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[2010] VSC 94
Supreme Court of Victoria
2010-04-01
KAYE J
Original judgment source is linked above.
DEFAMATION - Practice and procedure - Pleading - Imputations - Whether defendant entitled to plead alternative imputations - Whether defendant's alternative imputations capable of supporting defence of contextual truth - Propriety of particulars of reasonableness of defendant for purposes of qualified privilege defence - Whether plaintiff's imputations capable of arising - Defamation Act 2005 (Vic) ss 25, 26,30.
1 In this proceeding, the plaintiff claims damages against the defendant for defamation in respect of a media release, published by the defendant on 12 May 2009, entitled "Brumby must Stand Down Newnham.". The pleadings have closed. In the application before me, the plaintiff seeks orders striking out two of the defences pleaded by the defendant, and also striking out some of the particulars of the defences pleaded by the defendant. In response, the defendant has made an application that two of the three imputations, pleaded by the plaintiff, be struck out.
2 The plaintiff was, until September 2009, the Victorian State Secretary and Campaign Director of the Australian Labor Party. The defendant is and was the Leader of the Liberal Party in the Victorian Legislative Council. The media release, which is the subject of the proceeding, contains references by the defendant to, and comments by the defendant on, a report of the Victorian Ombudsman dated May 2009 concerning the conduct of councillors of the Brimbank City Council, and also a report of the Victorian Electoral Commission on the Kororoit District by-election, which was held on 28 June 2008. The media release comprises eleven paragraphs. It is necessary for me to set out the contents of the release in full. In doing so, I shall attribute a number to each paragraph of it, to facilitate reference to the release in these reasons.
Premier postures on corruption while protecting officials
- Ombudsman's report into Brimbank Council, May 2009.
4 In paragraph 6 of the Statement of Claim, the plaintiff alleges that in its ordinary and natural meaning the release gave rise to the following three imputations relating to him:
(a) the plaintiff has knowingly or intentionally engaged in repeated and fraudulent breaches of Victoria's electoral laws;
(b) the plaintiff, on several occasions, knowingly and intentionally assisted and encouraged Councillor Ken Capar to misuse his position for personal gain; and
(c) the plaintiff is not a fit and proper person to be the Victorian State Secretary of the Australian Labor Party because he is corrupt.
5 In response, in paragraph 6 of his defence, the defendant has denied that the words, contained in the media release, bore the imputations pleaded by the plaintiff. Instead, the defendant has pleaded that the media release conveyed three different meanings, namely:
(a) that the Ombudsman had effectively found that the plaintiff had knowingly and intentionally engaged in repeated and flagrant breaches of Victoria's electoral laws;
(b) that the Ombudsman had effectively found that the plaintiff had aided and abetted the re-election of a Brimbank City Councillor by countenancing or directing the provision to him of confidential voter information in breach of the Electoral Act 2002, which councillor was subsequently assessed by the Ombudsman to have engaged in improper conduct;
(c) that because the plaintiff had been found by the Electoral Commissioner to have -
(i) countenanced or directed the provision of confidential voter information to a local councillor affiliated with the ALP in breach of the Electoral Act 2002; and
(ii) authorised the distribution of a misleading electoral pamphlet in the Kororoit by-election in June 2008;
he was not a fit and proper person to be the Victorian State Secretary of the ALP.
6 In his defence, the defendant relies on those alternative meanings as the basis of defences of substantial truth at common law and pursuant to s 25 of the Defamation Act 2005 (Defence paragraph 6A), and contextual justification pursuant to s 26 of the Act (paragraphs 6B, 7A). As a prelude to those pleas, the defendant, in paragraph 1A of the defence, has alleged that the plaintiff, until his removal from office in September 2009, was responsible for the supervision and direction of ALP staff, including Mr Sanli, for the approval of ALP's State electoral material, and for compliance by the ALP with the Electoral Act 2002. The defendant has also pleaded defences of honest opinion under s 31 of the Act, and qualified privilege pursuant to s 30, and common law qualified privilege (paragraph 6D). In response, the plaintiff has delivered a reply, alleging that the defences of truth, founded on the defendant's alternative meanings, are bad at law; that if the release conveyed an opinion, that opinion was not based on proper material, and was not honestly held by the defendant; and that the defence of qualified privilege is untenable because (inter alia) the conduct of the defendant was not reasonable in the circumstances and the defendant was actuated by malice.
7 By this application, the plaintiff seeks to strike out the defences of common law and statutory justification and the defence of contextual truth pleaded in paragraphs 6, 6A, 6B and 7A of the defence, together with paragraph 1A. He also seeks to strike out one of the particulars pleaded in respect of the defence of common law and statutory justification, and the particulars pleaded under the common law defence of qualified privilege.
8 The defendant, in response, has applied for an order striking out part of the imputation pleaded in paragraph 6(a) of the Statement of Claim, and the whole of the imputation pleaded in paragraph 6(b).
Defence of justification - common law and statutory
9 I turn, first, to the application by the plaintiff to strike out paragraph 6A of the defence, which pleads the defence of justification at common law and under s 25 of the Defamation Act. Ms Schoff, who appeared on behalf of the plaintiff, based her submissions on the principle that it is not permissible for a defendant to justify a meaning, which is different to, and distinct from, the imputations pleaded by the plaintiff. Rather, a defence of justification must be directed to the imputations pleaded by the plaintiff, or a "variant" or "nuance" of those imputations, so as to address the "sting" of the publication complained of by the plaintiff. In support of that proposition, Ms Schoff relied principally on the decisions of the Court of Appeal in David Syme &Co Ltd & Anor v Hore-Lacy[1], and in Hore-Lacy v Cleary & Anor[2], and my recent decision in Soultanov v The Age Co Ltd & Anor [3].
10 Ms Schoff submitted that the imputations pleaded by the defendant, in paragraph 6 of the defence, are substantially different from the imputations pleaded and relied upon by the plaintiff. On the one hand, the defendant has sought to justify imputations that the Ombudsman and the Electoral Commissioner have made particular findings about the plaintiff, in consequence of which the plaintiff was not a fit and proper person to be the Secretary of the Australian Labor Party. By contrast, the plaintiff's case is based on imputations that the plaintiff indulged in particular conduct alleged by the defendant, and accordingly he was not a fit and proper person to be the State Secretary of the Australian Labor Party. Ms Schoff submitted that, on their face, the imputations, sought to be relied upon by the defendant, could not reasonably be considered to be a nuance or variant of the imputations relied on by the plaintiff, but, rather, they seek to ascribe to the media release, and justify, a substantially different sting than that complained of by the plaintiff.
11 In support of that proposition, Ms Schoff submitted that it is instructive to examine the particulars, upon which the plea of justification, by the defendant, is sought to be substantiated. She submitted that an examination of the particulars to paragraph 6A demonstrates that, in seeking to justify his first imputation, the defendant is only seeking to prove: first, that there had been a report by the Ombudsman to the effect that there appeared to have been breaches of the Electoral Act by the Australian Labor Party, and possibly by Mr Sanli, and, that the Victorian Electoral Commission should investigate those possible breaches; secondly, that the Victorian Electoral Commissioner had made findings that Mr Sanli appeared to have contravened s 36 of the Electoral Act, and that the ALP (through the office of the Secretary) had distributed pamphlets in the Kororoit District by-election in June 2008, which were likely to be misleading to electors; and, thirdly, that the Electoral Commission had decided not to prosecute the ALP, because the Electoral Act did not cover that conduct. Thus, Ms Schoff submitted, the totality of the matters, sought to be proven by the particulars, are quite distinct from the imputations complained of by the plaintiff in his Statement of Claim.
12 In response, Mr S Wilson QC, who appeared with Mr T McEvoy for the defendant, submitted that the imputations pleaded, and sought to be justified, by the defendant, are not separate and distinct from the plaintiff's imputations, but are closely connected and intertwined with the imputations pleaded and relied on by the plaintiff. He submitted that the media release comprised a number of references to findings by the Ombudsman and the Victorian Electoral Commissioner, and the defendant's comments based on those findings. Mr Wilson submitted that each assertion by the defendant in the media release, which did not consist of a recitation or summary of a finding by the Ombudsman or the Electoral Commissioner, was based either wholly or in part on such a finding. Mr Wilson submitted that there are thus two intertwined strands of imputation contained in the media release, namely, first, the recitation or paraphrasing of findings by the Ombudsman and the Electoral Commission and, secondly, statements made by the defendant based on those findings.
13 In support of his submissions, Mr Wilson contended that, on any view, the assertions made by the defendant in the media release have their source in the findings of the Ombudsman and the Victorian Electoral Commissioner, as referred to in the media release. He submitted that the critical question for the jury would be whether the assertions made by the defendant went further than a recitation, or summary, of those findings. He submitted that, in that way, the plea by the defendant, contained in paragraphs 6 and 6A the defence, would not create a false issue, nor would it divert the jury from the case sought to be made by the plaintiff. Rather, he submitted that the imputations, relied on by the defendant, are a variant of the imputations pleaded by the plaintiff.
Pleading and relying on alternative imputations - Principles
14 The principles, relating to the ability of a defendant to justify an imputation, which differs from the imputations pleaded by the plaintiff, have been developed in a number of decisions in recent times. Those principles are essentially correlative to the right of a plaintiff to succeed, at trial, on a meaning or meanings, which differ from the imputations pleaded by the plaintiff. In Chakravarti v Advertiser Newspapers Ltd (1998)[4], the High Court was concerned with the question of the extent to which a court, at trial, might depart from the meaning pleaded by a plaintiff, in finding a publication to be defamatory of the plaintiff. In their joint judgment, Gaudron and Gummow JJ held that, ordinarily, a plaintiff would be permitted to rely on meanings which were comprehended in, and were less injurious than, the meaning pleaded in the Statement of Claim.[5] Brennan CJ and McHugh J, in their joint judgment, adopted a slightly more restrictive approach, namely that the plaintiff was entitled to rely on a different meaning which was a "nuance" of the meaning pleaded by the plaintiff.[6] Kirby J adopted a broader approach. However, in each of the separate judgments, the Court defined the applicable test by reference to what, in an appropriate case, would ensure that there was no injustice to the defendant, in permitting the plaintiff to depart from the meanings pleaded in the Statement of Claim. In particular, the critical question was stated by the Court to be whether any departure by the plaintiff from the meanings, pleaded in the Statement of Claim, might unfairly prejudice the defendant, in the particular case, by raising a case which was different to that sought to be met by the defendant in his or her defence to the Statement of Claim.
15 In David Syme & Co Limited v Hore-Lacy[7], the Court of Appeal was concerned with the converse issue, namely, the question of the extent to which a defendant is entitled to plead, and to justify, a meaning which differs from the imputation, or imputations, relied upon by the plaintiff. In separate judgments, Ormiston JA and Charles JA each held that the test, which applies to a defendant, is the same test as that which applies to a plaintiff, namely, that each party is restricted to the imputations pleaded by the plaintiff, or to a meaning which is either a variant of, or not substantially different from, the pleaded meaning, and which is no more injurious or serious than the pleaded meaning. Thus Ormiston JA stated:
"...the jury may properly be instructed that they can go beyond the meanings alleged, but only so long as the meaning they fix upon is comprehended by, or a variant of, one of the meanings pleaded or otherwise relied upon."[8]
16 Based on that principle, Ormiston JA concluded that a defendant should be permitted to plead, or rely on, a meaning "...other than one which is not more serious and otherwise not substantially different" from the meanings pleaded by the plaintiff[9].
17 Recently, the same tests have been applied in determining whether a defendant is entitled to address a defence of fair comment to a meaning, which differs from the imputations pleaded by the plaintiff. Consistently with the principles in Chakravarti and Hore-Lacy, it has been held that a defence of fair comment must address the imputations pleaded by the plaintiff, or a variant or nuance of those imputations, which is not substantially different from, and no more serious than, those imputations[10].
18 The tests, to which I have just referred, are essentially a product of the rules of pleadings, which govern the conduct of common law trials. As a matter of fairness, a plaintiff is restricted to relying, and succeeding on, the imputations pleaded in the Statement of Claim, or a variant or nuance of them, which is comprehended in the imputations, and no more serious than them. The purpose of that principle is to prevent the unfair prejudice which might be suffered by a defendant by reason of a plaintiff succeeding on a case which is different to that identified in the pleadings, and which the defendant has sought to meet at trial. Conversely, the defendant is similarly restricted to meeting the same case, which the plaintiff would be entitled to make on its own pleadings. In other words, the defendant is only permitted to plead, by way of justification or fair comment, a defence addressed to the imputations relied on by the plaintiff, or a meaning or variant of them, which is comprehended in the imputations pleaded by the plaintiff, and is no more injurious than them. If the defendant were to seek to defend imputations which did not answer that description, the defendant would thereby raise false issues at the trial, which are not agitated, nor sought to be agitated, by the plaintiff. In that way, not only would the trial be "hijacked", but unfair prejudice would be occasioned to the plaintiff.
19 Based on those considerations, it can be seen that a defendant would be entitled to plead justification (or fair comment) to meet a meaning or meanings, which a jury, properly instructed, might find to be a variant, or nuance, of the imputations pleaded by the plaintiff, or comprehended by them, and which is no more injurious than the plaintiff's imputations. If the defendant were not entitled to plead to those alternative imputations, the defendant might suffer unfair prejudice, by being prevented from defending and addressing imputations which might be found to arise from the publication by the jury.
20 With those principles in mind, I return to the media release, which is the subject of this proceeding, and the three imputations sought to be relied upon by the plaintiff. In doing so, it is important to make two preliminary observations. First, in the course of argument, it was made clear that the plaintiff does not contend that the imputations, sought to be justified by the defendant, could not reasonably be found to arise from the media release. In other words, it was not submitted that a jury, properly instructed, could not conclude that the imputations, relied upon by the defendant, do not derive from the media release. Secondly, the plaintiff does not contend that it is not permissible for the defendant to seek to justify findings attributed to the Ombudsman and the Electoral Commissioner, by proving no more than the making of those findings by the Ombudsman and the Commissioner. In other words, it has not been contended by the plaintiff that, in order to justify the repetition and re-publication of those findings in the media release, the defendant must seek to prove the actual truth and validity of the findings themselves.[11] Rather, as I stated, the principle relied upon by the plaintiff is that the defendant is not entitled to justify meanings which are substantially different from those sought to be relied upon by the plaintiff.
Defendant's first imputation - Defence paragraph 6(a)
21 I turn, then, to the three imputations pleaded by the plaintiff, and the three imputations pleaded in response by the defendant. The first imputation pleaded by the plaintiff - that the plaintiff "knowingly and intentionally engaged in repeated and fraudulent breaches of Victoria's electoral laws" - is to be compared with the corresponding imputation pleaded by the defendant, namely that "the Ombudsman had effectively found that Newnham had knowingly and intentionally engaged in repeated and flagrant breaches of Victoria's electoral laws."
22 There are two express differences between the first innuendos pleaded by the plaintiff and the defendant respectively. First, the plaintiff's imputation is couched as an assertion of fact by the defendant. On the other hand, the defendant's imputation is couched as a "finding" by the Ombudsman. Secondly, the plaintiff's imputation involves an allegation of "fraudulent" breaches of the electoral laws; by comparison, the defendant's imputation describes the breaches of the electoral laws as "flagrant".
23 In considering the application of the principles, stated in Hore-Lacy, to the different versions of the first imputation, it is important to bear in mind that the plaintiff does not, for the purposes of this application, contend that the defendant's alternative imputation is not reasonably open to the jury. In other words, for the purposes of this application, the plaintiff accepts that a jury might reasonably conclude that the media release did not bear the first imputation pleaded by the plaintiff but, rather, bore the imputation pleaded by the defendant. Thus, it is accepted that it might be open to the jury to find that the media release did not give rise to the imputation described within paragraph 6 of the Statement of Claim, but, rather that it bore the imputation that the Ombudsman had made findings that the plaintiff had knowingly and intentionally engaged in repeated and flagrant breaches of Victoria's electoral laws. Secondly, it is important to note that both the plaintiff's and the defendant's imputations relate to the same topic, namely the allegation (in one form or another) that the plaintiff had knowingly or intentionally engaged in repeated breaches of Victoria's electoral laws. Thirdly, the one difference in the description of those breaches - whether they were flagrant or fraudulent - arises from the allegation in the media release that the plaintiff had been caught "rorting" electoral laws. While the adjective "fraudulent" is stronger than "flagrant", they both address the same matter, namely, the level of "moral " culpability involved in the breaches of the Victorian electoral laws alleged in the media release.
24 The first two particulars under paragraph 6A of the defence are directed to the first imputation pleaded by the defendant. The first particular states that in his report into the Brimbank City Council, the Ombudsman considered that there had been breaches of the Electoral Act by the ALP, and possibly by its Data Manager, Mr Sanli. The second particular recites some findings by the Ombudsman in his report, including that: Mr Sanli had been providing electoral information to local councillors for some years; the plaintiff had been aware that Sanli had been sending out that information for campaign services; and the plaintiff had received a legal advice from solicitors to the effect that the ALP was prohibited from using the information derived from the electoral roll in connection with local council elections, but that the plaintiff had not provided that advice to Mr Sanli for more than one month. Taken together, those particulars are directed to making a case that the Ombudsman had made findings as to the involvement, or acquiescence, of the plaintiff in the conduct of Mr Sanli, in misusing electoral information for purposes not permitted by Victoria's electoral laws. Those particulars are thus directed to the issue whether the Ombudsman had made the findings ascribed to him in the first imputation pleaded by the defendant.
25 Ultimately, the question is whether, in light of the foregoing analysis, it might be concluded that the defendant's first imputation is comprehended in, or a variant of, the plaintiff's imputation, and is less injurious than it. In considering that question, it is important to bear in mind the direction which will be given to a jury when considering the meanings to be derived from the media release. In David Syme & Co Ltd v Hore-Lacy[12], Ormiston JA stated that the appropriate instruction to give a jury is as follows:
"...the jury may properly be instructed that they can go beyond the meanings alleged, but only so long as the meaning they fix upon is comprehended by or is simply a variant of one of the meanings pleaded [by the plaintiff] or otherwise relied upon."
26 If such a direction were given to the jury, in my view, given the matters to which I have already referred, it is reasonably possible that the jury might conclude that the relevant passages of the media release as a variant of the plaintiff's meaning, bore the meaning ascribed to it by the defendant in his first imputation, and not the meaning alleged by the plaintiff. In other words, because of the common features of the two sets of imputations, which I have discussed above, a jury may conclude that the release bore the meaning contended for by the defendant, and that that meaning is comprehended by, or a variant of, the first imputation relied on by the plaintiff. If they were to reach that conclusion, then it would be unjust to shut the defendant out from seeking to justify that imputation. As I stated, the imputation is directed to the same subject matter as the plaintiff's first imputation, namely, the alleged involvement of the plaintiff in repeated breaches of Victoria's electoral laws. The issue for the jury will be whether the media release bore the meaning ascribed to it by the defendant, or whether, rather, it bore the meaning pleaded by the plaintiff in his first imputation. Further, I consider that if a jury were to conclude that the imputation pleaded by the defendant was to be derived from the media release, it would be open to the jury to consider that that imputation was no more injurious than the imputation pleaded by the plaintiff.
27 Further, if the defendant were permitted to allege the imputation pleaded in paragraph 6A of the defence, it would not thereby raise a false issue at the trial. Rather, it would address the same issue as that raised by the plaintiff, namely, the meaning of the media release, and in particular paragraphs one to four and seven, of the release. Furthermore, as Ms Schoff correctly acknowledged, the relevant passages of the report of the Ombudsman will, in any event, be in evidence before the jury as the plaintiff will seek to rely upon a number of those passages in support of his claim for aggravated damages. The defendant may seek to rely upon them in relation to the defences of honest opinion (pleaded in paragraph 6(c)), statutory qualified privilege (pleaded in the second paragraph 6C), and common law qualified privilege (pleaded in paragraph 6D). Thus, I do not consider that the first alternative imputation, in paragraph 6(a) of the defence, would unfairly prejudice the plaintiff, nor would it raise a false issue, which would inappropriately distract the jury from the case made by the plaintiff, in accordance with the imputations pleaded by the plaintiff.
Defendant's second imputation - Defence paragraph 6(b).
28 The plaintiff (in paragraph 6(b) of the Statement of Claim) has pleaded that the media release bore an imputation that the plaintiff, on several occasions, had "knowingly and intentionally assisted and encouraged Councillor Ken Capar to misuse his position for personal gain". In response, the defence (paragraph 6(b)) has pleaded that the media release meant that the Ombudsman had "effectively" found that the plaintiff had "aided and abetted the re-election of a Brimbank City Councillor by countenancing or directing the provision to him of confidential voter information in breach of the Electoral Act 2002, which councillor was subsequently assessed by the Ombudsman to have engaged in improper conduct."
29 There are two differences between the second imputations pleaded by the plaintiff and by the defendant respectively. First, the plaintiff, in his imputation, has pleaded that the first eight words of paragraph 8 (that "Stephen Newnham aided and abetted Councillor Ken Capar...") is an allegation that the plaintiff knowingly and intentionally assisted and encouraged Capar. On the other hand, the defendant, in his imputation, has pleaded that those words meant that the Ombudsman had made a finding that the plaintiff had aided and abetted Capar. Secondly, the plaintiff, in his second imputation, has pleaded that the aiding and abetting, ascribed to him in paragraph 8, was in relation to the conduct of Capar found by the Ombudsman, (and which is directly quoted in paragraph 8 of the release), namely, improper conduct by Capar as a Councillor "by misusing his position for his own personal gain on several occasions." On the other hand, the defendant has pleaded that the allegation, of aiding and abetting Capar, in paragraph 8 of the release, related to Capar's involvement in the breaches of the Electoral Act, found by the Ombudsman, and described in paragraph 1 of the release. Thus, the defendant, in effect, by his second imputation pleads a disconnect between the allegation of aiding and abetting, and the conduct which the Ombudsman found Capar had indulged in, in paragraph 8 of the media release.
30 On their face, the two imputations are thus reasonably different. In essence, they do have in common the imputation that the plaintiff aided and abetted Capar in his capacity as a councillor. As I have stated, the first difference is whether the aiding and abetting was a finding by the Ombudsman, or simply an allegation by the defendant. That difference will be simply resolved by reference to the Ombudsman's report, and particularly to the relevant passage in it, identified in the particulars under paragraph 6(a) of the defence. As I stated, the relevant passages of the report will, in any event, be in evidence in the case.
31 The more significant difference between the two imputations relates to the question of what the plaintiff is alleged (or has been found) to have aided and abetted Capar to have done. In this context, the phrase "misusing his position for his own personal gain" was unspecific. The plaintiff has repeated that phrase in his second imputation. In itself, the phrase could, conceivably, mean no more than the misuse by Capar of his position to obtain information for the purposes of his own personal electoral gain. On the other hand, it may denote the gaining by the councillor of corrupt financial or material advantage. If the jury were given the instruction, sanctioned by Ormiston JA in David Syme & Co Ltd v Hore-Lacy, it is conceivable that they might accept the proposition advanced by the plaintiff, namely that the "aiding and abetting" in paragraph 8 attached to the finding by the Ombudsman of misuse of position for personal gain, yet, at the same time, consider that the "personal gain", referred to, related to personal electoral advantage. Such a construction is, in my view, reasonably conceivable, given that the media release was concerned, as a whole, with the misuse of position for the purposes of obtaining information for illegitimate electoral gain. Thus, seen in that light, the imputation pleaded by the defendant may be regarded as a "variant" of, or as being comprehended within, the imputation pleaded by the plaintiff. The defendant's second imputation is, on its face, less injurious than the plaintiff's second imputation. If the defendant were permitted to plead the imputation, I do not consider that it would create a false issue within the trial. On the other hand, if the defendant was shut out from pleading that imputation, in my view the defendant would suffer prejudice, if the jury, given the instruction suggested by Ormiston JA in David Syme & Co Ltd v Hore-Lacy, were to conclude that paragraph 8 of the release bore a meaning akin to that contended for by the defendant, as a meaning which was a variant of, or comprehended in, the plaintiff's second imputation.
Defendant's third imputation - Defence paragraph 6(c).
32 The third imputation, pleaded by the plaintiff (in paragraph 6(c) of the Statement of Claim), is that the plaintiff "is not a fit and proper person to be the Victorian State Secretary of the Australian Labor Party because he is corrupt." On the other hand, the defendant (in paragraph 6(c) of the defence) has pleaded that the words, in the release, meant that the plaintiff was not a fit and proper person to be the Victorian State Secretary of the ALP, because he had been found by the Electoral Commissioner (and, as by foreshadowed amendment, the Ombudsman) to have -
(i) countenanced or directed the provision of confidential voter information to local councillors affiliated with the ALP in breach of the Electoral Act 2002; and
(ii) authorised the distribution of a misleading electoral pamphlet in the Kororoit by-election in June 2008.
33 Presumably, the imputation that the plaintiff was "corrupt", complained of by the plaintiff, is derived from the second, and possibly first, imputation pleaded by the plaintiff. On the other hand, the defendant's third imputation is based on the first two imputations pleaded by the defendant, and also on the additional imputation that the plaintiff had been found by the Electoral Commissioner, or the Ombudsman, to have authorised the distribution of a misleading electoral pamphlet in the Kororoit by-election in June 2008. That additional allegation - relating to the Kororoit by-election - is derived from the third and fifth paragraphs of the media release, which, the defendant contends, refers to a finding by the Victoria Electoral Commission that misleading pamphlets had been distributed in the Kororoit by-election. The third imputation pleaded by the defendant is to the effect that that conduct of the Australian Labor Party had been authorised by the plaintiff. As I stated, it is not contended, in this application, that that imputation is not capable of arising from the media release.
34 In essence, the plaintiff's third imputation, and the defendant's third imputation, each have in common the allegation that the plaintiff is not a fit and proper person to be the Victorian State Secretary of the Australian Labor Party. The plaintiff's third imputation is derived from the first two imputations pleaded by him. On the other hand, the defendant's imputation is derived from the first two imputations pleaded by him, and also from the further imputation relating to the Kororoit by-election. That imputation, and indeed the allegations concerning the Kororoit by-election, were textually connected within the media release. In light of my conclusion that the first two imputations pleaded by the defendant are permissible under the principles enunciated in David Syme & Co Ltd v Hore-Lacy, it follows that the third imputation is, equally, admissible. For those reasons, I reject the application by the plaintiff to strike out paragraphs 6 and 6A of the defence on that basis. It follows from that conclusion, that I should also permit paragraph 1A of the defence to stand, as an introduction to paragraphs 6 and 6A of the defence.
35 In the course of her submissions, Ms Schoff advanced an argument that the particulars, provided under paragraph 6A of the defence, are not capable of proving the truth of the three imputations sought to be pleaded by the defendant. I did not understand that submission to be at the forefront of the application made on behalf of the plaintiff. However, because the contention was made, it is appropriate for me to deal with it, albeit that I shall do so in short compass.
36 As I stated, particulars (i) (ii) and (iii) under paragraph 6A are directed to the first imputation pleaded by the defendant. They are relevant to that imputation. While, on their face, it is quite possible that they may fall short of establishing that imputation, in my view that is a matter for the jury.
37 Similarly, it would seem that the defendant relies on the first four particulars to support the second imputation which he seeks to justify. Each of those particulars are relevant to the question of the justification of that imputation. Again, in my view, it is a matter for the jury to determine whether those particulars are sufficient to justify the imputation pleaded in paragraph 6(b) of the defence.
38 The fifth particular, under paragraph 6A of the defence relates to the part of the imputation pleaded in paragraph 6(c) relating to the authorisation of the distribution of a misleading electoral pamphlet in the Kororoit by-election. I consider that the particulars are relevant to that allegation, and, once again, it is a matter for the jury to determine whether the particular is sufficient to justify that part of the third imputation.
39 For those reasons, albeit shortly stated, I reject the submission made by the plaintiff that the particulars under paragraph 6A of the defence are not reasonably capable of supporting the plea of justification to the innuendos pleaded in paragraph 6 of the defence.
40 The plaintiff also seeks to strike out paragraph (vi) of the particulars provided under paragraph 6A of the defence. That particular states:
"Having regard to these matters the Premier of Victoria and Parliamentary Leader of the ALP, the Honourable John Brumby MLA, had consistently refused to express confidence in Newnham and on or about 15 September 2009 Newnham was replaced as State Secretary and Campaign Director of the ALP by the Premier's Chief Policy Officer, Mr Nick Reece."
41 Ms Schoff has submitted that that particular is not relevant to the plea of justification by the defendant. In particular, she submitted that the fact that the Premier failed to express confidence in the plaintiff, and the fact that he was subsequently replaced as State Secretary and Campaign Director of the Australian Labor Party, are not capable of establishing the truth of any of the three imputations pleaded by the plaintiff.
42 In response, Mr Wilson submitted that the matters contained in particular (vi) are relevant to the plea of justification to the third imputation pleaded by the defendant. He submitted that if the plaintiff was subsequently removed as State Secretary because of the findings of the Ombudsman, then that is relevant to proving the truth of the imputation that, by reason of the Ombudsman's findings, the plaintiff was not a fit and proper person to hold the position as State Secretary of the Australian Labor Party.
43 I consider that the submission made by Ms Schoff is correct. In paragraph 6A of the defence, the defendant (inter alia) seeks to justify the imputation pleaded by him in 6(c) of the defence, namely that because of the findings by the Electoral Commissioner and the Ombudsman, the plaintiff was not a fit and proper person to be the State Secretary of the Australian Labor Party. In my view, the opinion of the Premier, and indeed of those who were responsible for removing the plaintiff as Secretary of the Australian Labor Party, is not relevant to the question whether, by reason of the findings by the Electoral Commissioner and the Ombudsman, the plaintiff was not a fit and proper person to be the Victorian State Secretary. The fact that subsequent to the media release, the plaintiff was stood down as State Secretary does not, logically, prove that he was not a fit and proper person to hold that position. Nor would the reasons for him being stood down, or the opinions held by those who were responsible for standing him down, be relevant or admissible to establish whether or not the plaintiff was a fit and proper person to be the State Secretary. Rather, in order to establish the truth of that imputation, the defendant is required to prove sufficient facts from which the jury, as a fact, would be entitled to conclude that the plaintiff was not a fit and proper person to hold the position of the Victorian State Secretary of the Labor Party. For those reasons, sub-paragraph (vi) of the particulars under paragraph 6A of the defendant's defence should be struck out.
44 In paragraph 6B of the defence, it is pleaded that the meanings, set out in paragraph 6 of the defence (to which I have referred above), are contextual meanings for the purposes of s 26 of the Defamation Act 2005. Paragraph 7A of the defence, as presently constituted, is confusing and, probably, defective. However, the defendant has foreshadowed seeking leave to amend paragraph 7A, to read as follows:
"Further or alternatively, if the Release conveyed the meanings set out in paragraph 6 of the Statement of Claim (which is expressly denied), then such meanings did not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations, pleaded in paragraph 6 and 6B hereof whereby the defendant has a defence pursuant to s 26 of the Defamation Act 2005."
45 Ms Schoff submitted that the plea of contextual truth is flawed on two bases. First, she submitted that, in order that such a defence be available, the contextual imputations, relied upon by the defendant, must be additional to the imputations pleaded by the plaintiff. In other words, the contextual imputations, sought to be justified by the defendant, must be separate and distinct from the imputations alleged by the plaintiff. In support of that proposition, she referred to the decision of Hunt J in Jackson v John Fairfax & Sons Ltd[13]. She submitted that the imputations, pleaded by the defendant, are alternatives to the imputations pleaded by the plaintiff. In particular, she submitted that if I were to find that the defendant's imputations were "variants" of the plaintiff's imputations, then they could not be additional to those imputations, and thus they could not be the subject of a contextual justification defence.
46 Secondly, Ms Schoff submitted that a jury could not reasonably conclude that the imputations, pleaded by the defendant, were more serious than the imputations relied on by the plaintiff. Thus, she submitted, the jury could not reasonably conclude, pursuant to s 26(b) of the Defamation Act, that the defamatory imputations (relied on by the plaintiff) did not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations (pleaded by the defendant).
47 In response, Mr Wilson submitted that the jury may find that the defendant's meanings are sufficiently different from the plaintiff's meanings, and are at least equally injurious as the plaintiff's meanings, to satisfy the requirements of the defence of contextual truth. He submitted that, ultimately, it is a matter for the jury to determine whether the imputations, pleaded by the defendant, are additional to the imputations pleaded by the plaintiff, so as to qualify as contextual imputations under s 26(a) of the Defamation Act. Similarly, he submitted that it is a matter for the jury to determine whether, pursuant to s 26(b) of the Act, the plaintiff's imputations did not further harm the reputation of the plaintiff, because of the substantial truth of the contextual imputations pleaded by the defendant.
48 The first point, raised by Ms Schoff, is whether the contextual imputations pleaded by the defendant are, or are capable of being, additional to the imputations pleaded by the plaintiff. It is clear, from the express terms of s 26(a), and also from the structure of a contextual truth defence, that the contextual imputations must be "additional to" the imputations pleaded by the plaintiff. Section 26(a) expressly requires that the contextual imputations arise "in addition to" the defamatory imputations of which the plaintiff complains. The structure of s 26 is such that it requires a comparison, by the Court, of two sets of imputations to be derived from the defamatory material, namely, the plaintiff's imputations, and the contextual imputations. Thus, as Hunt J stated in the John Fairfax & Sons Ltd[14] case, it is necessary that the contextual imputations relied on by the defendant "differ in substance" from those pleaded by the plaintiff.
49 Mr Wilson submitted that it is sufficient if I were to conclude that a jury could find that the imputations, pleaded by the defendant, were different from, and additional to, the imputations pleaded by the plaintiff. In response, Ms Schoff submitted that the question, as to whether the contextual imputations are additional to the plaintiff's imputations, is not a matter for the jury, but for the judge. In my view, Mr Wilson is correct. In Jackson's case, Hunt J considered that the relevant test, which he was to apply, was whether the contextual imputations were capable of being conveyed "at the same time and in addition to the imputations pleaded by the plaintiff"[15]. With respect, I consider that that test is correct. If a defence of contextual truth were to proceed before a jury, it would be a matter for the jury (and not the judge) as to determine whether the defamatory matter conveyed the contextual imputations and, also, whether those contextual imputations were "in addition to" the defamatory imputations. That issue would not fall for determination by the trial judge. At this stage, and at trial, the role of the judge is to determine whether the contextual imputations relied upon by the defendant, are capable of being derived from the defamatory matter and, if so, whether those contextual imputations are reasonably capable of being considered to be additional to the defamatory imputations pleaded by the plaintiff. Similarly, I consider that the applicable test for a judge, in considering s 26(b) of the Defamation Act, is whether a jury might reasonably conclude that the plaintiff's imputations did not further harm the reputation of the plaintiff, because of the substantial truth of the defendant's imputations, if in fact the defendant's imputations are found to be contextual imputations.
50 The second point raised by Ms Schoff concerns the application of s 26(b) of the Act. There is some conflict in the authorities as to the correct test, which should be applied by the Court, in undertaking the comparison required by s 26(b) of the Act. On the one hand, the decisions of Hunt J in Jackson v John Fairfax & Sons Ltd[16], and of the New South Wales Court of Appeal in Australian Broadcasting Corporation v Hodgkinson[17], are authorities for the proposition that the correct approach is by weighing the imputations pleaded by the plaintiff against the imputations pleaded by the defendant. On the other hand, in John Fairfax Publications Pty Ltd v Blake[18] Spigelman CJ disagreed with that approach. His Honour considered that, in considering the application of s 26(b), the Court must focus on the facts, matters and circumstances which are said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself.[19] That conclusion was based on the terms of s 26(b), namely, that the defamatory imputations do not further harm the reputation because of the "substantial truth of the contextual imputations". The matter was not the subject of argument before me and it is desirable that I refrain from expressing any view on it. Accordingly, I shall decide the issues relating to s 26(b) by reference to both tests.
51 Bearing those tests in mind, it is necessary to give further consideration to the question of the potential relationship between the three imputations pleaded by the plaintiff, and those pleaded by the defendants. In respect of the first imputation pleaded by the plaintiff and the defendant, I do not consider that the jury could reasonably conclude that the two sets of imputations were additional to each other. The passages, directly quoted from the Ombudsman's report, do not implicate the plaintiff in the potential breaches of the Electoral Act. Rather, that is asserted in - or, rather, implied from - paragraph 3 of the media release. The statement, that the Ombudsman's finding that Labor had breached the Electoral Act "...is not the first time that Mr Newnham has been caught rorting electoral laws in Victoria" is capable of meaning either that the Ombudsman had found that Mr Newnham had been involved in the breach, or that Mr Davis was asserting that he was caught up in the breach found by the Ombudsman. In my view, it is not reasonably capable of bearing both meanings. Further, the first imputation pleaded by the plaintiff is that the release meant that the plaintiff had been involved in "fraudulent" breaches of Victoria's electoral laws, whereas the defendant's imputation pleads that the words meant that the Ombudsman had found that he had been involved in "flagrant" breaches. The difference between those two adjectives depends on alternative constructions of the word "rort", which is used twice in the media release. Thus, I do not consider that a jury could reasonably conclude that the first imputation pleaded by the defendant is additional to the imputation pleaded by the plaintiff.
52 Furthermore, and in any event, I do not consider that a jury could reasonably conclude that, because of the truth of the defendant's first contextual imputation, the plaintiff's first imputations did not further harm the reputation of the plaintiff. The particulars of justification under paragraph 6A of the defence, which are also relied on in relation to the defence of contextual truth, make it plain that the matters sought to be established by the defendant, in respect of the first imputation, are such that it could not reasonably be concluded that, because of the substantial truth of that contextual imputation, such damage had been thereby occasioned to the reputation of the plaintiff, that the first imputation, pleaded and relied upon by the plaintiff, did not further harm the reputation of the plaintiff.
53 I am of the same opinion in relation to the second imputations pleaded by the plaintiff and the defendant respectively. As I have already indicated, the differences between those two imputations are based upon the construction of the eighth paragraph of the media release. In my view, the jury could not reasonably conclude that the media release, and in particular paragraph 8, are reasonably capable of bearing both meanings. Further, and particularly bearing in mind the particulars of justification pleaded under paragraph 6A, I do not consider that a jury could reasonably conclude that, by reason of the truth of the defendant's contextual imputations, the plaintiff's second imputation did not further harm the reputation of the plaintiff, even if the two imputations are separate.
54 As I have already stated, the plaintiff's third imputation is basically derived from the first and second imputations pleaded by the plaintiff. With one addition, the defendant's third imputation is derived from the first and second imputations pleaded by him. It follows, from the conclusions I have thus far expressed, that I do not consider that the jury could reasonably conclude that the media release gave rise to both sets of imputations. Further, if the defendant's third imputation is capable of being a separate imputation to the plaintiff's third imputation, I do not consider that the defendant's third imputation is of such gravity that it might reasonably be concluded that the plaintiff's third imputation did not further harm the reputation of the plaintiff.
55 Based on those conclusions, I therefore will order that the defence of contextual truth, pleaded in paragraphs 6B and 7A of the defence, be struck out.
The particulars to paragraph 6D(a) of the defence
56 Paragraph 6D of the defence pleads a defence of common law qualified privilege, in terms of the defence considered by the High Court in Lange v Australian Broadcasting Corporation.[20] In paragraph 6D(a), it is pleaded that the release was a communication which "...disseminated information, opinion and argument concerning government or political matters that affected the people of Victoria.". The particulars to that sub-paragraph refer to twelve media publications. The first seven of those publications preceded the publication of the media release, and relate to the Kororoit by-election. The last five articles were published after the publication of the media release, and Mr Wilson conceded that they are irrelevant, and should be struck out. Paragraph 6D(b) of the defence pleads that the defendant's conduct in publishing the release was reasonable. The particulars to that paragraph are as follows:
"Prior to publication of the release, there had already been extensive public reporting which was critical of Newnham in relation to certain matters which were highlighted in the release, and in relation to which Newnham had taken no legal action. The defendant refers to sub-paragraph(i) to (vii) of the particulars subjoined to paragraph 6D(a) hereof."
57 Ms Schoff has submitted that the proof by the defendant of the seven articles, which pre-dated the publication of the media release, is not relevant to any of the matters pleaded in sub-paragraph(a) of the defence. She submitted that the question, whether the release was a communication which disseminated information, opinion and argument concerning Government or political matters that affected the people of Victoria, is a matter which is to determined by the terms of the release, and not by antecedent publicity. In response, Mr Wilson accepted that the defence cannot establish that the release concerned Government and political matters by reference to the existence of various newspaper articles. That concession is plainly correct. Nevertheless, he submitted that it is relevant to point to the extensive pre-publication canvassing in the public media of the issues the subject of the release, to demonstrate that they were matters of opinion and argument concerning Government or political matters that affected the people of Victoria. I do not accept that that is correct for two reasons. First, as properly conceded by Mr Wilson, the characterisation of the release is to be derived from the terms of the release itself, and not by antecedent publicity. Secondly, the seven articles, which pre-dated the release, were only concerned with one aspect of the matters dealt with in the release, namely, with the dissemination of an electoral pamphlet, said to be misleading, in the Kororoit by-election. Further and in any event, the plaintiff expressly accepts that the release was a communication which disseminated information, opinion and argument concerning Government or political matters that affected the people of Victoria. For those reasons, I consider that the particulars to paragraph 6D(a) should be struck out.
58 Ms Schoff further submitted that the newspaper articles, referred to in those particulars, are not relevant to the matters pleaded in paragraph 6D(b) of the defence, namely that the defendant's conduct, in publishing the release, was "reasonable". On the other hand, Mr Wilson contended that the defendant, in determining whether to publish the media release, was entitled to take into account that there had already been publicity, adverse to the plaintiff, before the media release, which had not given rise to any legal proceeding by the plaintiff. Thus, he submitted, the defendant was entitled to proceed on the basis that the plaintiff did not take issue with the matters which had previously been published in relation to him in those articles.
59 There is an element of unreality in deciding the point raised by these submissions. On the one hand, I do not consider, at this stage, that I could shut out the defendant from giving evidence, in relation to the issue of the reasonableness of his conduct, that he took into account that the plaintiff had not taken legal action in relation to the seven publications, referred to in the particulars, and which were critical of him in relation to the publication of a pamphlet relating to the Kororoit by-election. On the other hand, the defendant has not provided any other particulars relating to the plea, in the defence, that his conduct was reasonable. Without pre-judging the issue, it would be surprising if the defendant could sustain that plea, by relying solely on the failure of the plaintiff to take legal action in relation to the seven articles, which related solely to one aspect of the matters contained in media release. However, with that qualification in mind, nevertheless, as I stated, I do not consider that, at this interlocutory stage of the proceeding, I could shut the defendant out from relying on the matters referred to in the particulars to paragraph 6D(b) of the defence. Accordingly, I reject the application of the plaintiff to strike out those particulars.
60 I turn to the application by the defendant in respect of two of the imputations pleaded by the plaintiff. In particular, the defendant has made application that part of the imputation pleaded in paragraph 6(a), and the whole of the imputation pleaded in paragraph 6(b), be struck out.
61 It was submitted on behalf of the defendant that the words "and fraudulent" should be struck out of the imputation pleaded in paragraph 6(a) of the Statement of Claim. Mr Wilson submitted that there is no suggestion, in the release, that the plaintiff had engaged in "fraudulent" breaches of Victoria's electoral rules. He drew my attention to the New Shorter Oxford English Dictionary, which defines fraudulent as (inter alia) "being guilty of, or given to, criminal deception". He submitted that, taken at its highest, the release imputed that the plaintiff had breached ss 36 and/or 37 of the Electoral Act, and that such imputation did not involve any element of fraud.
62 I do not accept that submission. In the third and sixth paragraphs of the release, it is alleged that the plaintiff had been involved in "rorting" the Electoral Act. In common parlance, a rort normally involves an act of exploitation, or taking advantage, of something for a dishonest or illegitimate purpose. Indeed, Ms Schoff drew my attention to the definition of "rort" in the New Shorter Oxford English Dictionary as "a trick, a fraud, a dishonest practice". Thus, in my view, the release is reasonably capable of giving rise to the imputation that the plaintiff had engaged in fraudulent breaches of Victoria's electoral laws.
63 Mr Wilson further submitted that the release is not capable of bearing the imputation pleaded in paragraph 6(b) of the Statement of Claim. He submitted that that imputation involves a strained and unreasonable interpretation of the release. In substance, he submitted that a jury could not reasonably conclude that an ordinary reasonable reader of the release would have understood paragraph 8 of the release to have involved an allegation that the plaintiff had aided and abetted Councillor Capar in engaging in improper conduct in his time as a councillor by misusing his position for his own personal gain. Rather, he submitted that, taken in the context of the whole of the release, the allegation of aiding and abetting of Capar, in paragraph 8 of the release, could only be construed as relating to the conduct of Capar misusing information, which had been provided to him in breach of the Electoral Act.
64 I do not accept that submission. It may be that the construction of paragraph 8 of the release, contended for by Mr Wilson, and reflected in the second imputation pleaded by the defendant, might be open to a jury. However, I do not accept that that is the only reasonable construction of paragraph 8 of the release. In particular, it is significant that the release juxtaposes, in paragraph 8, the allegation that the plaintiff had aided and abetted Capar, with the statement that the Ombudsman had found that Capar, during his time as a Councillor, had engaged in improper conduct by misusing his position for his own personal gain. Bearing in mind the qualities which are attributed to the ordinary reasonable reader[21], in my view a jury might reasonably conclude that the eighth paragraph of the media release bore the meaning pleaded in paragraph 6(b) of the Statement of Claim.
65 For those reasons, I reject the application by the defendant to strike out a part of the imputation pleaded in paragraph 6(a) and the whole of the imputation pleaded in paragraph 6(b), of the Statement of Claim.
66 Based on the foregoing, I therefore state the conclusions, which I have reached in these reasons, as follows:
(1) I uphold the application of the plaintiff to strike out paragraphs 6B and 7A of the defence;
(2) I also uphold the application of the plaintiff to strike out sub-paragraph (vi) of the particulars under paragraph 6A of the defence, and to strike out the particulars under paragraph 6D(a) of the defence.
(3) I reject the application of the plaintiff to strike out paragraphs 1A, 6 and 6A of the defence.
(4) I also reject the application of the plaintiff to strike out the particulars to paragraph 6D(b) of the defence.
(5) I reject the application by the defendants to strike out part of the imputation pleaded in paragraph 6(a) of the Statement of Claim, and to strike out the imputation pleaded in paragraph 6(b) of the Statement of Claim.
[1] (2000) 1VR 667, 673 [17], 675 [21-22] (Ormiston JA), 686 [52] (Charles JA); [2000] VSCA at 24.
[2] [2007] VSCA 314; (2007) 18 VR 562, 569-571 [27] -[35] (Ashley JA); [2007] VSCA 314.
[9] 675 [22]. See also 686 [52]-[53] (Charles JA).
[10] Channel 7 Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245, 288 [83]; Hore-Lacy v Cleary [2007] VSCA 314; (2007) 18 VR 562, 569-571 [28-35], 574 [49] (Ashley JA); Western Australian Newspapers Ltd v Elliott [2008] WASCA 172, [49] (Steytler P), [76] (McLure JA).
[11] Compare Truth (NZ) Ltd v Holloway [1960] 1WLR 997; Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43, 49-50; McCauley v John Fairfax & Sons Ltd (1933) 34 SR (NSW) 339; Nationwide News Ltd v Heggie [2001] NSWCA 257 [8] (Meagher JA), [15] (Hodgson JA), [28] (Fitzgerald AJA).
[13] [1981] 1 NSWLR 36, 39-40.
[16] [1981] 1 NSWLR 36, 39-40.
[17] [2005] NSWCA 190, [33] -[34] (Hodgson JA).
[21] Lewis v Daily Telegraph Ltd [1984] ac 234, 259 (Lord Reid); Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1245 (Lord Reid), 1254 (Lord Morris).
Newnham
Davis
(2007) 18 VR 562
(2000) 1 VR 667
(2007) 232 CLR 245
(1997) 189 CLR 520