JUDGMENT (Contextual imputations - difference in substance - arising "at the same time and in addition to" )
1 The jury at the s7A trial found that the matter complained of, the text of which is appended hereto, carried the following imputations defamatory of the plaintiff:
5(b) The Plaintiff so incompetently carried out her management role in running the International Division of the Australian Taxation Office as to cause almost the entire staff of that Division to quit or go on stress leave in the previous two years.
(c) The Plaintiff so insensitively carried out her management role in running the International Division of the Australian Taxation Office as to reduce senior Australian Taxation Office staff to tears by publicly humiliating them.
(d) The Plaintiff so incompetently carried out her management role in running the International Division of the Australian Taxation Office as to reduce senior Australian Taxation Office staff to tears at their desks.
(f) The Plaintiff so incompetently carried out her management role in running the International Division of the Australian Taxation Office as to cause productivity in that Division to fall drastically in the previous two years.
2 The defendant has filed no defence pursuant to s15 of the Defamation Act 1974; that is, it has chosen not to justify the found defamatory imputations.
3 The defendant, however, has pleaded a defence under s16. The contextual imputations pleaded by the defendant are:
6(A) The Plaintiff, in the management of the International Division of the Australian Taxation Office, caused distress to a significant number of members of her staff.
(B) The Plaintiff, in the management of the International Division of the Australian Taxation Office, caused dissatisfaction and unhappiness amongst a significant number of members of her staff.
4 By notice of motion the plaintiff seeks an order striking out paragraph 5 of the defence which pleads contextual truth. The bases are that the contextual imputations are first, defective in form in that they do not differ in substance from each other. Secondly, they are defective in form as they do not differ in substance from the plaintiff's imputations. Thirdly, the contextual imputations, it is said, are incapable of being carried by the matter complained of "at the same time and in addition to" the plaintiff's imputations. Fourthly, the contextual imputations are not capable of having the effect that the plaintiff's pleaded imputations are not capable of further injuring the reputation of the plaintiff (Defamation Act 1974 s16(2)(c)).
5 There are subsidiary matters relating to the particulars of truth appended to the defence and the pleading of interstate defences.
6 The plaintiff argues that the article, as the jury found, plainly conveys not merely that the plaintiff managed her Division so as to cause "distress" or "disappointment and dissatisfaction" to "significant numbers" of staff but that she: so incompetently managed the Division as to cause almost its entire staff to quit or go on stress leave (imputation 4(b)); so insensitively, and so incompetently managed the Division as to reduce senior ATO staff to tears (imputations 4(c) and (d)); and so incompetently managed the Division as to cause productivity in the Division to fall drastically (imputation 4(f)). Rather than seeking to justify the plaintiff's imputations, the plaintiff says that the defendant now by its contextual imputations seeks to back-track from the actual meanings as found by attributing to the matter complained of meanings more "abstract and more vague" and seeking to justify those pursuant to s16.
7 In that context it is argued that the defendant's contextual imputations, do not, as they must, differ in substance from the plaintiff's imputations and from each other: Jackson v Mirror Newspapers Limited [1981] 1 NSWLR 36 at 39G-40C; Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 396E-F, 397C, 397G-398A, 399D-G; Waterhouse v Hickie (1995) Aust Torts Rep 81-347 at 62,488 per Priestly JA; McBride v Australian Broadcasting Corporation [2000] NSWSC 747 at paras [12]-[56] per Levine J; Purcell & Anor v Cruising Yacht Club of Australia & Ors [2002] NSWSC 557 at paras [8] and [11] per Levine J.
8 The defendant's contextual imputations, it is submitted, do not differ in substance from each other. Other than being "watered down", they "differ barely, if at all" in substance form the plaintiff's four imputations. They are thus bad in form and should be struck out.
9 As to the first question of whether the defendant's contextual imputations differ in substance one from the other: I am frankly unable to see any difference, in a real commonsense way, between the two imputations. It cannot be argued that they are different in gradation; it is mere playing with words to say that there is a difference between "distress" as referred to in 6(a) and "dissatisfaction and unhappiness" referred to in 6(b). The use of those words constitutes the only difference in terminology in the imputations. This is reinforced when one places each of the imputations in the context of the contents of the matter complained of. No sensible view can be reached that that matter warrants, by its terms, an express differentiation between "distress", "dissatisfaction" and "unhappiness".
10 For that reason the contextual imputations are defective in form and will be struck out.
11 If one contextual imputation was pleaded to the effect: "The plaintiff in the management of the International Division of the Australian Taxation Office caused distress, dissatisfaction and unhappiness to and amongst a significant number of members of her staff", would any such imputation differ in substance from the four found by the jury? The answer would have to be that there is certainly a difference in substance between plaintiff's imputation (f) and any such imputation along the lines referred to above. There would, however, be a serious question as to whether there would be any difference in substance between that kind of imputation and the first three of the plaintiff's imputations. My present view is that there would.
12 I am of the view, as I have indicated, that the imputations do not differ in substance one from the other and therefore should be struck out with leave to the defendant to replead.
13 The plaintiff also argued that the contextual imputations do not and cannot meet what is said to be a requirement that they be carried by the matter complained of "at the same time as and in addition to" the plaintiff's imputations.
14 The source for the phrase "at the same time as and in addition to" is in the judgment of Hunt J in Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 39G-40B. It is desirable to set out what his Honour there said: "It is, in my view, basic to the scheme of s 16 that both of the imputations in question (that is, the imputation pleaded by the plaintiff and the contextual imputation pleaded by the defendant) must be conveyed by the matter complained of at the same time and that each must differ in substance from the other. This is fundamental to the whole operation of the 1974 Act. If the plaintiff's imputation to which the defence of contextual truth is pleaded is rejected by the jury as not being the sense in which the matter complained of was understood by the ordinary reasonable reader, there must be judgment for the defendant (assuming that that is the only imputation relied upon by the plaintiff), and the defence of contextual truth never arises for consideration. It follows, therefore, that both imputations must be conveyed by the matter complained of before any question of contextual truth can arise. Unless both 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 several imputations contended for by both parties. Moreover, as the imputation pleaded by the plaintiff must be taken to include all other imputations which do not differ from it in substance (Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749, at p 771), it follows that each party's imputation must differ in substance from that relied upon by the other.