Purcell & Anor v Cruising Yacht Club of Australia P/L & Ors - [2003] NSWSC 245 - NSWSC 2003 case summary — Zoe

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Purcell & Anor v Cruising Yacht Club of Australia P/L & Ors

[2003] NSWSC 245

Supreme Court of NSW|2003-04-08|Before: Australia P, Kirby J, Aust P

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Court

Supreme Court of NSW

Decision date

2003-04-08

Before

Australia P, Kirby J, Aust P

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Original judgment source is linked above.

Judgment (18 paragraphs)

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CITATION : Purcell & Anor v Cruising Yacht Club of Australia P/L & Ors [2003] NSWSC 245 HEARING DATE(S) : 21/03/03 25/03/03 JUDGMENT DATE : 8 April 2003

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JURISDICTION: Common Law Division Defamation List JUDGMENT OF : Kirby J DECISION : Plaintiffs' application dismissed with costs.

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CATCHWORDS : Defamation - defence of contextual truth - form of contextual imputations - capacity - whether differ in substance from plaintiffs' imputation - whether capable of satisfying s16(2)(c) - causing additional harm to plaintiffs' reputation - determining that issue by reference to particulars of truth rather than contextual imputation LEGISLATION CITED : Defamation Act 1974 Purcell & Anor v Cruising Yacht Club of Aust P/L & Ors [2002] NSWSC 557 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 Singleton v John Fairfax & Sons Limited (unreported, NSWSC, 20.2.80) CASES CITED : Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Jackson v John Fairfax & Sons Limited [1981] 1 NSWLR 36 John Fairfax Publications Pty Limited v Blake (2001) 53 NSWLR 541 Saint v John Fairfax Publications Pty Limited [2002] NSWSC 312 Hepburn v TCN Channel Nine Pty Ltd (1984) 1 NSWLR 386 Allen v John Fairfax & Sons Limited (unreported, NSWSC, 2.12.88) Richard Gordon Purcell (1 Pl/1 Appl) Allure Marketing Pty Limited (2 Pl/2 Appl) PARTIES : Cruising Yacht Club of Australia Pty Limited (1 Def/1 Resp) Johanne Christian Hugo Van Kretschmar (2 Def/2 Resp) Peter Bush (3 Def/3 Resp) FILE NUMBER(S) : SC 20473/01 COUNSEL : P W Gray (Pls/Appls) T D Blackburn (Defs/Resps) SOLICITORS : Berne, Murray & Tout (Pls/Appls) Corrs Chambers Westgarth (Defs/Resps)

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The Matter Complained Of 2 The plaintiffs' Amended Statement of Claim included a transcript of the press conference (the matter complained of). The conference began with these words: (lines 1-8) " Peter Bush : The Committee investigated a report from the Sword of Orion that a yacht failed to respond to distress signals. The Committee has passed full details of this incident on to the New South Wales Coroner and the Commodore of the Cruising Yacht Club for further investigation. One yacht, Business Post Naiad , did not meet eligibility requirements. The CYCA has referred this matter to the New South Wales State Coroner. And finally, the manner of death of the six sailors that lost their lives will be determined by the New South Wales State Coroner in a Coronial inquest on a date to be announced. I'd now like to move ah, to talk about the recommendations." 3 There followed a summary of the recommendations made by the Committee. Many of the recommendations were technical, using acronyms which may not have been intelligible to those who were not yachtsmen. 4 Mr Bush, having completed his summary, the Commodore said this: (lines 67-69) " Commodore : Thanks Peter. The CYC stands behind this report as a frank and honest objective practical analysis of those areas where problems occurred and what can be sensibly done to minimise the risk of reoccurrence." 5 He added: (lines 75-78) "There are two issues that remain open-ended at this stage. They are the Business Post Naiad's stability non-compliance issue and the Sword of Orion/Margaret Rintoul issue. Both matters, as Peter has mentioned, have been brought to the attention of the Coroner." 6 A short time later, the Commodore said this: (lines 82-85) "The Sword of Orion/Margaret Rintoul incident has been referred to the Sydney to Hobart Yacht Race Protest Committee for investigation under Rule 69 of the Racing Rules of Sailing. We believe this to be the most responsible course of action available to the CYC." 7 The Commodore then spoke about certain recommendations made in the report, adding these words: (lines 104-106) "Our report deliberately does not seek to attribute blame to any party. The CYCA does not believe that it is ... its role to attribute blame nor that it is productive to do so." 8 Thereafter, the Commodore spoke of the extreme weather conditions: (lines 116-122) "What then went wrong? Quite simply in my view part of the fleet sailed into unexpectedly extreme conditions. The most extreme conditions were very localised. Some yachts encountered those conditions while still heading to Hobart; others encountered them after having turned back. Many yachts encountered significantly less extreme conditions than others, and either completed or retired from the race without incident. Some sailed through the most extreme conditions, had fate on their side, and completed or retired from the race without incident. Others were not so fortunate." 9 The Commodore added: (lines 132-133) "... the experiences of 1998 will be recalled forever by all future competitors as a stark reminder of the unpredictable and awesome force of the sea." 10 Questions followed. Most were directed to the issue of whether the Margaret Rintoul II had failed to render assistance to the Sword of Orion. The transcript is in these terms: (lines 149-239) " Question : Just another matter that has been referred to the Coroner. You speak about Rule 69 and the Rules of Racing and the Sword of Orion . Can you just outline what that Rule is that may have possibly been breached? Peter Bush : I might refer that to the Coron ... Commodore, if I may? Commodore : Rule 69 of the Racing Rules deals with an area called Gross Misconduct under the Racing Rules. It is historically the rule that has been used in the administration of our sport for resolving, among other things, allegations of not rendering assistance to yachts that are in distress. Question : Can you put that in a context of the culture of yacht racing? What is it within that, the obligation to render assistance? Commodore : The rules of yacht racing and maritime law are quite specific in terms of the obligations to render whatever assistance they can safely provide to a yacht that is in distress. Not dissimilar at all to not stopping after a car accident. Question : So essentially we are talking about an allegation of ignoring a Mayday call? Commodore : Um, no, I don't think that's actually correct. Question : Can you tell us what the allegation is? Commodore : Um not even sure whether it's an allegation as such. There is a report or there are reports that have been received through interviews with um both Sword of Orion and Margaret Rintoul , that indicate that at some stage Sword of Orion sighted a yacht that passed fairly close by. That they let off various signalling flares to try and attract their attention. Our understanding is that at that stage they were not in radio communication. They were not sure whether the other boat had actually seen their flares or not. Conditions were atrocious. Visibility was very poor and the Margaret Rintoul did not stop or acknowledge that those signals had been seen. Question : So for this matter to have gone this far, you must have quite substantial evidence that may perhaps a wrongdoing has happened? Commodore : There is sufficient evidence there for us to refer it to the Protest Committee to consider under that rule and determine more fully whether there is in fact a basis to the evidence or not. Question : Hugo if the owner of Margaret Rintoul II is found guilty of gross misconduct, what might be the consequences? Commodore : Again I believe that is up to the under the rules of racing, it is up to the Protest Committee to assign a penalty with respect to that. Historically, where similar situations have been found by Protest Committees, it has led to a ban from competing in yachting events for a period of time. Question : It is a criminal offence? Commodore : Don't know the answer to that. Question : Could it potentially be that in light of the Coroner's Inquiry? Commodore : Don't know the answer to that. [Numerous inaudible voices.] Question : The Protest Committee which will hear this protest - when is it going to happen? Commodore : The Protest Committee, it was initially referred to the Protest Committee that was in place for the Sydney-Hobart race, part of that Protest Committee comprised internationally accredited jurors from overseas who have indicated that they were unavailable to attend, so the Protest Committee now comprises some of the original members of the Protest Committee and others, but all the members of the Protest Committee presently are international jurors (accredited) by the AYF. Question : Can you put it in the context of the conditions that the two boats were in at the time? One was, I understand that one was coming back and the other was still going forward. But the weather conditions as well. Commodore : Sword of Orion at the time had lost its mast and sometime earlier, a crew member over the side and was essentially disabled. The other yacht was still sailing and headed in the direction of Hobart. Qustion : And the weather conditions at that particular time? Commodore : At the peak of the storm. Atrocious. Question: So would it have been safe and would it have been advisable to go round at a time like that to try and get close to a boat that was in distress? Commodore : I would be speculating in terms of what the conditions were on Margaret Rintoul or the other boat as to whether that was an option that was available or in fact a safe or prudent option that was available to them. [Numerous inaudible voices. There was a subsequent question from Bob Ross on when the protest be heard then?] Commodore : I believe the protest has been set down for Wednesday 8 June. Next Wednesday. Question : Has Margaret Rintoul been given an opportunity of putting a defence? Commodore : That is the purpose of the Protest Committee, to give both parties the opportunity to present evidence formally before the Protest Committee. Question : Has Margaret Rintoul made a statement so far? (inaudible) Commodore : They were involved in an interview with members of the Race Committee. Yes. Question : And what have they said about their actions on the day? Commodore : I don't believe it's appropriate for me to comment on that, in an offhand manner, without seeing the actual documentation as to what was said. Question : The Owner of Margaret Rintoul II has admitted that he did speak at length with officials after the event when he got to Hobart. Did he speak to you? And did he confirm to anyone that he did see the yacht, and did he explain why he may not have turned back? Commodore : Yes to some of the questions, no to others. Yes, he did speak to me briefly at one stage in Hobart. He had mentioned that there was some agitation with respect to the issue and had asked me to endeavour to mediate with respect to it. Which I did, and I put the two parties in contact with each other, and I believe that at that stage they resolved to let the matter take their proper course. Question : Did he admit to you that he did see the yacht, and did he explain to you why they didn't turn back? Commodore : No, I didn't have the discussion with him at that time. Question : If there is a ban, is that only in Australian waters, or also in international waters? Commodore : I believe that the International Sailing Federation has the power to make that an internationally imposed ban. Question : Has that been the case historically? Commodore : I don't know the answer to that." 11 The plaintiff in an Amended Statement of Claim relied upon one imputation, expressed in these words: "7(a) Having interviewed the First Plaintiff about his failure to stop when the crew of a disabled yacht let off flares to attract his attention, the committee investigating the 1998 Sydney to Hobart Yacht Race suspected on reasonable grounds that the First Plaintiff was guilty of gross misconduct in that he failed to stop and render assistance to the crew of that yacht." 12 In October 2001, there was a s7A trial before Levine J and a jury. The jury found that the plaintiffs' imputation was conveyed and was defamatory.

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The Defence of Contextual Truth 13 The defendants filed their Defence. They did not seek to justify the plaintiffs' imputation. Rather, the Amended Defence asserted the following contextual imputations: "11(a) there were reasonable grounds to suspect that the First Plaintiff was guilty of gross misconduct in that he failed to stop and render assistance to the crew of a disabled yacht in the course of the 1998 Sydney to Hobart Yacht Race. 11(b) in the light of an interview with the First Plaintiff and other relevant matters, there were reasonable grounds for suspecting that the First Plaintiff was guilty of gross misconduct in that he failed to stop and render assistance to the crew of a disabled yacht in the course of the 1998 Sydney to Hobart Yacht Race." 14 The plaintiffs moved to strike out both imputations. Levine J (Purcell & Anor v Cruising Yacht Club of Australia Pty Ltd & Ors [2002] NSWSC 557) determined that both should be struck out. He said this: (para 10) "I am not persuaded that either of these two meanings is good in form. Nor am I persuaded that either or both is or are reasonably capable of being carried by the matter complained of at the same time and in addition to the found imputation. If they are capable of being carried at all they are so carried in subtraction from the imputation pleaded by the plaintiff and found by the jury." 15 The defendants sought leave to appeal in respect of the first contextual imputation (para 11(a)). The leave application came before Handley and Hodgson JJA on 2 December 2002. I have been provided with a copy of the transcript of argument before the Court of Appeal. Leave to appeal was refused. The Court held that the contextual imputation (11(a)) was incapable of arising. It was too wide. Handley JA, on behalf of the Court, said this: "The problem lies in its generality. In our view the material complained of is not capable of conveying an imputation that reasonable grounds for suspicion existed outside the material before the committee." 16 On 23 December 2002, the defendants filed a Further Amended Defence. It pleaded contextual truth, relying upon the following contextual imputation: "11(a) there were reasonable grounds to suspect, on the basis of the material before the committee investigating the 1998 Sydney to Hobart Race , that the First Plaintiff was guilty of gross misconduct in that he failed to stop and render assistance to the crew of a disabled yacht in the course of that race." 17 The contextual imputation now put forward differs from the imputation which was struck out (11(a)) only in the addition of the words underlined.

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The Issue of Form 20 Levine J, in the context of the earlier formulation by the defendants, said this: (para 9) "The defect in form arises in relation to (a) and (b) by the failure to identify who or what it was that had the reasonable grounds or what is said to provide the basis of suspicion." 21 The plaintiffs complain that the formulation in the Further Amended Statement of Defence does not address these problems. The defendants explained that their present formulation partly reflects the argument before the Court of Appeal on the leave application, and can be justified, in any event, by reference to principle. On the leave application, their Honours (or at least Handley JA) suggested it may not be necessary to name those who entertained the suspicion. 22 However, these remarks, in the course of argument, were not the basis upon which leave was declined. Exchanges with Counsel in the course of argument are, of course, an uncertain basis for the determination of the likely outcome, when an issue is put to the test. 23 In terms of principle, the defendants suggested that it was not always necessary to identify who had the suspicion. In Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669, the plaintiff asserted that he had been defamed by a television programme concerning the disappearance of the anti-drugs campaigner, Donald Mackay. The plaintiff relied upon the following imputations which were disallowed by Hunt J: (at 674) "(f) The plaintiff had been accused of being responsible for the disappearance and murder of Donald Mackay. (g) The plaintiff had been accused of being connected with a murderous, secret society mastermining an extensive drug network from Griffith." 24 On appeal, Glass JA said this: (at 679) "The imputations in (f) and (g) ... have been so framed as to relinquish any attempt to prove that the accusers had reasonable grounds for their accusation or that the plaintiff's conduct was such as to warrant the accusations made." 25 His Honour added: (at 679) "... imputations (f) and (g) suffer from the defect that they fail to identify the person making the accusation. This is not merely a matter for particulars since the source may be such as to render the imputation incapable of disparaging the plaintiff in the eyes of ordinary folk. Without identification of the source the capacity of the imputation to defame cannot be judged." 26 Hutley JA agreed. He said this: (at 671) "However, where the passive voice is used in connection with accusations, it is necessary to specify the accuser. An accusation from certain quarters may be a compliment, or at least carry no reflection upon the reputation of the accused. The cases in which the defamatory import of accusations have arisen are all where the accusation was by legitimate authorities. Thus, in Lewis v Daily Telegraph Ltd [1964] AC 234, the defamatory meaning was that the plaintiffs were suspected by the police (see at 239). In Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408, the defamatory meaning was alleged to arise out of an actual criminal trial; in Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16, the alleged defamation arose out of a criminal charge; in Mirror Newspapers Ltd v Harrison (1982) 56 ALJR 808; 42 ALR 487, the defamatory material was in the report of a police investigation, arrest and expected charge. It would seem to me that the identification of the persons making the accusation is not a mere matter for particulars; for a report of making an accusation to be capable of defamatory meaning, it must identify the accusation coming from some authority whose status can make it stick without more." 27 Priestley JA dealt with the same issue, making these comments: (at 680) "Imputations (f) and (g) have however been deliberately framed to make it clear that they do not include any element to add to the allegation of accusation; that is, the imputations are content to rest upon the allegation of accusation alone without any statement or implication of reasonable grounds for the accusation or of the plaintiff's conduct being such as to warrant accusation. The absence of any allegation of the identity of the accuser leaves the imputations in the position that they may just as well have been made by a completely irresponsible person as by a responsible one. I would not disturb his Honour's conclusion in regard to them." 28 A plaintiff, in framing an imputation, or a defendant in framing a contextual imputation, may, according to the defendants, formulate the imputation in one of two ways. Either the suspicion must be attributed to an authority figure, such as the police, or the imputation (as here) must be framed in terms of "reasonable grounds to suspect", or the plaintiff having acted in such a way as to warrant suspicion. To say that the police "suspect" a person of murder is defamatory. It is also defamatory to say that there are reasonable grounds for suspecting that person committed murder. 29 I accept the defendants' argument. That, however, is not the end of the matter. The issue must ultimately be determined by reference to the words published. In the context of those words, is the defendants' contextual imputation conveyed? In that context, is there a need to identify the person who held the suspicion? It is suggested that different issues arise, depending upon the level of detail provided by the publication. If the publication, to use the defendants' example, simply makes a bold allegation that there are reasonable grounds for suspecting a particular person of murder, then the imputation (without identifying the person who had the suspicion) would be carried. If, however, the publication provided an explanation for the suspicion, and it plainly depended upon matters of expertise, then the position, it was suggested, may be different. The message to the ordinary reasonable listener, in those circumstances, would be that there were reasonable grounds in the minds of experts to suspect that a particular person had committed the crime of murder. 30 Here, the publication, according to the plaintiffs, did not simply say that the Cruising Yacht Club had sufficient evidence of gross misconduct on the part of Margaret Rintoul II, in not going to the aid of the Sword of Orion, when dismasted, to refer the issue to the Protest Committee. Rather, a description was provided of the extreme nature of the conditions. The storm was at its peak. Conditions were atrocious. The race was "a stark reminder of the unpredictable and awesome force of the sea". A journalist was prompted to ask the following question, which was then answered by the Commodore, which, for convenience, I repeat: (lines 204-208) " Question : So would it have been safe and would it have been advisable to go round at a time like that to try and get close to a boat that was in distress? Commodore : I would be speculating in terms of what the conditions were on Margaret Rintoul or the other boat as to whether that was an option that was available or in fact a safe or prudent option that was available to them." 31 The ordinary reasonable listener is assumed to be an intelligent and fair minded person. He or she is assumed to be capable of a certain amount of loose thinking. However, the test for capacity is undemanding. Although many listeners may recognise that the suspicion of misconduct depended upon the views of experts, others may not. On balance, I believe that the imputation is not defective in form. It does not require an identification of those who held the reasonable suspicion.

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The Issue of Capacity 32 The plaintiffs raise a further objection. The defendants' contextual imputation, in their submission, is not capable of arising. The publication made it clear that the attack was by the investigating Committee. It was not an attack by anyone else. There can be no foundation for the defendants' contextual imputation which presupposes a general attack. The plaintiffs point to what was said by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135: (at 137) "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 was 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." 33 The Chief Justice made it clear that the manner in which the defendant had expressed the defamatory publication was relevant to a determination of the requirement for specificity. The test to be applied is whether the formulation chosen by the plaintiff (in the case of an imputation), or by the defendant (in the case of a contextual imputation), is likely to be a source of confusion. Gleeson CJ (at 138) agreed with the following formulation of that test by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155: "… The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends." 34 Here, the plaintiff argues that the press conference was quite specific. It spoke of the evidence assembled by the investigating committee and the sufficiency of that evidence. The plaintiffs had taken up the specific matters conveyed by the matter complained of and incorporated them into their imputation. 35 The defendants responded that it is perfectly permissible for a plaintiff (or a defendant) to plead general or specific imputations (or contextual imputations), or both, arising out of the same material (Hunt J, Singleton v John Fairfax & Sons Limited (unreported, NSWSC, 20.2.80)). The defendants ask: What if the plaintiffs had formulated their imputation in the terms now relied upon by the defendants in the contextual imputation? Would it have been held incapable of arising? They suggest that it would not. It is not to the point, on their argument, that more specific imputations might also have been conveyed. 36 Again, I think the defendants' submission is right. Huntley JA, in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, said this (in the context of Supreme Court Rules Pt 67 r11(3), which requires that imputations should differ in substance): (at 688) "In my opinion, this rule should not be construed so as to exclude the framing of imputations which in part overlap, provided there are differences in substance. The imputation that a person is an abortionist is, in my opinion, substantially different from the imputation that he is an illegal abortionist." 37 However, assuming that a contextual imputation is carried, its expression (and especially its generality) may lead to confusion (such that it may be struck out under Pt 15 r26(1)(b) as tending to cause prejudice, embarrassment or delay) (cf Priestley JA in Drummoyne Municipal Council (supra) at 154). Here, the plaintiffs, in written submissions, referred to the judgment of Levine J where he found the previous contextual imputation defective in form for two reasons, namely, they did not identify: (i) who had the reasonable grounds to suspect; or (ii) what is said to provide the basis for such suspicion. 38 In that context, the plaintiffs' written submissions said this about the contextual imputation in the Further Amended Defence: "16. As to form, the problem with the defendants' new formulation therefore is still that, whereas the matter complained of (as well as the first plaintiff's imputation) does give weight to each of the two factors referred to in 13 above (as the jury found), the new contextual imputation FAD 11(a) avoids doing so. It posits a meaning for the matter complained of which is at a level of abstraction which is both conceptually difficult to pinpoint (and thus embarrassing and prejudicial to the first plaintiff) and far removed from the directness of what was actually published. In those respects the new contextual imputation 11(a) is bad in form. In this regard see the observations of Gleeson cJ in Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 at 137B-F." 39 I believe, however, that the imputation, in its expression, is sufficiently clear and is not likely to lead to confusion. 40 Finally, the plaintiffs point to the need for the defendants' contextual imputation to be conveyed at the same time "and in addition to" the plaintiffs' imputation (Jackson v John Fairfax & Sons Limited [1981] 1 NSWLR 36, per Hunt J at 40). Here, according to the plaintiffs, the defendants' contextual imputation has less punch, a lesser sting, than the plaintiffs' imputation. They then say this: "If that lesser meaning were capable of being caried at all (which must be very doubtful given the blunt terms of the matter complained of), it would be so carried in subtraction from (not in addition to) the first plaintiff's imputation: see his Honour's judgment para 10.) (emphasis in original) 41 However, that is to read the analysis by Hunt J too literally. In John Fairfax Publications Pty Limited v Blake ((2001) 53 NSWLR 541), Hodgson JA explained the requirement that the contextual imputation arises additionally from the publication. He said this: (at 557) "In my opinion also, it is capable of arising additionally from the publication: the word 'additionally' in that test does not mean that the imputation must not be something already included in the plaintiff's imputations, merely that it must also be capable of being conveyed by the publication." 42 I will, however, return to the plaintiffs' submission when considering whether the defendants' contextual imputation is capable of satisfying the requirements of s16(2)(c) of the Act.

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Does the Contextual Imputation Differ in Substance? 43 In Singleton v John Fairfax & Sons Limited (supra), Hunt J said this: (p 7) "The question is whether the general allegation is different in substance from the particular. In most cases, in my opinion, it would be." 44 Hunt J suggested a test to determine whether one imputation differs in substance from another. The question should be asked: What would the defendant need to prove in order to justify the imputation? If the same evidence would establish the truth of both imputations, they may not differ in substance. If different evidence would be required to justify each, they may differ in substance. 45 The test, whilst useful, is not an infallible guide (cf Saint v John Fairfax Publications Pty Limited [2002] NSWSC 312 at paras 11-12). A party may plead different gradations of seriousness in separate imputations so that the jury may select the way in which the matter would have been understood by the ordinary reasonable reader (Hunt J, Hepburn v TCN Channel Nine Pty Ltd (1984) 1 NSWLR 386 at 398). The same evidence may prove the truth of each imputation, and yet they may differ in substance. 46 The test is more reliable where different evidence is required to justify each imputation. The defendants say that that is this case. Justifying the plaintiffs' imputation would require evidence concerning the views of Committee members. Justifying the defendants' contextual imputation would not. 47 There is plainly a significant overlap between the plaintiffs' imputation and the contextual imputation of the defendants; although there are also differences: · First, the plaintiffs' imputation identifies who had the suspicion, namely, the Committee investigating the 1998 Sydney to Hobart Yacht Race, whereas the defendants' contextual imputation does not. · Second, the plaintiffs' imputation identifies the material considered by the Committee in forming its view, namely, the interview with the first plaintiff (the Captain). It is perhaps implicit that it took account of other material uncovered by the investigation. The contextual imputation, on the other hand, is general, namely, the material before the Committee investigating the 1998 Sydney to Hobart Race. · Third, both imputations suggest that the suspicion has, as its foundation, objectively reasonable grounds. · Fourth, the matter suspected in each case is expressed in the same terms, namely, "that the first plaintiff was guilty of gross misconduct in that he failed to stop and render assistance to the crew of a disabled yacht". 48 I believe that the defendants' contextual imputation does differ in substance from the plaintiffs' imputation. The plaintiffs' imputation is dealing with the belief of the Investigating Committee. The defendants' contextual imputation has no such point of reference.

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Does the Plaintiffs' Imputation Cause the Plaintiffs Additional Harm? 49 The plaintiffs submitted that there is no rational basis upon which a judge, determining the issue of contextual truth, could reach the view that the defendants were able to satisfy the requirements of s16(2)(c): that is, that the substantial truth of the defendants' contextual imputation so affected the plaintiffs' reputation that the plaintiffs' imputation did not further injure that reputation. The plaintiffs said this: "20. The matter complained of plainly conveys, as noted above in para 13, that a responsible and authoritative body (the investigating committee) actually did suspect the first plaintiff of gross misconduct, and that it did so in specific circumstances (including having taken the important and telling step of interviewing the first plaintiff). The new contextual imputation 11(a) is another attempt by the defendants to back-track from the actual meaning, as found, of what they published, so as to arrive at a shrunken suggestion that there were merely grounds for suspicion, in the abstract, by unidentified persons, in circumstances unspecified save for the generalised reference to 'the material before the committee'." 50 They added: "22. In other words, this watered down imputation is not rationally capable of satisfying the requirements of s16(2)(c) of the defamation Act 1974 (NSW). The matter complained of, as the jury found, actually conveys a much stronger, more direct, more precise, less abstract and more damning meaning, namely the first plaintiff's imputation 7(a)." 51 The defendants described this as a bold submission. They argued, on the contrary, that the contextual imputation made a more grave charge against the plaintiffs. They said this: "15. The plaintiffs' imputation is that the committee had the suspicion on reasonable grounds. The defendants' imputation is that reasonable grounds existed for the suspicion. It is arguable that the contextual imputation is more defamatory than the plaintiffs'. The defendants' imputation unequivocally posits objectively reasonable grounds for the suspicion concerned. The plaintiffs' imputation merely attributes the suspicion to the committee. While it may be acknowledged, on a capacity basis, that a suspicion of the investigating committee might be a serious matter, the fact that there were objectively reasonable grounds for those suspicions is itself a charge that is, arguable, equally or more serious. There is no basis whatever in taking that issue from the trier of fact." 52 I will return to these submissions shortly. I should simply note that it is not accurate to say that "the plaintiffs' imputation merely attributes the suspicion to the committee". The plaintiffs' imputation also posits objectively reasonable grounds for that suspicion. 53 The issue, to my mind, ultimately turns upon the test to be applied. The parties differed in their formulation of that test, reflecting differences in the Court of Appeal in John Fairfax Publications Pty Limited v Blake (supra). I will return to that case shortly. Before I do so, however, it is instructive to examine the terms of the section, and the commentary upon that section before Blake. 54 Section 16 of the Act deals with the defence of contextual truth. It is in these terms: " 16 Truth: contextual imputations (1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff." 55 Hunt J analysed the section in Jackson v John Fairfax & Sons Ltd (supra) (38ff). He identified five issues arising from such a defence, including the issue under s16(2)(c), which he formulated in these words: (at 40) "(3) Is the nature of the contextual imputation such that its substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's reputation that the imputation of which the plaintiff complains did not further injure that reputation?" 56 The issue was again considered by Hunt J in Allen v John Fairfax & Sons Limited (unreported, NSWSC, 2.12.88). The plaintiff was the former Deputy Commissioner of Police. The Sydney Morning Herald Published an article which, according to the plaintiff, gave rise to the following imputation: "The plaintiff as a senior police officer was derelict in his duties in attending an illegal casino." 57 The defendants pleaded contextual truth. They relied upon the following imputations which, they asserted, were conveyed at the same time and in addition to the plaintiff's imputation: "(a) The plaintiff was derelict in his duties as a senior police officer;

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(b) The plaintiff as a senior police officer brought discredit upon the Police Force of New South Wales." 58 Commenting upon the defence of contextual truth, Hunt J said this: (at 4) "The defence of contextual truth afforded by s16 accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence is available to the cause of action based upon that imputation. It asserts that the imputations pleaded by the defendant (the contextual imputations) are also conveyed by the matter complained of and that, even though the plaintiff's imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant's contextual imputations upon the plaintiff's reputation that the publication of the imputation of which he complains did not further injure his reputation (in the sense that it did not cause additional injury to that reputation)." 59 It was a matter of weighing, or measuring, one imputation against another. His Honour said this: (at 4) "Unless both parties' imputations are conveyed at the same time to the same ordinary reasonable reader, the jury will be unable to weigh or to measure the relative worth or value of the imputation or imputations for which each party contends, as the section requires. I do not need to repeat the discussion of those particular propositions in the cases cited." 60 In John Fairfax Publications Pty Limited v Blake (supra), the plaintiff sued in respect of an article in a magazine accompanying the Sun Herald and the Sunday Age. The imputations relied upon by the plaintiff included: "(a) the plaintiff was convicted of the offence of causing actual bodily harm to a twelve year old boy;" 61 The defendants sought leave to amend their defence to plead contextual truth, suggesting that the matter complained of gave rise to contextual imputations which included: "(A) The plaintiff assaulted a 23-year-old boy by the use of an electrical device;" 62 The defence was obliged by Pt 67 r18(1)(c) to provide particulars of the facts, matters and circumstances on which the defendant relied to establish that the contextual imputation was true, or substantially true. The particulars accompanying the defence alleged that the plaintiff had physically detained a twelve year old boy, awaiting the arrival of the police. It was said that he produced an electrical device capable of inflicting physical harm, which he then used to threaten the boy. 63 Levine J refused leave to amend the defence. The defendants appealed. The Court of Appeal (Spigelman CJ, Hodgson JA and Rolfe AJA) were unanimously of the view that the appeal should be dismissed, although for different reasons. The plaintiff complained that the word "assaulted" in contextual imputation (A) was impermissibly vague. It was capable of meaning a threat as well as physical contact (a battery). Hodgson JA, whilst not determining that the word was confusing (given its ambiguity), saw the potential for injustice unless it were clarified. He made the following comment, no doubt having in mind the weighing process described by Hunt J: (at 555) "In this case, the claimants plainly want to try to take advantage of the generality of the misconduct imputed by the words 'assaulted ... by use of an electrical device' for the purpose of assessing the damage to Mr Blake's reputation caused by that imputation, with which to compare the damage caused by the plaintiff's imputations; but to justify that contextual imputation by proving the truth of a mere threat." 64 Hodgson JA said that if all the defendants intended to prove, in establishing the substantial truth of the contextual imputation, was an assault by means of threatening to use an electrical device then, as a matter of fairness, the contextual imputation should be so expressed. His Honour said this: (at 556) "What I think is particularly objectionable is for a defendant to introduce as contextual imputations vague expressions different from those actually published, and then to seek to gain some advantage from that vagueness." 65 His Honour examined the meaning of s16(2)(c). He said this: (at 556) "This provision seems to require consideration of whether the reputation of the plaintiff is so injured by the contextual imputations that it is not further injured by the plaintiff's imputation; yet it does not say 'by reason of the extent to which the contextual imputations injured the plaintiff's reputation, the imputation complained of does not further injure that reputation'. Rather, it begins with the words 'by reason that the contextual imputations are matters of substantial truth', and this does not itself introduce into the section the requirement of substantial truth, because that is already required by s16(2)(b)(ii). What I think this means is that s16(2)(c) is requiring (or confirming what would in any event be required by overriding considerations of justice) that the contextual imputations must be specified in such a way as to ensure that the injury they would cause to the plaintiff's reputation, if in fact made by the publication, is no more than would be caused by a fair statement of the particular facts relied on as justifying the substantial truth of the contextual imputation." 66 What I understand his Honour to be saying is that one may have regard to the particulars of truth only for the purposes of examining whether the words used in the contextual imputations are appropriate. The contextual imputation must never (through generality or ambiguity) be allowed to rise above the particulars of truth which the defendants set out to prove. 67 Spigelman CJ (with whom Rolfe AJA agreed) took a different view. He said this: (at 543) "Mr Reynolds SC, who appeared for the claimants made submissions on the basis that the task to be performed under s16(2)(c) was, as he expressed it on one occasion, one of 'weighing imputation against imputation'. I do not agree. Section 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a 'matter of substantial truth'. It is 'by reason' of such 'substantial truth' that a defence to an imputation pleaded by a plaintiff can be made out on the basis that the plaintiff's imputation does not 'further injure the reputation of the plaintiff'. For purposes of determining whether the s16 defence is capable of being made out, the Court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself." 68 Hodgson JA responded to that construction with these words: (at 556-557) "In his judgment in this case, Spigelman CJ has taken the view that s16(2)(c) does not require 'weighing imputation against imputation': rather, the court must focus on the facts, matters and circumstances said to establish the truth of the contextual imputation itself. In my opinion, the use of the words 'further injure' in s16(2)(c) precludes this approach: the reputation of the plaintiff is not in fact injured at all by the facts, matters and circumstances in question, but only by the publication carrying the contextual imputation; so in my opinion it is a matter of weighing imputation against imputation. In my opinion, the true effect of the matters relied on by Spigelman CJ is as I have stated (at 556 [58] supra)." 69 His Honour added: (at 557) "I would add however that substantial justice is achieved by both approaches: in the case of my approach, by ensuring that the contextual imputation states the relevant facts, matters and circumstances fairly and precisely; and in the case of his approach, by weighing injury directly against the relevant facts, matters and circumstances themselves." 70 Commenting upon Hodgson JA's rejoinder, the Chief Justice said this: (at 543) "Hodgson JA emphasises the use of the words 'further injure' and notes that a person's reputation is injured by the publication of an imputation. I accept that s16(1) requires that, for an imputation to be contextual, it must be 'made by the same publication'. However, s16(2)(c) does not begin with words to the effect 'by reason of the publication of the contextual imputation' or 'by reason of the injury caused by the publication of the contextual imputation'. The drafter appears to have assumed that there was such injury and then directed attention to 'substantial truth' which, in my opinion, ought be taken into account in formulating the conclusion for which s16(2)(c) calls. The particulars of truth of contextual imputation A make it clear that the assault referred to in the imputation is constituted by a threat." 71 Here, the particulars of truth relied upon by the defendants are as follows: "(i) the race was conducted under the Racing Rules of Sailing ('RRS') published by the International Sailing Federation ('ISAF'); (ii) rule 1.1 of the RRS provides as follows: 'Helping those in danger

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A boat or competitor shall give all possible help to any person or vessel in danger' (iii) on 27 December, 1998, at a position about 40 miles south east of Gabo Island, off the NSW south coast, a yacht competing in the race, 'Sword of Orion', was severely disabled. It had been dismasted. It had earlier been rolled over. Its engine was inoperable. The vessel was sinking. One crewman had been lost overboard; (iv) the crew of 'Sword of Orion' sighted a yacht passing within about 200 metres and fired a distress flare. The other boat was clearly visible and was recognised by the crew of 'Sword of Orion' as the 'Margaret Rintoul II', the skipper of which was the First Plaintiff; (v) 'Margaret Rintoul II' continued on its course towards Hobart. It did not turn back or otherwise render assistance to 'Sword of Orion'; (vi) the First Plaintiff observed the dismasted yacht and the distress flare; (vii) approximately 35 minutes after the dismasted yacht and flare was sighted by the First Plaintiff, 'Margaret Rintoul II' made a radio report that it had sighted a distress flare. No report was received from 'Margaret Rintoul II' reporting the sighting of a dismasted yacht'; (viii) after a memorial service on New Year's Day at Constitution Dock, Hobart, the First Plaintiff said to the Second Defendant words to the effect that the crew of 'Sword of Orion' were making public accusations that the First Plaintiff had sailed past them whilst they were in distress and had done nothing to render assistance. The First Plaintiff emphatically denied to the Second Defendant that either he or this crew had seen a yacht in distress and demanded that the Second Defendant take action to prevent the crew of 'Sword of Orion' from repeating the accusations; (ix) in the course of the Coronial Investigation, the First Plaintiff gave, on 29 January, 1999, a statement to the Police wherein he admitted having seen a dismasted yacht and that he had seen a distress flare. He stated that he had flashed a torch in the direction of the dismasted yacht and had asked the radio operation on 'Margaret Rintoul II' to report the sighting to race control; (x) the crew of 'Sword of Orion', which included sailors of great experience, were of the view that the conditions, although very severe, were not such as to prevent the crew of 'Mararet Rintoul II' from rendering assistance to 'Sword of Orion'. The crew of 'Sword of Orion' expected that the crew of 'Margaret Rintoul II' would endeavour to establish some form of communication with them to ascertain what assistance, if any, was required or, at least, acknowledge the sighting by letting of a flare; (xi) the First Plaintiff did not attempt to contact 'Sword of Orion' by radio although 'Margaret Rintoul II' had, at that time, working high frequency (HF) and very high frequency (VHF) radios; (xii) the First Plaintiff asserted that heavy radio traffic on the designated race frequency prevented the crew of 'Margaret Rintoul II' from reporting the sighting of a distress flare to the race organiser sooner but gave no explanation for not attempting to immediately make contact with 'Sword of Orion' or to report the sighting to search and rescue authorities on other radio frequencies; (xiii) another yacht, 'Siena', at approximately the same time and in the same conditions, stood by for approximately 2 hours ready to assist a yacht, 'VC Offshore Stand Aside', which was similarly stricken and disabled as 'Sword of Orion'. During this period, 'Siena' communicated regularly by radio with search and rescue authorities and assisted in the coordination of a rescue effort; (xiv) at the conclusion of the race, the First Plaintiff stated publicly words to the effect that the crew of 'Margaret Rintoul II' was not in danger at any time during the course of the 1998 Sydney to Hobart Yacht Race; that, on a number of occasions, the crew had experienced much worse conditions; that the 'Margaret Rintoul II' was an extremely seaworthy boat particularly suited to the conditions experienced and that the crew had anticipated that it would perform well in the race once conditions became severe." 72 The issue of the capacity of a contextual imputation to meet the requirements of s16(2)(c) is a question of law. The division in the Court of Appeal suggests two approaches to that question. On one view, the issue should be approached by making an assumption that the contextual imputation is substantially true. Making that assumption, and weighing the effect upon the plaintiffs' reputation of the contextual imputation(s), on the one hand, and the plaintiffs' imputation, on the other, does the substantial truth of the contextual imputation(s) so affect the plaintiffs' reputation that the plaintiffs' imputation does not cause additional injury to that reputation? 73 In other words, the section operates in the following way. The contextual imputation is conveyed by the matter complained of. It is substantially true (and hence, had it been pleaded by the plaintiffs, would have been defensible under s15). It damages the plaintiffs' reputation. If the impact of the contextual imputation upon the plaintiffs' reputation is such that, having regard to the terms of the plaintiffs' imputation, no additional damage to that reputation was caused by that imputation, then the contextual imputation should stand. At the capacity stage, that issue must be approached upon the basis of rational possibilities. Under s16(2)(c) the defendants must prove that, by reason of the contextual imputation being a matter of substantial truth, the plaintiffs' imputation does not further injure their reputation. If it is possible that the plaintiffs' imputation caused additional injury to their reputation, but possible that it did not, then the contextual imputation is capable of satisfying s16(2)(c). The issue must be left to the trial, to be resolved by the trier of fact (in this case a single judge). However, where it is plain (such that the contrary cannot be reasonably supposed) that the plaintiffs' imputation caused additional damage to their reputation (beyond that caused by the contextual imputation), then the contextual imputation is incapable of satisfying s16(2)(c). When addressing that issue, it will be relevant to examine whether the contextual imputation and the plaintiffs' imputation deal with the same subject matter, and the seriousness of the charge made by each. 74 Applying that test, I believe the defendants' contextual imputation is incapable of satisfying the requirements of s16(2)(c). They both deal with the same subject matter. The plaintiffs' imputation has significantly more bite. It resolves a matter which must be the subject of doubt in respect to the contextual imputation, namely, whether the material before the Committee included the plaintiffs' version of what happened. The plaintiffs' imputation makes it plain that it did. More than that, the plaintiffs' imputation provides detail. It was the failure to stop, notwithstanding flares designed to attract the yacht's attention. And the adverse view, the suspicion based upon reasonable grounds, was taken by the Committee charged with the responsibility of investigating that issue. I agree with the plaintiffs' submission that the defendants' contextual imputation is a watered down, emasculated version of the plaintiffs' imputation. There is no rational basis upon which it could be said the plaintiffs' imputation did not cause additional injury to the plaintiffs' reputation. 75 The other approach is that of the majority in the Court of Appeal. They suggested that the issue must be resolved by focussing upon the facts, matters and circumstances said to establish the truth of the contextual imputation, rather than the text of the contextual imputation itself. The substantial truth of the elaboration provided by those particulars is capable of being viewed as so damaging the plaintiffs' reputation, that the plaintiffs' imputation did not further injure that reputation. It is therefore capable of satisfying s16(2)(c) and should not be struck out. 76 Levine J, in his decision in this case (Purcell & Anor v Cruising Yacht Club of Australia Pty Ltd & Ors (supra)), made the following comment upon the difference of view in the Court of Appeal: (para 14) "In my view it is inappropriate to determine that question by reference to what in reality could be the shifting sands of particulars of a case to be proved ... In this respect I prefer the views of Hodgson JA at paragraph [61]; that is, when one considers the true nature of the defence of contextual truth it ends up being a matter of weighing imputation against imputation." 77 With respect, I agree with that view. Nonetheless, the test which I am obliged to apply is that of the majority.