(C)(2) the plaintiff, as a senior prison officer, requested a prison officer, who had received a serious gunshot wound during a hostage training exercise, to acquiesce in, that is to go along with, a lie about what had happened".
36 The defendant's submission on the issue of capacity, as I understood it, was that the passage relied upon is capable of suggesting that the plaintiff as the senior prison officer at the exercise pressured his subordinate, Roger Cumming, "… to close ranks and to participate in a whitewash" (T p 40). It was put, that understood in this way, the words support the notion that the conduct ascribed to the plaintiff was limited to requesting his subordinate to acquiesce in, or to go along with a lie about the manner in which the injury had been received, or about what had happened.
37 In my opinion the words relied upon by the defendant, read in context, provide no support whatever for imputations (B)(2) and (C)(2). In my judgment, the reader who understood the publication in terms of these imputations would not be a person of fair average intelligence possessed of the attributes of the ordinary reasonable reader described in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, (p 165). Such a reader would be a person who simply ignored or failed to grasp the plain and ordinary language of the publication.
38 The publication alleges, without qualification, that the plaintiff had asked Mr Cumming to lie about what had happened. It then reports that he denied asking Mr Cumming to lie, thereby effectively reinforcing the publisher's repetition of Mr Cumming's claim that he did. Nothing in the publication provides any rational basis for concluding that it meant anything less serious than, or different in substance from, an allegation that the plaintiff had asked Mr Cumming to lie.
39 Accordingly, I hold that contextual imputations (B)(2) and (C)(2) are not reasonably capable of being conveyed by the matter complained of, and should be struck out. Furthermore, on the assumption that the matter complained of is reasonably capable of conveying these imputations, in my opinion neither is reasonably capable of being conveyed at the same time and in addition to imputation 4(f) so as to be "another imputation" within s 16(1) (Allen, p 12). In the circumstances I find that it is not reasonably open to the trial judge to hold that either (B)(2) or (C)(2) is another imputation within s 16(1).
40 The plaintiff challenged imputation (D) on grounds that it is incapable of arising, alternatively, that it is not another imputation within s 16(1) in that it does not differ in substance from plaintiff's imputation 4(f).
41 The terms of these imputations are:
"4(f) The Plaintiff corruptly handled prison informants".
"(D) the plaintiff, as a senior prison officer, acted dishonestly in his handling of a prison informant".
42 The relevant passage of the matter complained of is:
"In 1993 the ALP, then in Opposition, called for Woodham, then an assistant commissioner with Corrective Services, to be sacked after an Independent Commission Against Corruption report labelled him corrupt over his handling of prison informants. The ICAC finding was later overturned by a Supreme Court judge, who ruled the ICAC was "wrong in law".
43 The defendant submitted that the matter complained of is reasonably capable of conveying (D). I accept that submission.
44 The real question is whether it is open to rely upon it as a contextual imputation for the purpose of a defence under s 16. It was submitted that in the context of this publication the assertion of dishonest conduct is to say something different in substance from corrupt conduct as alleged in 4(f), although the defendant accepted that an allegation of corruption inevitably conveys an allegation of dishonesty (T p 42). In reliance upon Singleton, it was put that the defendant might justify the allegation of dishonesty in (D) by proof of facts different from those necessary to justify the allegation of corruption in 4(f), a consideration indicative of the difference in substance between them.
45 The defendant also put that where, as in this case (further amended defence para 4, I(c)(2), (3)), the contextual truth defence pleads the combined effect of contextual imputations to each of the plaintiff's imputations it is inappropriate pre-trial to determine whether a particular contextual imputation differs in substance from a plaintiff's imputation. In effect, as I understood it, the submission was that because the trial judge under s 16(2)(c) is required to measure the injurious effect of the contextual imputations in combination against each of the plaintiff's imputations the real question is whether there is a difference in substance between the contextual imputations considered in combination and a particular plaintiff's imputation (T pp 49, 50), and that such question should properly be left for the trial.
46 The last mentioned submission may be dealt with briefly. In my opinion it is misconceived, and must be rejected. It overlooks the requirement under s 16(1) that a contextual imputation for the purposes of the section is another imputation made by the same publication which is contextual to the plaintiff's imputation. Before the weighing exercise under s 16(2)(c) takes place it is necessary that the defendant's imputations have been found to be contextual imputations within s 16(1). Obviously, the question under s 16(1) is a threshold question to be determined before any question under s 16(2) can arise.
47 In my opinion, also, the defendant's primary submission should not be accepted. I am unpersuaded that the ordinary reasonable reader could rationally discern from the words complained of, read in context, any available distinction in substance between imputations 4(f) and (D), or that he would understand (D) to be conveyed at the same time and in addition to 4(f). In my opinion, to adopt the words of Spigelman, CJ in John Fairfax Publications Pty Ltd (para 16), in substance (D) is nothing more than an alternative way of formulating 4(f), based on exactly the same words in the matter complained of and applying those words in exactly the same way. The allegation in 4(f) is a general allegation that the plaintiff corruptly handled prison informants. The allegation in (D) that he acted dishonestly in handling a prison informant refers to a particular act which, in my view, would be understood as an inseverable part or aspect of the general charge made in 4(f). This is to take a common sense approach to an understanding of the publication which is expected of the ordinary reasonable reader. (cf: John Fairfax Publications Pty Ltd, Hodgson, JA paras 80, 91, 101; Ipp, JA para 111).
48 Furthermore, 4(f) is to be taken to include imputations not substantially different from it, including those which are less injurious, as well as shades and gradations of similar imputations (Morosi). In the circumstances of this case, the jury's finding that 4(f) was conveyed by the matter complained of must be taken to comprehend a finding of an imputation in terms of (D).
49 Accordingly, I find that (D) is not reasonably capable of satisfying the requirement for another imputation under s 16(1) of the Act, and should be struck out.
The interstate defences
50 In the interstate defences under Polly Peck the defendant has pleaded the same imputations as it did in the contextual truth defence in respect of publication in New South Wales. Imputation (A) is identical to 4(c). I have found (B)(1) and (C)(1) are imputations different in substance from, and additional to, the plaintiff's imputations, including 4(c), for the purposes of s 16. I have found (D) is capable of arising but is comprehended in, and not different in substance from, 4(f). I have found that (B)(2) and (C)(2) are not reasonably capable of arising.
51 The plaintiff submitted that under Polly Peck a defendant is precluded from pleading and justifying imputations which differ in substance from the plaintiff's imputation(s). It was put that the defendant is confined to such additional imputations which are variants or nuances of, or less injurious than, the plaintiff's imputation(s). It was argued that the approach to be taken in deciding whether or not a defendant's imputation is substantially different from a plaintiff's imputation is the same as that taken in New South Wales in deciding whether the plaintiff's imputations differ in substance from each other. It was submitted that an imputation which is a contextual imputation under s 16 is one separate and distinct from the plaintiff's imputation and, therefore, outside the ambit of alternative imputations available to the defendant under Polly Peck. It follows that, on my findings in this case, (B)(1) and (C)(1) should be struck out from the interstate defences.
52 In respect of the defence to publication in Queensland in para 4, IV(c) and (d) the plaintiff submitted that following Robinson v Laws [2003] 1 Qd R 81, in which the Supreme Court of Queensland, Court of Appeal held that it was not open to a defendant in Queensland to plead a defence in accordance with the decision in Polly Peck, I should strike out the defence in this case.
53 The defendant submitted that, in deciding whether the defendant's imputation was different in substance from the plaintiff's imputation, the court should take a more liberal approach than that ordinarily taken in deciding whether for the purposes of New South Wales pleading requirements the plaintiff's imputations differ in substance from each other. It was submitted that statements in Chakravarti, David Syme, and Manock indicate that in the common law jurisdictions the scope permitted to the defendant to plead imputations which would not be held to differ in substance from the plaintiff's imputation is considerably wider than that permitted to the plaintiff in New South Wales to plead more than one imputation. In short, it was submitted that in New South Wales a narrower test is applied in deciding whether or not the plaintiff's imputation is a nuance or variation of, or less injurious than, another imputation than is applied in deciding the same question in respect of the defendant's imputation for the purpose of a Polly Peck defence. It was put that (B)(1), (B)(2), (C)(1), and (C)(2) shared a common sting with, and were sufficiently close in meaning to, 4(c) as to entitle the defendant to plead and justify them.
54 With respect to the Queensland defence the defendant formally submitted that I should not follow Robinson, and suggested that the decision does not preclude a defendant from relying upon a meaning within the limits described in David Syme and Manock.
55 It is convenient to turn first to the Queensland defence in para 4, IV(c) and (d). By its decision in Robinson the Court of Appeal held that the Polly Peck defence is not available in Queensland. The statements of de Jersey, CJ (para 44) and Williams, JA (para 94) to that effect are unqualified, and are not to be understood as admitting of exception where the defendant's imputations are less serious than, or nuances or shades of, meaning of the plaintiff's imputations. There is no reason for me not to follow the decision in this case. Accordingly, I propose to order that para 4, IV(c) and (d) be struck out.
56 The questions raised by the plaintiff require consideration of the components of each remaining Polly Peck defence as pleaded. Paragraphs 4, II(c) and (d), 4, III(c) and (d) and 4, V(d) and (e) replicate para 4, I(c) and (d) which is in the standard form for a defence under s 16. In my opinion the pleader has included in these paragraphs matter which is inappropriate under a Polly Peck defence, and otherwise is a source of embarrassment and delay so as to attract the application of Pt 15, r 26(1) as explained in the following paragraphs.
57 A Polly Peck defence is one of justification of an alternative meaning not substantially different from the plaintiff's meaning (e.g. Jones para 52). It follows, in my view, that the pleading of (A) which is an imputation identical, and not alternative, to 4(c) should not be allowed. In any event, justification to 4(c) is separately pleaded. I propose to order that (A) be struck out of these defences.
58 Further, as Simpson, J in Jones (para 51) pointed out, Polly Peck does not permit a defendant to do what s 16 explicitly permits a defendant to do in New South Wales, namely to show that, by reason of the truth of an imputation which is substantially different from the plaintiff's imputation, the publication of the plaintiff's imputation did not further injure his reputation. For the purposes of these defences it is simply not relevant to consider the seriousness or impact on the plaintiff of the defendant's justified imputations. (Manock para 48). Accordingly, I propose to order that sub-para (d) of 4, II and III, and sub-para (e) of 4,V be struck out.
59 As I have found (B)(2) and (C)(2) to be incapable of arising I propose to order that they be struck out of these defences.
60 I have found that (B)(1) and (C)(1) differ in substance from 4(c). Necessarily, I have found that they are neither imputations comprehended in, nor close to or the same as, 4(c) (Manock para 72, David Syme para 22, 53). The consequence of these findings is that each is separate and distinct from 4(c) and therefore is unavailable to the defendant under the Polly Peck defences (Jones para 53).
61 I am not persuaded by the defendant that a different approach is to be taken in deciding the question of "substantially different from" for the purpose of a Polly Peck defence to the approach taken in New South Wales in respect of the plaintiff's imputations. The verbiage used in, e.g. Chakravarti (paras 24, 60, 139) including "nuance", "less serious", "variant", "shades", referable to a Polly Peck imputation is identical to that used in, e.g. Morosi (p 771) referable to the plaintiff's imputations. Indeed, in Manock (paras 63, 64, 81, 82) Doyle, CJ describes the approach taken in Chakravarti, David Syme, and other cases as a good deal narrower than the approach taken in Polly Peck.
62 Accordingly, I propose to order that (B)(1) and (B)(2) be struck out of these defences.
63 I have found that (D) does not differ in substance from 4(f). Therefore, in my opinion, it is available to the defendant for the purpose of the remaining interstate defences.