Plaintiff v Defendant

Supreme Court of Victoria|2014-12-15|Before: KAYE J

DEFAMATION - Pleading - Application to amend Statement of Claim - Whether imputations open - Whether imputations defamatory - Whether distinct imputations pleaded.

1 The plaintiff is the Mayor of the City of Geelong. He claims damages for defamation in respect of an advertisement published by the defendant on page 8 of the Geelong Advertiser newspaper on 2 November 2013. After the proceedings were issued, the plaintiff filed and served an amended statement of claim. He now applies for leave to file and serve a further amended statement of claim, which, in effect, seeks to amend the three imputations pleaded on behalf of the plaintiff, and to add two further imputations. The application is opposed by the defendant.

2 The advertisement was published in the context of the forthcoming election for the office of the Mayor of Geelong, for which the plaintiff was a candidate. At the top of the advertisement there is a large photograph of Mr Ken Jarvis, who was a former Mayor of Geelong, and who was also a candidate in the forthcoming elections. Alongside that photograph, in bold print, appeared the words: "More experience more credibility resulting in more jobs". Underneath Mr Jarvis's photograph, on the left hand side of the advertisement, were printed the words "Ken Jarvis is the only candidate for mayor equipped to deal with the big issues facing Geelong ... ". Immediately beneath those words, was another photograph of Mr Jarvis, below which, in smaller print, appeared the words "Mayor Jarvis led Geelong out of tough times and put the City on the map in the late 90s". In the middle and right hand side of the lower half of the advertisement was the following text:

Recent job losses ... the Ford closure deadline ... an economy in transition ... the urgent need to create new jobs ... the potential human and economic cost of failing to make the changes we need.

Ken is the only candidate who has the experience, energy, leadership skills and know-how to hit the ground running and get the council back on track at this crucial time in our city's history.

By contrast, the election frontrunner is Darryn Lyons (or "Mr Paparazzi" as he likes to be known).

No doubt Mr Lyons has plenty of energy and the right motives - but, by his own admission, he has no relevant business, council or political leadership experience.

Mr Lyons has listed a number of policies and objectives he would pursue, but with no plan or explanation of how he hopes to implement them. He ignores the potential jobs crisis facing Geelong and has no plan to tackle it.

Geelong cannot afford a further period of stagnation, inactivity and uncertainty while a "rookie Mayor" learns the ropes.

There is a real risk that Geelong's reputation will suffer further damage.

Ken Jarvis knows how to get Geelong moving again.

He has the confidence of business people.

And he has a plan to make it happen.

Geelong needs a safe pair of hands.

With community support, Ken has the proven ability, record of achievement and leadership credentials to deliver.

3 Immediately beneath those words, appear the words (in bold):

Your ballot papers for the Mayoral election will arrive this week. For experience, credibility and jobs, please vote for Ken Jarvis.

4 In paragraph 3 of the proposed further amended statement of claim, the plaintiff pleads that the advertisement bore the following imputations:

In its ordinary and natural meaning, the advertisement was defamatory of the plaintiff and mention was understood to mean that:

(a) the plaintiff was not a fit person to be elected the Mayor of Geelong because he was a man who had simply listed policies and objectives that he would pursue as mayor but had no plan or explanation of how he hoped to implement them;

(b) the plaintiff was not a fit person to be elected the Mayor of Geelong because he was a man who had simply ignored the potential job crisis in Geelong and had no plan to tackle it;

(c) the plaintiff was not a fit person to be elected the Mayor of Geelong because, by his own admission, he was unqualified for the role by reason of having no relevant business, council or political leadership experience;

(d) the plaintiff was so lacking in experience, leadership skills and knowhow that he was not a fit person to be elected the Mayor of Geelong;

(e) the plaintiff was so lacking in experience, leadership skills and knowhow that if elected the Mayor of Geelong the city would stagnate and there was a real risk that its reputation would suffer damage.

5 The defendant opposes the application for leave to file a further amended statement of claim on the grounds that the amendment would be futile, because the imputations, sought to be pleaded, would be struck out if they had appeared in the original pleading.[1] In particular, it is submitted on behalf of the defendant that:

(a) The imputations alleged in paragraphs 3(a), (b), (c) and (d) are not capable of arising;

6 Ms R Enbom, who appeared on behalf of the plaintiff, submitted that each of the imputations, alleged in paragraph 3, arise from the advertisement. She referred to the particular parts of the advertisement from which she submitted each of the five imputations may be derived.

7 Ms Enbom accepted that, standing alone, an allegation that a person is not fit to be elected the Mayor of Geelong, because that person lacks appropriate business or political leadership experience, would not be defamatory of a plaintiff. Thus, she conceded that if the plaintiff was (to use her homely expression) "a surfer living in a Kombi van in Byron Bay", then the meanings, alleged in the first four imputations, would not be defamatory of him. However, she submitted that each of those imputations are defamatory of the plaintiff, because they reflected on his reputation as a businessman.

8 Ms Enbom pointed out that, in the proposed further amended statement of claim, the plaintiff has pleaded that he was a businessman. Extensive particulars have been provided as to his activities as a businessman, namely, that he was a director and/or shareholder of eight companies, seven of which conducted different businesses in the Geelong area. The particulars state that, through those businesses, the plaintiff had employed 180 people in the Geelong area, and paid approximately $10 million annually to suppliers based in the City of Geelong. Ms Enbom submitted that, accordingly, the imputations, pleaded in paragraph 3 of the proposed further amended statement of claim, would reflect adversely on the reputation of the plaintiff as a person who conducted significant businesses in the Geelong area. In that way, she submitted that the imputations were capable of being defamatory of the plaintiff. In support of that submission, Ms Enbom referred to the following passage in the judgment of the plurality of the High Court in Radio 2UE Sydney Pty Ltd v Chesterton:[2]

The common law has for some time recognised that words may not only reflect adversely upon a person's private character, but may injure a person in his or her office, profession, business or trade. This may be so where the words reflect upon the person's fitness or ability to undertake what is necessary to that business, profession or trade. But in each case the injury spoken of is that to the person's reputation.

9 In particular, Ms Enbom submitted that the first two imputations - in paragraphs 3(a) and (b) of the proposed further amended statement of claim - each reflect on the plaintiff's capacity as a businessman, because they allege that he was a person who ignored big issues, and who did not have a plan to deal with them. She submitted that the imputations in subparagraphs (b), (c) and (d) are similarly defamatory of the plaintiff, because they reflect on his lack of appropriate business experience, leadership skills, and know-how.

10 Ms Enbom further submitted that there is a material distinction between the third imputation (pleaded in subparagraph (c)) and the fourth imputation (pleaded in subparagraph (d)). The third imputation relates solely to the plaintiff's business, council and political leadership experience, and it has an "added sting", because the plaintiff himself admitted to that lack of experience. On the other hand, the fourth imputation alleges that the plaintiff lacked general experience, together with leadership skills and know-how. Thus, Ms Enbom submitted that the imputations do not offend against the requirement that each imputation should allege a distinct meaning.

11 In response, Mr Hoyne, who appeared on behalf of the defendant, submitted, first, that the use of the word "fit" is vague and meaningless, in the context of the advertisement. The concept of fitness is capable of covering a range of conduct, attributes and qualities. There are no prescribed criteria qualifying a person to be fit for the position of the mayor of a municipality, or for any other position involving political leadership. Thus, Mr Hoyne submitted that the imputations are too vague and imprecise.

12 Mr Hoyne next submitted that the advertisement is not reasonably capable of giving rise to the first four imputations sought to be relied on by the plaintiff. In support of that submission, he drew attention to the manner in which the advertisement compared the experience and performance of Mr Jarvis with, on the other hand, the lack of appropriate experience of the plaintiff in business, council or political leadership. Mr Hoyne submitted that the advertisement compared the skills and experience of Mr Jarvis with the skills and experience of the other candidates for the Mayor of Geelong, and, in particular, the plaintiff. The advertisement made the point that it would take any other candidate - including the plaintiff - time to gain the necessary experience and know-how in order to be an effective Mayor.

13 Thus, Mr Hoyne submitted that the advertisement was not capable of inferring that the plaintiff was not fit to be the Mayor. Rather, he submitted, the advertisement meant that the plaintiff would need some time in office before he had developed the necessary skills and gained the appropriate experience equivalent to those of Ken Jarvis. Accordingly, Mr Hoyne submitted that the advertisement is not capable of giving rise to the first four imputations sought to be relied on by the plaintiff, a necessary component of which is the imputation that the plaintiff was not a fit person to be elected the Mayor of Geelong.

14 Mr Hoyne further submitted that a jury could not reasonably conclude that the advertisement, and the imputations sought to be relied upon by the plaintiff, were defamatory of the plaintiff. Mr Hoyne (correctly) accepted that it may be defamatory to say that a person is not qualified or fit to carry out a particular role which that person is then undertaking. However, he submitted that it is not defamatory of a person to state that that person would take time to develop the necessary skills and experience to carry out that role properly.

15 In addition, Mr Hoyne submitted that, in any event, it is not defamatory of a person to say that he lacks the necessary skills and experience to be the mayor of a large municipality. In particular, he submitted that such an imputation is not capable of impacting on a person's reputation as a business person, as the capacities required to conduct a business are, necessarily, of a very different nature to the skills and experience required to be fit to be mayor of a large municipality. Mr Hoyne submitted that there was a logical "disconnect" for the plaintiff to contend that, if the advertisement imputed that the plaintiff was not fit to be mayor, such an imputation reflected on his capacity as a businessman. In any event, Mr Hoyne submitted that the imputations, sought to be pleaded in the further amended statement of claim, relate solely to the plaintiff's fitness to be Mayor of the City of Geelong. They do not relate to his fitness or experience as a businessman. The plaintiff is now seeking to contend that the imputations, sought to be pleaded by him, are defamatory, not by dint of the imputations themselves, but, rather, by reason of an inference or a conclusion which may be drawn by some persons from those imputations.

16 Finally, Mr Hoyne submitted that the imputations, alleged in paragraphs 3(c) and 3(d) of the proposed further amended statement of claim, are not substantially different, and thus contravene the rule that distinct imputations should be pleaded, so that each imputation is substantially different from the other imputations relied on.[3]

17 The principles, which relate to the questions which I must determine, are not in dispute.

18 The questions, whether a publication bore the meanings pleaded by a plaintiff, and whether, in those meanings, the publication was defamatory of the plaintiff, are questions of fact, to be determined at trial by the tribunal of fact. In this case, the plaintiff has elected for his case to be heard by a jury. Thus, the question, whether the words published by the defendant bore the meanings which are sought to be pleaded by the plaintiff, and whether, in those meanings, the words were defamatory of the plaintiff, will be questions of fact for the jury.

19 The question, which I must determine, is different, namely, whether a jury, properly instructed as to the applicable principles of law, could reasonably conclude that an ordinary, reasonable reader of the advertisement would have understood the advertisement to bear the meanings which are sought to be pleaded by the plaintiff, and whether, in those meanings, the advertisement was defamatory of the plaintiff. Thus, the critical question is whether the article was reasonably capable of being understood, in the eyes of the ordinary, reasonable reader, to have borne the meanings which are sought to be pleaded by the plaintiff, and whether, in those meanings, it was reasonably capable of being considered, by a jury, to be defamatory of the plaintiff.[4]

20 The submissions made by Mr Hoyne, in support of the proposition that the advertisement was not reasonably capable of giving rise to any meaning defamatory of the plaintiff, if successful, would have the effect of depriving the plaintiff of the right to have his claim tried by a judge and jury. In those circumstances, I should only accede to that submission if it is particularly clear that a jury could not reasonably conclude that the advertisement, in the meanings sought to be alleged by the plaintiff, was defamatory of the plaintiff.[5]

21 The questions, whether a publication bore the meanings alleged by a plaintiff, and whether the publication, by those imputations, was defamatory of the plaintiff, are determined by reference to how the publication would have been understood by the ordinary, reasonable recipient of that publication. In Mooney v The Age Company Ltd,[6] I described that character in the following terms:[7]

The attributes ascribed by the law to the 'ordinary reasonable' reader (or listener) are well known, and are not in dispute. Such an hypothetical person is described as someone who is not 'avid for scandal', and who is neither 'unusually suspicious nor unusually naïve'. Equally, the hypothetical 'ordinary reasonable' reader has been described as an ordinary person, who does not live in an ivory tower, and who reads between the lines in light of his or her general knowledge and experience of worldly affairs. Thus the ordinary reasonable reader does engage in a degree of loose thinking. In this respect, it is important to bear in mind that the ordinary reasonable reader is a lay person, and not a lawyer, and such a person has a much greater capacity for implication than a lawyer. Similarly, the ordinary reasonable reader will 'read casually and not expecting a high degree of accuracy'. On the other hand, it is necessary to bear in mind the distinction between the reader's understanding of what the article is stating, and a judgment or conclusion, which the reader may reach as a result of his or her own beliefs and prejudices, after reading the article; the defamatory quality of the article is to be determined by the former, and not the latter, proposition.[8]

22 The question, whether a publication is defamatory of a plaintiff, was considered, in some detail, by the High Court in Radio 2UE Sydney Pty Ltd v Chesterton.[9] For present purposes, the relevant principles, stated by the plurality in that case, may be summarised as follows:

(1) The essence of the tort of defamation consists of the injury caused by the publication to the reputation of the plaintiff.[10]

(2) The essential question is whether the publication diminishes the esteem in which the plaintiff is held by the community in some relevant respect. Thus, the question is whether the publication tends to lower the reputation of the plaintiff in the estimation or ordinary, decent members of the community.[11]

(3) Such members of the community are persons who share the standards of the general community.[12]

(4) It is not sufficient, in order to be defamatory, that the publication damages the business, occupation or profession of the plaintiff. Rather, to be defamatory, it must injure the reputation of the plaintiff in the manner to which I have referred.[13]

(5) A publication may be defamatory of a person, if it is directed to the conduct or capabilities of that person in his or her office, occupation or profession, provided that the publication thereby injures the reputation of the plaintiff in the eyes of ordinary, decent members of the community.[14]

23 The submissions made by Ms Enbom raise questions concerning the function and role of the pleading of imputations in a proceeding for defamation. Basically, a publication may be defamatory of a plaintiff by conveying, in its ordinary and natural meaning, defamatory imputations about the plaintiff (referred to as "false imputations"), or because it bore particular meanings (or imputations) by reason of particular facts, extrinsic to the publication, which are known to persons who received the publication (referred to as "true imputations"). It is now established practice that, in a proceeding for defamation, the plaintiff must plead the imputations (whether false imputations or true imputations) which the plaintiff alleges the publication bore of and concerning him (or her). Thus, the plaintiff's statement of claim must specify the defamatory meanings, upon which the plaintiff intends to rely at the trial of the action.

24 In that way, the imputations, pleaded in a statement of claim, specify the defamatory meanings, which the plaintiff alleges the particular publication conveyed of and concerning the plaintiff. If the plaintiff wishes to allege that the publication bore particular meanings, which are defamatory of him, because of facts known to readers of the publication, but which were not generally in the public domain, then the plaintiff must plead those facts, and also plead (as true imputations) the meanings which the publication bore by reason of those particular facts.

25 Finally, as a matter of form, it is necessary that where a plaintiff relies on a number of imputations, each imputation should plead distinct meanings, in the sense that each meaning should be substantially different to the other meanings alleged by the plaintiff. The test for distinctiveness is "whether the evidence required to justify each meaning would be substantially different".[15]

26 It is helpful to commence my consideration of the imputations contained in the proposed further amended statement of claim with three preliminary observations. First, it is important to bear in mind that the advertisement, about which the plaintiff complains, was published in the course of a democratic election for the office of Mayor of the City of Geelong. The advertisement was part of the political debate which preceded that election, and it formed part of the usual cut and thrust of democratic discourse. It is, I consider, fair to observe that, in the context of modern political debate, the contents of the advertisement were relatively mild, insofar as they sought to reflect on the plaintiff's candidature for the office of Mayor of the City of Geelong.

27 Secondly, as Mr Hoyne pointed out, the thrust of the advertisement consisted of a comparison of the attributes of Ken Jarvis, with the attributes of his competitors, and, in particular, the plaintiff, as candidates for the office of Mayor of Geelong. In particular, the advertisement compared the readiness of Jarvis for office, with the readiness of the plaintiff (and indeed the other competitors). Thus, in the second paragraph, it stated that Mr Jarvis was the only candidate with the energy, skills and know-how "to hit the ground running". Similarly, in the sixth paragraph, the advertisement implied that if the plaintiff were elected, he would be a "rookie mayor" who would need to learn "the ropes".

28 Neither of those two points are determinative of the issues which I must decide. However, they explain why the plaintiff has so far had some difficulty in crafting defamatory imputations, which he alleges are derived from the advertisement. In that respect, I note that the proposed further amended statement of claim constitutes the third attempt by the plaintiff to plead imputations, which he alleges were conveyed by the advertisement.

29 The third preliminary observation, which I make, is reflective of those difficulties. In order to attempt to meet the deficiencies of the first two attempts to plead imputations, the plaintiff has proposed imputations which focus on his "fitness" to be elected the Mayor of Geelong. However, in the context of the advertisement, the imputation that the plaintiff was "not a fit person to be elected the Mayor of Geelong", which is pleaded in subparagraphs (a) to (d) of paragraph 3 of the proposed pleading, is somewhat ephemeral. It is one thing to plead an imputation that a person is not fit for that person's chosen occupation, profession or trade. Ordinarily, there are certain defined attributes, which are readily understood as rendering a person fit (or, the absence of them, unfit) to practise such a profession, occupation or trade. On the other hand, the attributes necessary for a person to be "fit" for the office of mayor of a large regional city (or indeed leader of any government) are less well defined. Political leaders are drawn from many different walks of life. Thus, to suggest that the candidate for office lacked the necessary experience or know-how to perform that office, leaves open the question as to whether that person is "fit" to be the mayor of a city.

30 It is for that reason that there is some attraction in the submission by Mr Hoyne that the first four imputations are not properly pleaded, because the allegation, that the plaintiff was "not a fit person" to be the Mayor of Geelong, is too vague and ambiguous. However, on reflection, I do not consider that that consideration, of itself, is sufficient to preclude the plaintiff from pleading the first four imputations in that way. In the broader sense, the imputation, that the plaintiff was "not a fit person" to be elected the Mayor of Geelong, relates to the plaintiff's suitability for election to that position. While it is broad in connotation, nonetheless it is connected to the concept of fitness for the office to which the plaintiff aspired, and thus is not too vague for the purposes of complying with the rules of pleading.

31 On the other hand, I do not consider that a jury could reasonably conclude that the advertisement conveyed either of the first two imputations, sought to be pleaded in subparagraphs (a) and (b) of paragraph 3 of the proposed further amended statement of claim. The allegation in the advertisement, that the plaintiff had no plan or explanation as to how he intended to implement his policies, and the allegation in the advertisement, that the plaintiff had no plan to tackle the potential jobs crisis in Geelong, each said nothing about the plaintiff's character, capabilities, or fitness for the office of mayor. Rather, they reflected, solely, on the plaintiff's political platform or agenda. The advertisement did not allege that the plaintiff did not have the capability to formulate any such plan. Rather, as I stated, the advertisement alleged that the plaintiff had not formulated any such plan. For those reasons, I do not consider that a jury, properly instructed, could reasonably conclude that the advertisement conveyed either of the two meanings contained in subparagraph (a) and subparagraph (b) of paragraph 3 of the proposed further amended statement of claim.

32 The question, whether the advertisement was reasonably capable of conveying the third and fourth imputations, contained in subparagraphs (c) and (d) of paragraph 3, is not as clear-cut. As I have stated, fundamentally the advertisement compared the attributes of Mr Ken Jarvis, on the one hand, with those of his competitors for office, and, in particular, the plaintiff, on the other hand. Nevertheless, it is, I consider, arguable that the advertisement, in that way, thereby implied that the plaintiff was not fit to be elected the Mayor of Geelong, because of his lack of relevant experience, leadership skills and know-how. In reaching that conclusion, I am mindful that a jury is much better placed, than a judge, to determine whether such imputations were conveyed by the advertisement in its ordinary and natural meaning, taking into account the particular characteristics of the "ordinary reasonable reader" of the advertisement.

33 On the other hand, the question, whether the imputations, sought to be pleaded by the plaintiff, were defamatory of the plaintiff, is more problematic. As I have noted, Ms Enbom, in the course of her submissions, did not seek to contend that the imputations, standing alone, were defamatory of the plaintiff. Rather, she submitted that those imputations were defamatory of the plaintiff, because they reflected on his reputation as a businessman. In making that submission, she accepted that, in the absence of knowledge by a reader of the advertisement of the plaintiff's business background, it would not be defamatory to say of him that he was not fit to be elected the Mayor of Geelong, because he lacked the necessary experience or know-how to perform the duties of that office.

34 That concession by Ms Enbom highlights the principal difficulty, which affects the imputations, upon which the plaintiff now seeks to rely. In effect, the plaintiff does not rely on what the advertisement itself conveys, that is, on the imputations which the plaintiff claims are derived from the advertisement. Rather, the plaintiff complains of the effect of those imputations on his business reputation. It is that distinction which pinpoints the difficulty which is to be found in the imputations now sought to be relied on by the plaintiff. In order to be defamatory, the publication must convey meanings (imputations) which themselves are defamatory of the plaintiff, either as true or false imputations.[16] It is not sufficient, for a publication to be defamatory, that the meanings (imputations), conveyed by that publication, might give rise to a conclusion or inference drawn by the reader of the advertisement, which is detrimental to the plaintiff's reputation.

35 That principle was made clear by the High Court in Mirror Newspapers Ltd v Harrison.[17] In that case, the defendant published a newspaper article alleging that the plaintiff had been arrested in connection with the assault of a member of Parliament. The plaintiff pleaded that the article bore the imputation that he was involved in the assault of that member of Parliament, and that he was guilty of the criminal offence in connection with that assault. The High Court unanimously held that the article was not capable of bearing those imputations. Mason J (with whom Gibbs CJ, Wilson and Brennan JJ agreed) stated the relevant principles as follows:

In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. It's importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.[18]

36 In the present case, the plaintiff does not seek to plead, as imputations, any meaning specifically directed to his capabilities to conduct the businesses which he operates. Rather, each of the imputations are directed to the plaintiff's capacity to fulfil the office of Mayor of Geelong. It is for that reason that Ms Enbom contended that the defamatory sting of the imputations lies, not in their meanings per se, but in the effect those imputations had on the plaintiff's business reputation. In that way, Ms Enbom relied, not on the imputations themselves, but on a conclusion or inference drawn by the reader from those imputations.

37 In support of her submissions, Ms Enbom relied on the decision of the High Court in Radio 2UE Sydney Pty Ltd v Chesterton,[19] and, in particular, the passage from the judgment of the plurality to which I have already referred.[20] In Chesterton's case, the defendant had published a radio broadcast, in which its commentator had made colourful remarks about the plaintiff in his capacity as a columnist in a daily newspaper. The significance of the decision of the High Court was its statement of the principle that, in order to be defamatory, a publication need not reflect on the personal characteristics of a plaintiff, but that it is sufficient for the publication to reflect adversely upon a person's fitness or capacity for his or her business, profession or trade. However, the point made by the High Court does not resolve the difficulty faced by the plaintiff. At present, the imputations sought to be pleaded by the plaintiff are not meanings which specifically reflect on the plaintiff's fitness or capacity to conduct his businesses. Rather, the meanings, pleaded by the plaintiff, all focus on his capacity or fitness for the Office of Mayor of Geelong.

38 The difficulty, confronting the plaintiff, is particularly highlighted by the first two imputations, sought to be pleaded in subparagraphs (a) and (b) of paragraph 3 of the proposed amended statement of claim. If, contrary to what I have concluded, those imputations could be derived from the advertisement, they say nothing about the plaintiff's background, experience or business capabilities. Rather, as I have stated, they reflect, solely, on the plaintiff's political platform or agenda. They relate to the fact that (as alleged by the defendant) the plaintiff had no plan or explanation as to how he intended to implement his policies, and that he had ignored the potential job crisis in Geelong and had no plan to tackle it.

39 The third imputation, pleaded in subparagraph (c) of paragraph 3 of the proposed amendment, suffers from a similar vice. It is directed solely to the plaintiff's fitness to be elected the Mayor of Geelong. In particular, the third imputation concerns the plaintiff's lack of "relevant" business, council or political leadership or experience, by reason of which (so the imputation states) the plaintiff was not a fit person to be elected the Mayor of Geelong. In that way, the third imputation is, again, directed solely to the plaintiff's fitness to be elected the Mayor of Geelong, rather than plead a meaning that reflects on the plaintiff's attributes or capacity in the businesses conducted by him.

40 The fourth and fifth imputations, contained in subparagraphs (d) and (e) of paragraph 3 of the proposed amendment, are also expressly directed to the plaintiff's fitness to be elected to the office of Mayor of Geelong, or, (in the case of the fifth imputation) his capacity to successfully lead the City of Geelong. However, they do state that the plaintiff was "so lacking in experience leadership skills and knowhow", that he was not a fit person to be elected the Mayor of Geelong, and that, if he were elected, the city would stagnate and its reputation would suffer damage. Thus, while the two imputations are directed to the plaintiff's fitness to be elected the Mayor of Geelong, nevertheless they allege that unfitness, because of the plaintiff's general lack of experience, leadership skills and know-how. In that way, while the matter is borderline, I consider that those two imputations are sufficiently directed to the plaintiff's business skills, rather than being solely confined to the plaintiff's fitness for the office of Mayor of Geelong, that a jury could reasonably conclude that those two imputations were defamatory of the plaintiff in his business reputation.

41 Certainly, the matter would be more clear-cut, if the fourth and fifth imputations had been drawn in a manner which more directly related to the plaintiff's business reputation. However, in an application of this nature, it is important not to adopt an overly technical or critical approach to meanings which are pleaded, or sought to be pleaded, by a plaintiff. For those reasons, I am, albeit with some hesitation, persuaded that the imputations, contained in subparagraph (d) and (e) of paragraph 3 of the proposed amendment, are capable of being defamatory of the plaintiff in the manner outlined by Ms Enbom.

42 For those reasons, I have reached the following conclusions:

(a) Subparagraphs (a) and (b) of paragraph 3 of the proposed further amended statement of claim do not plead imputations, that are reasonably capable of being derived from the advertisement complained of by the plaintiff.

(b) Further, the meanings, pleaded in subparagraphs (a), (b) and (c) of paragraph 3 of the proposed further amended statement of claim, are not reasonably capable of being defamatory of the plaintiff.

(c) Accordingly, I shall grant leave to the plaintiff to file and serve a further amended statement of claim in the form of the pleading exhibited to the affidavit of Mr Frank Vinci sworn 27 November 2014, but with subparagraphs (a), (b) and (c) of paragraph 3 deleted from that document.

[1] Horton v Jones (No 2) [1939] NSWStRp 35; (1939) 39 SR (NSW) 305, 310 (Jordan CJ); Commonwealth v Verwayen (1998) 170 CLR 394, 456 (Dawson J).

[3] Franchise Central (Australia) Pty Ltd v Fairfax Media Publications Pty Ltd [2011] VSC 379, [23] (Beach J).

[4] Jones v Skelton [1964] NSWR 485, 491 (PC); Favell & Anor v Queensland Newspapers Pty Ltd & Anor [2005] HCA 52; (2005) 221 ALR 186, 189-90 [9].

[5] Cf General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 129-30 (Barwick CJ); Murphy v Australian Consolidated Press Ltd [1968] 3 NSWR 200, 202 (Wallace A-CJ); Waters v Western Australian Newspapers Ltd [2004] VSC 124, [29]-[30] (Gillard J).

[8] See also Farquhar v Bottom [1980] 2 NSWLR 380, 385-6 (Hunt J); Gant v The Age Company Ltd [2011] VSC 169, [38]-[39] (Beach J).

[13] Ibid 468-9 [11]-[12]; Dawson Bloodstock Agency Pty Ltd & Ors v Mirror Newspapers Ltd [1979] 1 NSWLR 16, 18 (Begg J).

[14] Ibid 476 [33]. See also John Fairfax & Sons Ltd & Anor v Punch [1980] FCA 100; (1980) 31 ALR 624, 629 (Blackburn and Northrop JJ).

[15] Gant v The Age Company Ltd & Ors [2011] VSC 169, [40] (Beach J); Franchise Central (Australia) Pty Ltd & Ors v Fairfax Media Publications Pty Ltd & Anor [2011] VSC 379, [23] (Beach J).

[16] Cf Lewis v Daily Telegraph Ltd [1964] AC 234, 258, 260 (Lord Reid), 264 (Lord Morris), 271 (Lord Hodson), 277-8 (Lord Devlin); Jones v Skelton [1963] 1 WLR 1362, 1370-1.

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Cases Cited (6)