Imputation (d): the plaintiff is embroiled in a seedy Court case
15The defendants' objections are:
(a)The imputation does not capture the sting but merely repeats the words of the matter complained of;
(b)"Seedy" is a slang term, and the use of slang in imputations is impermissible;
(c)The imputation is not capable of being defamatory.
16Prior to the uniform legislation, objections of this kind were common in New South Wales. This was in part because the imputations (and not the matter complained of) formed the cause of action, which was seen as a good reason for careful drafting, and partly because to obtain tactical advantages in s 7A jury trials, where the jury had to determine issues of defamatory meaning and might more readily do so if the imputation quoted the publication. Challenges to use of the actual words are particularly likely to be brought where the words used are asserted to be slang, which is asserted to be ambiguous or of indeterminate meaning.
17In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Hutley JA stated (at 688) that it was "strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words that it has used." Gleeson CJ reiterated the correctness of Hepburn in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 148, using the imputation "X is disgusting" as a litmus for the degree of specificity (or lack thereof) in pleading. Hodgson JA similarly affirmed this principle in John Fairfax Publications Pty Ltd v Blake; David Syme v Blake (2001) 53 NSWLR 541 at [52] - [54]. Use of the words of the matter complained of was noted to be permissible, where those words were appropriate, by McColl JA in Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213.
18Counsel for the defendants referred to Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343, where an imputation that the plaintiff was "a shonky operator" had been pleaded. Hunt A-JA traced the history of this word (at [5] - [6]), concluded that "shonky operator" meant a dishonest person, and went on to dismiss the appeal.
19Although the Court of Appeal did not strike out this imputation on the basis that "shonky" was impermissible, this decision has come to be seen as a case supporting the striking out of similarly pleaded imputations where the words in the matter complained of are repeated and are asserted to be slang, on the basis that the issue of whether such an imputation could be pleaded "only arose on appeal" (Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20 at [24]).
20In Ahmed, the second case relied upon by the defendants on this point, the matter complained of described the plaintiff as "married to a lowlife grub who...was convicted of indecent assault" and went on to refer to the plaintiff (in the first broadcast) as "his grub of a wife". There were two hearings in the Defamation List in the Supreme Court in relation to the challenge to the word "grub". After the first challenge, Nicholas J struck out an imputation that the plaintiff "is a grub because she is a vile person", stating that the defendant's objections to the imputation had been "resolved during the course of submissions and exchange between Bench and Bar" and striking out the imputation with leave to replead.
21The repleaded imputations which were the subject of a second ruling in Ahmed were that the plaintiff was a grub because she was married to a convicted sexual offender and because she obtained an AVO against a talkback radio caller. Simpson J struck out both imputations. While her Honour considered the use of "grub" in the matter complained of conveyed a defamatory meaning (at [23]), that did not mean that its meaning was clear or ambiguous. Her Honour went on to state:
"[25] It is sometimes the case that, by reason of lack of specificity in what is published by a defendant, a plaintiff is hampered in attributing a more precise meaning to the language used by the defendant than that language itself conveys. It is, after all, the language of the defendant: see, for example, Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682. However, the obligation remains upon a plaintiff to identify the defamatory meaning. It is quite possible that the language used by a publisher is so vague or unspecific as to leave open a range of meanings. In such a case, it is insufficient for a plaintiff to adopt, in the imputation, the language used by the defendant, and leave the question of its meaning to the jury, see Singleton v Ffrench (1986) 5 NSWLR 425. It is, of course, possible for a plaintiff to provide alternative translations of the defendant's language; but provide at least one translation a plaintiff must."
22In Singleton v Ffrench (1986) 5 NSWLR 425, the term "breach of trust" was genuinely ambiguous. "Seedy", however, is in a different category. It connotes distasteful, unsavoury or perhaps even disgusting conduct or events and there is no secondary meaning suggested. The "seedy" nature of the court proceedings is illustrated in the matter complained of by a photograph of a legs in pink high heels beside a briefcase full of cash.
23There is no need for the plaintiff to obtain a "translation" of "seedy", or to seek alternative words to encapsulate its meaning. It is, like "shonky", or "disgusting", a word for which the meaning is clear. I am unconvinced that the word is even a slang expression.
24For the same reasons that Gleeson CJ considered that the meaning of "X is disgusting" to be clear and not to need refinement, I consider that the meaning of "seedy" is not only clear but successfully encapsulates the sting of the matter complained of, including not only the words, but the heading and the photograph.
25This imputation will go to the jury.