the plaintiff did not set out the imputations pleaded in the Further Amended Statement of Claim other than stating at paragraph 11D: "The words of the Fourth Matter Complained Of in their ordinary and natural meaning meant, and were understood to mean (or meanings not different in substance) the Second Defamatory Imputations."
Had the plaintiff set out each of the imputations pleaded under the fourth matter complained of, I would make rulings in accordance with my findings in relation to the second matter complained of above.
The plaintiff must set out each of the imputations pleaded to arise from the fourth matter complained of in the next version of the statement of claim, in accordance with UCPR r 14.30.
It is to be hoped that this pleading successfully resolves all outstanding issues and there will be no further argument. For this reason, I have given the matter a directions hearing only. If there are further issues in relation to the imputations in the next draft of the statement of claim, they will have to be determined before I can finally rule on the imputations challenges currently on foot.
Arguments about imputations have been condemned as sterile exercises which waste court time, but the dangers (and costs) caused by leaving defective imputations in the pleading which then fail at trial are starkly illustrated by the result in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652. There are clearly defamatory meanings in at least three of the four publications and the task of distilling them in the next draft of the statement of claim should be a straightforward matter.

Aggravated damages

I have left it to the parties to determine the outstanding difficulties with the claim for aggravated damages. The defendants do not need an order to seek further and better particulars in relation to such an issue. Such particulars should be sought by them at the earliest opportunity. There has already been substantial delay in these proceedings and further disputes about the pleading of any part of the statement of claim must be dealt with without any further delay by either party.

Costs

The first matter complained of has been struck out but, given the potential for there to be some reformulation of the claim, perhaps by true innuendo, I have granted leave to replead. The costs of this issue would normally go to the defendant, but I propose to reserve them so that a costs order can be made when the statement of claim is at last able to be the subject of rulings.
There remain potential difficulties in the formulation of the imputations in relation to the remaining three publications. I propose to reserve the question of costs so that the parties can make such submissions as may be appropriate when the imputations have been the subject of a final ruling and any other outstanding issues, such as complaints about a claim for aggravated damages, have also been ventilated. This is a highly unsatisfactory situation given the degree of delay caused by the plaintiff's poor pleading, and this may be reflected in the costs orders to be made when the pleading has been rectified and the capacity hearing is finally able to be concluded.

Orders 1. The claim for publication 1 set out in paragraphs 3 - 5A of the statement of claim is struck out, with leave to replead. 2. The plaintiff is granted leave to replead the imputations in publications 2 - 4 in accordance with my rulings set out above and, where compliance with those rulings impinges upon other imputations, to redraft those imputations as well. 3. Plaintiff's amended statement of claim to be filed and served by 4:00pm Wednesday 27 November 2019. 4. Proceedings relisted in the Defamation List on Thursday 28 November 2019 for further directions for completion of the defendants' applications, including applications for further rulings. 5. Costs reserved.

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. Decision last updated: 14 November 2019

At a glance

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Judgment (38 paragraphs)

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Cases Cited (19)

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