Plaintiff v Defendants

Supreme Court of Victoria|2013-08-02|Before: BEACH J

DEFAMATION - Pleading - Whether material published capable of giving rise to imputations pleaded by plaintiff - Whether imputations are bad in form - Application by defendants for summary judgment - Whether material published capable of being defamatory - Defence of justification - Whether plaintiff's claim has no real prospect of success - Civil Procedure Act 2010, s 63.

2 The Australian Broadcasting Corporation, the first defendant, is sued as the broadcaster of the program. The second defendant, Craig Reucassel, is sued because the program is alleged to contain "vision and words spoken by the second defendant". The third and fourth defendants are sued as the executive producers of the program. Additionally, the defendants are sued in respect of a republication of the program on the internet from a date on or around 21 March 2013.

3 In paragraph 6 of his statement of claim, the plaintiff pleads that in its natural and ordinary meaning the program meant, and was understood to mean:

(a) the plaintiff performed clinical tests on a product of Swisse Vitamins Pty Ltd (Swisse), with an ingredient known as Slimaluna (scil. Slimaluma), and then manipulated the published results for the commercial benefit of Swisse;

(b) the plaintiff performed clinical tests on Swisse products and then manipulated the published results for the commercial benefit of Swisse;

(c) the plaintiff performed clinical tests on a product with the Slimaluma ingredient and there were reasonable grounds to suspect that he manipulated the published results for the commercial benefit of Swisse;

(d) the plaintiff performed clinical tests on Swisse products and there were reasonable grounds to suspect that he manipulated the published results for the commercial benefit of Swisse;

(e) the plaintiff performed clinical tests on a product with the Slimaluna ingredient, in a manner that was not independent;

(f) the plaintiff performed clinical tests on Swisse products in a manner that was not independent;

(g) the plaintiff performed clinical tests on a product with the Slimaluna ingredient, in an untrustworthy manner;

(h) the plaintiff performed clinical tests on Swisse products in an untrustworthy manner;

(i) there was a stench about the plaintiff's performance of clinical tests of Swisse products, and accordingly the results could not be trusted;

4 By a summons filed 15 July 2013, the defendants seek summary judgment against the plaintiff; alternatively, the defendants seek orders that each of the plaintiff's imputations be struck out. The defendants submit that each of the imputations should be struck out, as each of them is incapable of arising from the program and/or is bad in form. The defendants then submit that they should have summary judgment because "it would be futile to permit [the plaintiff] to re-plead, in circumstances where each fact stated in the program that is capable of being understood as referring to [the plaintiff] is demonstrably true". Accordingly, it is submitted, "there is no real prospect of any tenable imputation being crafted that would not give rise to an unassailable defence".[2]

5 The program is a part of the first episode of The Checkout. It is titled "Complementary Medicines" and runs for approximately nine minutes. The program is a fast-moving, slick production that jumps from scene to scene interweaving various themes concerning complementary medicines, weight loss products and the Therapeutic Goods Administration. At no point in the program is the plaintiff's name spoken. However, his name appears on the screen on three occasions for approximately a second, then two seconds, then four seconds, about seven minutes into the program.

Voiceover: Craig Reucassel to the chemist aisle please.

Craig Reucassel: Tonight, we're checking out complementary medicines, things like vitamins and supplements, but first apparently I've got to get you emotionally engaged with a real person's story. So tonight we follow one man's quest to find a natural weight loss pill that really works. This is his story.

7 There is then a segment involving a person called Craig (played by Mr Reucassel) who is apparently trying to lose weight. During the course of this segment, reference is made to a "new all-natural product" that "claims it can help you to suppress your appetite". The key ingredient in Reducta (which one might infer is the new product) is said to be "carallumba fimbriata, which is an extract from an Indian cactus". It is then said that traditionally, "people took it in times of famine to stop them from feeling hungry". Craig is then shown as saying "Yeah, those Indian famine victims, they're pretty thin, so I think it'll work".

8 Another voiceover says, "It contains Slimaluma, naturally derived from the cactus plant and used for centuries in India". Craig is then shown saying, "Slimaluma, sounds slimming and looming, I'll give it a try ...". A thinner Craig is then shown six months later being interviewed by a reporter. There is the following exchange:

Reporter: So it worked for you?

Craig: No no, that was all garbage.

Reporter: So how did you lose weight?

Craig: I realised I was wearing a fat suit. I just took it off. [The second defendant then steps away from the reporter and addresses the camera]. But the case of carallumba fimbriata and Reducta and Slimaluma highlights everything that's wrong with the regulation of natural medicines in Australia.

Australians spend over $1.2 billion a year on these non-prescription vitamins, herbal remedies and natural medicines. They all have to be listed with Australia's Therapeutic Goods Administration, the TGA. But what does that really mean?

The good news is, to be listed with the TGA, you can only use ingredients that are deemed low risk, so they're not likely to cause an overdose. [At this time there is film of a body being covered with a sheet and then film of an overturned bottle labelled "Blackmore's Cold and Flu Relief Echinacea Forte" - and some spilled white tablets].

The question is not really whether vitamins and natural remedies are going to harm you, it's whether they're gonna do anything at all. That's where the TGA comes in. To make a claim about a product the TGA requires you to [and then an actor is shown saying the words "certify that you hold the evidence to support each indication made relating to that medicine"].

The key word there is "hold". You don't actually have to show them the evidence coz they're not gonna read it before they list the medicine, you just gotta promise to them, that you've got it somewhere.

10 There is then a scene between a teacher and a student (child) where the teacher asks the student whether he has evidence for a particular formula.[3] The child says, "It's at home", and the teacher says, "Good enough for me, A plus". Then follows an assertion that in 2010 the TGA found that 90% of products were non-compliant. This statement is then followed by another scene between the teacher and the child where the child has been caught out about his formula, and the teacher says "But I trusted you".[4] Then the following scene is played:

Craig Reucassel: So in Australia, edible Indian cactus in pill form, whether Reducta or Slimaluma, went on sale because Fatblaster and Swisse signed some forms to say that it worked based on some evidence that was unlikely to be reviewed.

Actor: Soooo?

Craig Reucassel: Well, here's the main study here. [Up onto the screen at this time flashes a copy of a study headed "Effect of Carallumba Fibriata Extract on Appetite, Food Intake and Anthropometry in Adult Indian Men and Women", the authors of whom are shown to be Rebecca Kuriyan, Tony Raj, SK Srinivas, Mario Vaz, R Rajendran and Anura V Kurpad].

11 The second defendant then notes that one of the testers in the study displayed on the screen is from Gencor Pacific Group, USA. He then says they know a lot about Slimaluma because they have the worldwide patent for it. There is then vision of the report being thrown into a waste paper basket, with an actor saying "Phew, I almost read that". The program goes on:

Craig Reucassel: Now over in Europe, their food safety regulators are a little bit weird, so they actually review the evidence. Yeah, I know, they read it.

Actor (now with a contrived German accent): There was no evidence to support Slimaluma's weight loss claims.

12 The program goes on to refer to a Dr Ken Harvey from Latrobe University. He is said to be a person who usually complains to the TGA that "the studies are dodgy". It is then asserted that "Ken was right, the studies don't support the claims being made". Additionally, it is said that a complaints resolution panel "found it was wrong to claim the product reduced snacking, reduced portion sizes, or helped consumers eat less". There then follows a segment of the program dealing with two reasons why the products are still on sale. These are referred to as "massive loophole one and even more massive loophole number two".

13 During the course of describing what was said to be more massive loophole number two, the second defendant says: "Now you may be thinking this is just about dodgy weight loss products but the stench goes all the way to the top, to the former leader of this country, Ricky Ponting". There then follows a segment of a Swisse television ad featuring Mr Ponting saying, "You can be confident Swisse Men's Ultivites work, because they've had them independently tested". Mr Reucassel immediately follows up with: "And you know when Ricky says independently tested he means that the tests were partly paid for by Swisse". At this point, an article headed, "The Effect of Multivitamins Supplementation on Mood and Stress in Healthy Older Men" flashes onto the screen. Under the title of this article, seven authors are shown, one of whom is the plaintiff. A segment of page four of this article is then cut and pasted across the front page of the article. The segment reads:

FUNDING ACKNOWLEDGMENTS

Swisse Vitamins Pty Ltd provided the multivitamin and placebo tablets as well as partial funding for this project, but played no role in the study design, conduct of trial, analysis and interpretation of data, or writing of this report.

14 Mr Reucassel is then shown saying, "And that two of the testers worked at an institute funded by Swisse". Then follows another extract of page four of the study:

CONFLICT OF INTEREST

The National Institute of Integrative Medicine of which Professor Avni Sali is the current director receives financial support from Swisse Vitamins Pty Ltd.

15 The program goes on with Mr Reucassel saying, "And that one of those testers, just happens to be the father of the CEO of Swisse". At the same time this is said, there is a picture of a Sunday Telegraph article headed "Swisse Secret: Clinical trial academic is Chief Executive's father, Avni Sali". The program goes on:

Craig Reucassel: Which doesn't necessarily mean the tests were worthless, although it was conducted on a very small number of older men something that's not often mentioned in Ricky's advert: but hey, it's not like they're claiming it's one of the only multivitamins with proven results. [This then cuts to a Ricky Ponting Swisse TV ad showing Ricky Ponting saying, "One of the only multivitamins in Australia with proven results", followed by Mr Reucassel grimacing].

16 The program then concludes with Mr Reucassel saying, amongst other things:

The system is a joke and they don't enforce their joke of a system. That must infuriate the people that pay for it. [It is then asserted that the TGA is funded 100% by the industry].

Well if you can't beat 'em, join 'em. I know something that's low potency and ineffective. Maybe I can sell that.

17 I turn now to consider the various complaints made by the defendants in respect of the imputations pleaded by the plaintiff. Before doing so, it is necessary to set out some relevant principles.

18 The principles for determining whether or not a matter complained of is capable of conveying particular imputations were summarised by Hunt J in Farquhar v Bottom.[5] His Honour said:[6]

In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v Skelton ([1063] SR (NSW) 644). I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence: Slatyer v Daily Telegraph Newspaper Co Ltd ((1908) [1908] HCA 22; 6 CLR 1 at 7); who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland ((1910) 2 Ir R 577 at 586); nor avid for scandal: Lewis v Daily Telegraph Ltd ([1964] AC 234 at 260).

This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (supra at 258); Jones v Skelton (supra at 650); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412). It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer: Lewis v Daily Telegraph Ltd (supra at 277); Morgan v Odhams Press Ltd ([1971] 2 All ER 1156 at 1163); Lang v Australian Consolidated Press Ltd ([1970] 2 NSWR 408 at 412); Middle East Airlines Airliban SAL v Sungravure Pty Ltd ([1974] 1 NSWLR 323 at 34).

19 In Soultonov v The Age Company Limited & Another,[7] Kaye J described the hypothetical ordinary reasonable reader in the following terms:[8]

The issue which I must determine on the defendants' summons is a question of law, namely, whether the article was reasonably capable of conveying the imputation, pleaded by the plaintiff, to the ordinary reasonable reader. 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 the light of his or her general knowledge and experience of worldly affairs. Such a reader is described by the law as someone who is not "avid for scandal" and who is neither "unusually suspicious nor unusually naïve". He (or she) does engage in a degree of loose thinking, and is understood to read between the lines. In particular, it is important to take into account that the ordinary reasonable reader is a lay person, and not a lawyer, and that his or her capacity for implication is much greater than that of a lawyer. On the other hand, as observed by Mason J in Mirror Newspapers Limited v Harrison, it is necessary to draw a distinction between the reader's understanding of what the article is actually saying, and a judgment or conclusion which the reader may reach as a result of his or her own beliefs and prejudices after reading the particular matter in question.[9]

20 Many authorities have dealt with the rules relating to the pleading of imputations. Whilst whether an imputation has been properly pleaded is to be determined as a matter of practical justice, the following propositions emerge from the authorities:

(a) First, distinct meanings should be pleaded - and the test for distinctiveness is whether the evidence required to justify each meaning would be substantially different.

(b) Secondly, distinct meanings should be distinctly pleaded - because of the potential for a rolled up plea to cause confusion.

(c) Thirdly, an imputation must express the precise act or condition asserted of or attributed to the plaintiff or of which the plaintiff is charged.

(d) Fourthly, an imputation should represent the final distillation of the alleged defamatory meaning.[10]

21 The principals to be applied when determining whether an imputation has been properly pleaded were discussed by Kaye J in Trkulja v Google Inc Llc & Anor.[11] His Honour said:[12]

First, the question, whether an imputation has been properly pleaded, is to be determined as a matter of practical justice, rather than as an exercise of close semantic or linguistic refinement. Secondly, the question whether a particular imputation is sufficiently specific depends, essentially, on the context in which it is pleaded. In some publications, the allegation about a plaintiff may be so unspecific as to give rise only to the most general imputation. For example, a billboard alleging that a particular plaintiff is "corrupt" may, in an appropriate case, only give rise to an imputation pleaded in the most general form. On the other hand, and by contrast, a publication may, by its context, give rise to one or more possible meanings of a particular condition attributed to the plaintiff. In such a case, where the plaintiff pleads that the publication imputed that condition to him, the plaintiff is obliged to specify how and in what respects that condition is conveyed in the imputation.

Those two propositions can be derived from the leading judgment of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation. In that case, the primary judge had struck out three imputations in a statement of claim, which alleged "corrupt" conduct or acts of the plaintiff council. The Court of Appeal (by majority) upheld that decision. In doing so, Gleeson CJ stated the principle as follows:

"The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says is made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. ... Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. ... If a defendant has posted in a public place a sign that simply says 'X is disgusting', the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter".[13]

22 It is of course to be remembered that the words in this case are in "transient form" (as referred to and described in some of the authorities). That is, they are not contained in some article which might be read, or pored over, at leisure. As was said by Hunt CJ at CL[14] in Amalgamated Television Services Pty Ltd v Marsden:[15]

Whereas the reader of the written document has the opportunity to consider or to reread the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity ... . Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant program, he or she may not have devoted the same degree of concentration ... to each part of the program as would otherwise have been given to the written article ... and may have missed the significance of the existence, earlier in the program, of a qualification of a statement made later in the published material ... .

The trial judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document case ... . I should add that, in distinguishing between the written and the electronic media, and in referring to the transient form of the latter, I have been referring to what is the fact: that publication when broadcast or telecast by the electronic media are necessarily transient or ephemeral in nature, notwithstanding provisions such as s 124 of the Broadcasting Act 1942 (Cth) and its successor, s 206 of the Broadcasting Services Act 1992 (Cth) which deem there to be 'publication in a permanent form'. Such statutory provisions enact a fictional situation solely in order to make defamatory statements so published libel rather than slander (and thus avoid the need for proof of special damage) ... .[16]

The application to strike out the plaintiff's imputations

23 The defendants submit that all of the plaintiff's imputations should be struck out as incapable of arising from the program. Alternatively, they submit that each imputation is bad in form and infringes the principles to which I have just referred.

24 The defendants' complaints may be summarised as follows. First, it is submitted that imputations (a), (c), (e) and (g) are incapable of arising because there is nothing in the program that is capable of linking the plaintiff with the performance of tests on Slimaluma. The first reference for the plaintiff occurs after the conclusion of the Slimaluma section of the program. Further, the program states that the tests on Slimaluma were conducted in India. The defendants submit that the first reference to the plaintiff comes in connection with tests on Ultivite. The defendants then submit that if any viewers understood the Slimaluma section of the program to be of and concerning the plaintiff, "they could only have done so as a result of jumping to the conclusion that because [the plaintiff] was named in connection with tests on Ultivite, he must also have been involved in the tests on Slimaluma". Such a conclusion, it is submitted, could only be arrived at by a process of reasoning which ignores the content of the program.

25 Secondly, it is submitted that imputations (b), (d), (f), (h) and (i) fall for the same reason. In each of those imputations, the plaintiff refers to "products" plural - whereas the defendants submit that insofar as the program concerns the plaintiff, it only concerns the testing of Ultivite.

26 Thirdly, complaint is made about imputations (e), (f), (g) and (h) insofar as they contain references to the plaintiff performing testing "in a manner that was not independent" or "in an untrustworthy manner". The defendants submit that nothing in the program touches in any way on any testing that might have been performed by the plaintiff. A similar complaint is made in respect of imputation (i). In terms, in relation to imputation (i), the defendants submit:

Imputation (i) is not capable of arising out of any of the words or vision used in the program. Rather, it is in the nature of a conclusion that could only have been arrived at by the viewer who had applied some bias or prejudice, or was avid for scandal or unduly suspicious.[17]

27 Fourthly, complaint is made about the form of each of the imputations. Amongst the defendants' complaints in this regard is a complaint that the words "then manipulated the published results" is ambiguous. The defendants submit:

First, by the words 'then manipulated the published results', the imputations imply that the Program means that, after the results of tests had been published, Sali misrepresented (or there are reasonable grounds to suspect that he misrepresented) the results of the tests. If that is what is intended, it is plainly untenable. There is nothing in the Program capable of giving rise to such meanings.

Perhaps, however, the pleader intended to plead meanings to the effect that Sali had manipulated (or there are reasonable grounds to suspect that he manipulated) the results of tests, prior to the publication of the results. If that is what was intended, the imputations as presently pleaded are embarrassing. In any event, however, there is nothing in the Program capable of suggesting such a meaning either.

In short, if any viewers of the Program understood it to convey that Sali had manipulated test results - either before or after they were published - they could only have arrived at that conclusion by the application of some bias or prejudice, by a process of drawing inferences on inferences, or by being unduly suspicious or avid for scandal.

Secondly, there is nothing in the Program to suggest that the motive of Sali in manipulating published test results was 'for the commercial benefit of Swisse'. Such a conclusion, again, could only be conveyed to a person who jumped to a conclusion by drawing inferences on inferences having regard to some bias or prejudice, or by a person who was unduly suspicious, or avid for scandal.

Thirdly, imputation (a) is comprehended within imputation (b), and imputation (c) is comprehended within imputation (d). It follows that the imputations are duplicative, and that imputations (b) and (d) are pleaded at too high a level of generality and so are not the final distillation of a defamatory meaning.[18]

28 Finally, in respect of imputations (e), (f), (g), (h) and (i), the defendants submit that none of these imputations are the final distillation of a defamatory meaning expressing the precise act or condition said to have been attributed to the plaintiff by the program.

29 The plaintiff resists the defendants' strike out application, contending that each of the imputations is capable of arising - and that none of them are bad in form. The plaintiff points to the authorities that note that the ordinary, reasonable viewer engages in a degree of loose thinking, is understood to read between the lines, and is a lay person with a capacity for implication greater than that of a lawyer. Further, the plaintiff submits, consistently with authority, that whether an imputation has been properly pleaded is to be determined as a matter of practical justice, rather than as an exercise of close semantic or linguistic refinement. Additionally, the plaintiff relies upon the fact that the broadcast was in transient form, and that the Court should therefore more readily leave to the jury the question of whether an imputation arises in this case, than it would in a case involving a written document.

30 In my view, there is force in a number of the defendants' submissions. I accept that the plaintiff's meanings that link the plaintiff with Slimaluma are not open. However, while a close watching of the program shows the plaintiff only to be specifically linked to the product, Ultivite, I do not accept that it is not open to the plaintiff to plead meanings referring to Swisse products in the plural. Remembering that this is a program in transient form, in my view, a reasonable viewer of the program may well have formed the view that references to the plaintiff related to a Swisse product or Swisse products - "Swisse products" being a term that might be satisfied by reference only to Ultivite or Ultivite products.

31 That said, in my view, the real complaint in this case about imputations (a) to (d) is the plaintiff's references in these imputations to manipulating the published results (or there being reasonable grounds to suspect manipulation by the plaintiff of the published results). However, nothing in the program talks of the manipulation of results of tests (published or otherwise). Similarly, nothing in the program talks to the manner or way in which clinical testing was performed (see imputations (e) to (i)).

32 The imputations dealing with manipulation, or reasonable grounds to suspect manipulation, of published results (imputations (a) to (d)) are of the inference upon inference kind described in Amalgamated Television Services Pty Ltd v Marsden.[19] Imputations which are inferences upon inferences of the kind described in that decision are unreasonable and not open in accordance with conventional analysis. Put another way, to borrow from the language of Hunt J in Farquhar v Bottom[20] and the authorities referred to therein, these imputations are strained, or forced, or unreasonable. The same may be said in respect of the imputations that make complaint that the program defames the plaintiff as to the manner in which clinical testing was performed. In reality, the program says nothing about the way any clinical tests were or might have been performed - notwithstanding some of the colourful props used during the course of the program. For these reasons, each of the plaintiff's imputations is impermissible.

33 Further, I should say for the sake of completeness that, in any event, there is substance in the defendants' complaint as to insufficient distinctiveness in relation to each of the four pairs of imputations ((a)(b), (c)(d), (e)(f), and (g)(h)). Additionally, there is also force in the defendants' complaints about imputations (e) to (i) failing to be the final distillation of a defamatory meaning attributing a discreditable act or condition to the plaintiff.

34 It follows that each of the plaintiff's imputations must be struck out.

The defendants' application for summary judgment

35 The defendants' argument in support of their application for summary judgment is founded upon a submission that each factual assertion made in the Ultivite section of the program that is capable of referring to the plaintiff is demonstrably true. Specifically, the defendants submit that the following facts about the plaintiff are true:

(a) The tests performed on Ultivite were partly paid for by Swisse (see the paragraph headed "Funding Acknowledgments" in the paper "The Effect of Multivitamins Supplementation on Mood and Stress in Healthy Older Men" co-authored by the plaintiff ("the paper") and referred to in the program.

(b) The plaintiff works at the National Institute of Integrative Medicine (see note 4 on page one of the paper).

(c) The National Institute of Integrative Medicine receives financial support from Swisse (see the paragraph under the heading "Conflict of Interest" in the paper).

(d) The plaintiff is the father of the CEO of Swisse.

(e) The tests on Ultivite were conducted on 50 men aged between 50 and 69 years (see the material in the paper under the headings "Methods" and "Participants").

If Sali were given leave to replead, the task for the creative pleader would be to attempt to craft an imputation that is capable of arising but could not be met by an obvious defence, in circumstances where the Program accurately stated each matter that is capable of being understood as referring to Sali. Any such imputation would, self-evidently, have to be a false innuendo.

The ABC parties submit that any innuendo that a creative pleader might come up with that was defamatory of Sali, but not capable of being met by a defence in reliance on the facts that are truly stated in the Program would, necessarily, be one that was strained, forced, or unreasonable and that would, accordingly, not be allowed. It is submitted that, in those circumstances, the Court is able to conclude now that Sali stands no real prospect of success.[21]

37 I disagree. In my view, it would be open to a jury to conclude that the program was defamatory of the plaintiff. Further, I am not persuaded that there do not exist meanings which it would be open to the plaintiff to plead and for which proof of the matters referred to by the defendants would not constitute a complete defence. For example, at one level it might be open to a jury to conclude that the program was defamatory of the plaintiff in asserting that the plaintiff, as an author or publisher of a scientific study that makes claims about the efficacy of certain products, which claims cannot be justified on any scientific basis (or by reference to any evidence-based testing), is (or was) incompetent or dishonest. In my view, an imputation encompassing some or all of these elements (depending on its form) has not been shown to be incapable of arising. Further, such an imputation would, as a matter of law, be capable of being held to be defamatory by a jury.[22] Additionally, such an imputation would (at least arguably) not be capable of being justified by proof of the facts referred to by the defendants in their submissions.

38 At another level, it is not entirely correct for the defendants to say that the references to the plaintiff in the program are confined to Ultivite. In the course of discussing "massive loophole number two", Mr Reucassel says:

Now you may be thinking this is just about dodgy weight loss products but the stench goes all the way to the top, to the former leader of this country, Ricky Ponting.

39 The program quickly changes to Ricky Ponting saying that Ultivite has been independently tested (without saying what Ultivite is) - before Mr Reucassel goes on to say that the tests were partly paid for by Swisse; two of the testers work in an institute funded by Swisse; and one of those testers is the father of the CEO of Swisse - shown on the vision in the program to be Professor Sali, the plaintiff.

40 The defendant has not persuaded me that it is not open to the plaintiff to craft an imputation (and specifically by, and with reference to, this part of the program) that the program means that the plaintiff has purported to provide independent scientific support for the efficacy of ineffective and worthless weight loss products when he was in truth not independent because of funding or a family arrangement between himself and the CEO of the product's promoter. At this point, it should be noted that the paper[23] does not relate to the efficacy of weight loss products ("dodgy" or otherwise).

41 Recently, in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[24] the Court of Appeal considered the test for summary judgment under s 63 of the Civil Procedure Act 2010. Warren CJ and Nettle JA said:

the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;
the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;

it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action **(**and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[25]

42 For the reasons given above, I am not satisfied that the plaintiff's prospects of success in this case can only be described as fanciful. In my view, the plaintiff's case is not without real prospects of success - albeit that he now requires leave to re-plead paragraph six of his statement of claim. This proceeding is at an early stage. The statement of claim was the plaintiff's first attempt to plead valid imputations. In the circumstances, I am of the opinion that the plaintiff should have leave to re-plead paragraph six of his statement of claim.

43 There will be an order striking out paragraphs (a) to (i) of paragraph six of the plaintiff's statement of claim. The defendants' application for summary judgment will be dismissed. I will hear the parties on the appropriate form of order and any question of costs.

[1] For example, the plaintiff pleads that in 2004 he was the recipient of the Australian Humanitarian Award for Contributions to Health, and from 2008 to 2010 he was the President of the Australasian Integrative Medicine Association.

[2] See paragraphs 1.3 and 1.4 of the defendants' outline of submissions dated 26 July 2013.

[4] During this scene, the teacher waves a copy of Pat Benatar's album "Live from Earth" (from which the single "Love is a battlefield was released") at the student.

[10] See generally, Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519, 543; Lewis v Daily Telegraph Limited [1964] AC 234, 282; Taylor v Jecks (1993) 10 WAR 309, 321; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 137; Sungravura Pty Ltd v Middle East Airlines Airliban S.A.L. [1975] HCA 6; (1975) 134 CLR 1, 13-14; Vitale v Bednall [2001] WASC 278, [8] and Lim v TVW Enterprises Limited [2002] WASC 214, [43]-]57]. See also Gant v The Age & Ors [2011] VSC 169 [40].

[12] Ibid at paragraphs [19] and [20].

[14] With whom Mason P and Handley JA agreed.

[16] But see now s 7 of the Defamation Act 2005 which has abolished the distinction between slander and libel.

[17] See paragraph 3.12 of the outline of submissions on behalf of the defendants dated 26 July 2013.

[18] See paragraphs 3.14 to 3.18 of the outline of submissions on behalf of the defendants dated 26 July 2013.

[21] See paragraphs 4.4 and 4.5 of the outline of submissions on behalf of the defendants dated 26 July 2013.

[22] See generally, Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, 466-7 [3]-[8] (French CJ, Gummow, Kiefel and Bell JJ).

[23] "The Effect of Multivitamins Supplementation on Mood and Stress in Healthy Older Men", co-authored by the plaintiff.

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Judgment (94 paragraphs)

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