State of New South Wales v Wraydeh

Proceedings before the primary judge

1. The availability of an application by a plaintiff to adopt a defendant's contextual imputations was not in dispute. Mr Wraydeh relied on the decisions of this Court in Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 at [88] to [89] and Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 at [23] and my decision at first instance in Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 in which, applying Holt, I allowed an application of that kind.
2. However, the State challenged the bona fides of the proposed amendment. It submitted that, in the absence of evidence explaining why the contextual imputations had not been pleaded in the first instance and affirming that the plaintiff wished to claim damages in respect of those imputations because they were false, it could be inferred that the amendment was sought for the purpose of defeating the contextual truth defence and not for the purpose of vindicating reputation.
3. To the extent that the submission implicitly assumed that it would be an improper purpose to seek an amendment for the purpose of defeating a good defence, its correctness may be doubted, for the reasons I gave in Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171 at [14]-[17], applying the analysis of Simpson J (as her Honour then was) in Kermode at first instance: Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 at [41].
4. The characterisation of the application as one on which the plaintiff should fail for want of evidence assumed the existence of an onus of proof. In written submissions before the primary judge, Mr Wraydeh had argued that an affidavit "may not be a necessary pre-requisite to such an application" but his solicitor had nonetheless sworn one because the State "required" it. The affidavit said: "I am informed by, (sic) and verily believe, that counsel for the plaintiff briefed in the matter have formed the view that the plaintiff's imputations as contained in the amended statement of claim were the only defamatory imputations capable of arising from the matters complained of concerning the plaintiff. Having considered the matters complained of and the imputations pleaded in the amended statement of claim I am also of the same view."
5. The State identified two deficiencies in the affidavit. The first was that it did not assert that the contextual imputations were false.
6. Secondly, the State submitted that the effect of the affidavit was to establish that neither the solicitor nor counsel considered the contextual imputations to be capable of arising. It was submitted that the application should fail for that reason alone. In support of that contention, the State relied on my decision in Chel at [23].
7. The primary judge did not accept the State's characterisation of the affidavit. Her Honour understood the solicitor to be saying that counsel thought (presumably at the time they settled the pleading) that they had set out all the imputations capable of rising and that she (the solicitor) shared that view. The judge did not understand the affidavit to mean that the plaintiff's legal representatives continued to hold that view after seeing the contextual imputations: primary judgment at [24]. There is no challenge to that finding.
8. In any event, my decision in Chel turned on its own facts and should not be understood as authority for the proposition that a contextual imputation can never be adopted by the plaintiff where his or her counsel is of the view that it is not capable of arising. As submitted by Mr Molomby SC, who appeared with Mr Rasmussen for Mr Wraydeh in the appeal, the issue of capacity is determined on an objective test which is not informed by counsel's personal opinion as to whether the imputation can arise. Here, the State contends that the imputation does arise. It could not be an abuse of process for the plaintiff to embrace that contention.
9. Separately, the State submitted that the application was an abuse of process because Mr Wraydeh was seeking to rely on an imputation he knows to be true (the imputation that he is a criminal). It is established that that would be an abuse of process: Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612; [2017] NSWCA 264; cf Kazal at [43] per Meagher JA. The purpose of the tort of defamation is to vindicate reputation on some point as to which a person has been falsely defamed: Kazal at [6], a principle noted by the primary judge at [41].
10. However, the only evidence that Mr Wraydeh knew the contextual imputation to be true was the evidence of the prior convictions, which were said to provide incontrovertible proof that the contextual imputation is true. The submission assumed that a person who has prior criminal convictions is by definition "a criminal" (and knows that to be the case).
11. The primary judge determined the application by reference to three issues (identified at [31] to [36] of the primary judgment). Of those, the only finding now challenged is her Honour's finding as to whether the proposed amendment was an abuse of process because it sought to prosecute a claim based on an imputation which the plaintiff knew to be true.
12. However, the State contends that her Honour failed to address its separate argument as to the bona fides of the application based on the state of the evidence before the primary judge. The argument as developed in this Court was that, if the plaintiff failed to prove that the amendment was sought for the purpose of vindicating his reputation in respect of the two contextual imputations, it could be inferred that it was sought only for the allegedly improper purpose of defeating the contextual truth defence (by appropriating imputations the plaintiff otherwise had no interest in suing on).
13. As to the first issue, after a careful analysis of authority and the parties' arguments, the primary judge concluded that it was not an abuse of process for the plaintiff to adopt the imputation that he is a criminal. Her Honour said at [60]: "Whether the plaintiff's criminal antecedents make him a criminal should be a disputed issue of fact for the trial, not for summary dismissal of his entitlement to plead a clearly defamatory imputation on the basis of abuse of process."
14. Her Honour noted (with respect, correctly) that it did not follow that the plaintiff's criminal convictions would not play a role in the trial but held that evidence of those convictions was insufficient to constitute proof of an imputation that the plaintiff is a criminal "in the more innately existential sense claimed by the defendant".

Grounds of appeal

1. The notice of appeal identifies two grounds of appeal, as follows: "The court below erred in granting leave to the respondent to add the contextual imputations to a further amended statement of claim: (a) without sufficient evidence, in that there was no or insufficient evidence from: (i) the respondent's legal representatives why they are seeking to plead back the imputations; or (ii) the respondent that he believed the imputations to be added were false; or (iii) the respondent that he wished to be vindicated in relation to those contextual imputations. (b) the court below erred in finding that evidence of other convictions in the form of a party's criminal record was insufficient to constitute proof of an imputation that 'the plaintiff is a criminal'."
2. During the argument of the appeal, the State was granted leave to add a third ground as follows: "(c) The court below erred in failing to hold that the application to amend was not brought in good faith or was an abuse of process."

Insufficiency of the plaintiff's evidence

1. Ground (a) is based on the contention that, in an application to amend, the moving party bears an onus of proving that the amendment is brought in good faith. Ms Chrysanthou, who appeared for the State, submitted that three cases outside the field of defamation stand as authority for that proposition. The first is the decision of the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [103] where it was said in the judgment of the plurality: "The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case."
2. It may be noted that the State does not contend that there was relevant delay in the present case; the application was brought promptly after the defence was filed (unlike the position in Chel: see [20] of the judgment in that case).
3. The second is the decision of Horton v Jones (No 2) (1939) 39 SR (NSW) 305 at 309-310. There, Jordan CJ said (emphasis added): "It is now a commonplace that if a party to legal proceedings establishes to the satisfaction of the Court that he is genuinely desirous of amending his pleadings for the purpose of modifying or otherwise altering some existing claim or defence, or of introducing a new ground of claim or a new matter of defence, he should be permitted to do so, subject to the imposition of such terms as may be proper, unless the proposed amendment is so obviously futile that it would be struck out if it appeared in an original pleading, or unless it is one that it would be impossible to allow upon any terms without causing substantial injustice to another party to the proceedings."
4. The third was the decision of this Court in Rennie Golledge Pty Ltd v Ballard [2012] NSWCA 376 at [104]-[105] where Campbell JA identified the bona fides of the proposed pleading as a factor that was proper to be taken into account.
5. None of those authorities stands for the proposition that the moving party in an amendment application bears an onus of proof to establish that the amendment is brought in good faith. The decision in Aon holds that, where a party seeks the exercise of a discretion in its favour to the disadvantage of another, "generally…an explanation will be called for". The argument now put by the State seeks to elevate that observation to a rule relating to onus.
6. In oral submissions, Ms Chrysanthou accepted that there is no rule requiring an affidavit to be filed. It was argued, however, that where the evidence on balance appears to suggest that a contextual imputation is true, the issue of good faith is "live", with the result that the moving party has to deal with it. Ms Chrysanthou submitted that, in the absence of such evidence, it may be inferred that the only purpose of the amendment is to defeat the s 26 defence. As noted during argument, however, it does not follow that the moving party must necessarily put on evidence in order to resist the inference contended for.
7. The State relied in this context on the recent decision of Hoeben CJ at CL in Dominello v Harbour Radio Pty Ltd t/as 2GB [2019] NSWSC 403 where his Honour accepted the same argument. The principles applied in that case are not in dispute. Justice Hoeben referred to the decision in Farrow where Basten JA and Sackville AJA agreed with the following statement of mine at [35]: "The submission that a plaintiff's imputation does not 'challenge' anything is technically correct in that falsity of an imputation is not an element of the cause of action. All a plaintiff is required to establish is that the matter complained of was published and that it conveyed a defamatory imputation; truth is a defence. It does not follow that a plaintiff can properly institute an action seeking damages for a defamatory imputation he or she knows to be true. In my respectful opinion, it is manifestly an abuse to invoke the court's process to obtain a remedy to which the applicant is indisputably not entitled or else put a defendant to proof of that which cannot be denied."
8. In that case, the plaintiff's statement of claim included defamatory imputations which she acknowledged to be true. The decision to plead those imputations was openly tactical.
9. The decision in Dominello was an application of that principle, ultimately turning on Hoeben CJ at CL's assessment of the strength of the evidence that the contextual imputation Mr Dominello sought to adopt was one he knew to be true. That is not to condone an approach, where that issue is contested, of attempting to determine the question of truth in an amendment application. Each case must be approached according to its own circumstances.
10. I do not accept that, in the circumstances of the present case, the amendment application could not properly be allowed unless the plaintiff proved it was brought in good faith. As suggested by Emmett AJA during oral argument, if there was error in the primary judge's approach, it was not that her Honour proceeded in the absence of evidence. The proper analysis of the error alleged is that her Honour failed to draw the inference the State contends ought to have been drawn in all the circumstances. That is the issue raised by the new ground (c).
11. For those reasons, ground (a) must be rejected.
12. As to the point raised by ground (c), while I understood this aspect of the argument to be directed to both of the contextual imputations, the submissions focussed on the imputation that the plaintiff is a criminal. The other contextual imputation is "that the plaintiff had so conducted himself as to be reasonably suspected by police of being involved in a fatal car accident". In circumstances where there is no truth defence in respect of any of the imputations concerning the fatal accident, I do not think there is any basis for concluding that the plaintiff did not seek to vindicate his reputation against that imputation.
13. The position in respect of the "criminal" imputation is considered below.

Significance of the plaintiff's prior convictions

1. Ground (b) asserts that the primary judge erred in finding that the evidence of prior convictions was insufficient to constitute proof of an imputation that "the plaintiff is a criminal". Again, with respect, the proper analysis of the error alleged is the failure to draw the inference the State contends ought to have been drawn, which is the issue raised by ground (c). The question raised by the principles considered above was whether the "criminal" imputation must be known by the plaintiff to be true, in which case it ought to have been concluded that the application was an abuse of process. The abuse in such a case consists in seeking vindication of reputation in respect of an imputation the truth of which cannot properly be controverted, as was the case in Farrow.
2. The submissions on this issue implicitly contended that, because the plaintiff has prior convictions, the imputation that he is a criminal must be true to his knowledge. However, as held by the primary judge, that is contestable.
3. The primary judge addressed this issue by reference to the notion of a person being "libel-proof for the rest of his or her life". Ms Chrysanthou submitted that her Honour addressed the wrong question. She submitted that the question was whether or not there was a strong case of criminality in relation to this particular plaintiff as at August 2016, the date of publication of the matters complained of.
4. I am not persuaded that her Honour erred in framing the issue in the terms in which she did. Reading the judgment fairly as a whole, it is clear that the term "libel-proof" was used as a way of framing the question whether the plaintiff was necessarily to be characterised as a criminal as at the date of publication on account of convictions recorded against him in the past.
5. The way in which the State framed the question (as being whether or not there was a strong case of criminality as at the date of publication) involved an extension of the principle stated in Farrow. As already noted, the imputations pleaded by the plaintiff in that case included a number of imputations the truth of which was incontrovertible. The application did not require the primary judge to make a pre-trial assessment of the strength of the evidence proposed to be adduced at trial.
6. That is not the position in the present case. The question whether a person is to be characterised in the present tense as "a criminal" is not answered determinatively by establishing that he or she has committed a criminal offence in the past. In the first instance, as noted by the primary judge, that ignores the possibility of change and rehabilitation. Further, not every prior conviction would be regarded as necessarily warranting that label.
7. In my view, the primary judge was correct to hold that the question whether the plaintiff's prior convictions established the substantial truth of that contention was a question of fact to be determined at trial. I am not persuaded that the only available inference on the evidence before the primary judge was that the application to amend was not brought in good faith or was an abuse of process.
8. For those reasons, I propose the following orders: 1. that the appellant file an amended notice of appeal in accordance with the leave granted during the hearing within 7 days; 2. that the appeal be dismissed; 3. that the appellant pay the respondent's costs.
9. EMMETT AJA: The respondent, Hussein Wraydeh, sued the appellant, the State of New South Wales (the State), in the District Court of New South Wales, alleging that police officers published defamatory material of and concerning him. The State filed a defence relying on s 26 of the Defamation Act 2005 (NSW) (the Defamation Act), which relevantly provides that it is a defence to the publication of defamatory matter if the defendant proves that that matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. The contextual imputations relied on by the State in its defence were as follows:

• the plaintiff had so conducted himself as to be reasonably suspected by police of being involved in a fatal car accident; and
• the plaintiff is a criminal.

1. The plaintiff then applied to the District Court for leave to amend his statement of claim to allege that the material complained of conveyed each of those imputations. The plaintiff's approach suggests that the principles of the equivalent delict in Roman Law could well be adopted in New South Wales. In Roman Law, the action for iniuria [1] was extinguished by dissimulation. That is to say, if someone let a defamation pass, the person could not later change his or her mind and rekindle the offence that he or she overlooked. In other words, if a plaintiff was not in fact offended or scandalised by material complained of, he or she was not entitled to bring an action. In the present context, if the plaintiff did not think, when he first read the material complained of, that the contextual imputations were conveyed, he should not subsequently be permitted to allege them and to recover damages in respect of them. [2]
2. That is to say, iniuria in Roman Law rested on outraged feelings and not on economic loss. The action is based on what is good and equitable and the action did not lie in the event of dissimulation since, if someone ignores an affront at the time when he or she suffers it, he or she cannot, on second thoughts, revive the affront that he or she let pass. [3] A fortiori there would be no cause of action if the plaintiff was not in fact affronted at the time when he first became aware of the material complained of. That is to say, to affect outrage that was not actually felt involves dissembling.
3. On 7 June 2018, for reasons published on that day, a judge of the District Court granted leave to the plaintiff to make the amendments sought by the plaintiff. On 7 December 2018, this Court granted leave to the State to appeal from the orders made by the District Court. The State, in essence, relies on two grounds. The first is that the primary judge erred in failing to hold that the application to amend was not brought in good faith and was an abuse of process. The second ground is that her Honour erred in failing to find that evidence of other convictions of the plaintiff in the form of his criminal record was conclusive evidence of the truth of the imputation that the plaintiff is a criminal.
4. In relation to the first ground, the State contended, in essence, that the primary judge ought to have drawn the inference from the material that was before her that the plaintiff did not believe that the contextual imputations were conveyed by the material complained of and did not believe that the imputations were false. Therefore, the State contended, it was an abuse of process for the plaintiff to allege that the imputations were conveyed by the material complained of and were false.
5. The State relied, for the inference, on the fact that the imputations were not alleged by the plaintiff until they were raised in the State's defence as contextual imputations and further, counsel for the plaintiff, in the course of the hearing before the primary judge, conceded that he had some trouble in seeing how the imputations arose. The State also referred to an affidavit sworn by the plaintiff's solicitor saying that counsel for the plaintiff had formed the view that the plaintiff's imputations as contained in the amended statement of claim were the only defamatory matters capable of arising from the matters complained of and that the plaintiff's solicitor was of the same view. The State contended that was evidence that counsel and the solicitor were of the view that the contextual imputations were not capable of arising from the matters complained of.

• Mr Wraydeh has a criminal history;
• ergo, Mr Wraydeh is a criminal;
• Mr Wraydeh knows that he has a criminal record;
• ergo, Mr Wraydeh knows that he is a criminal.
• For a plaintiff to pursue an imputation known to be true is an abuse of process.

1. The series of propositions at first blush has a beguiling simplicity. But they do not withstand scrutiny.
2. Underlying the series of propositions is the unstated premise that a person who has a criminal record is, therefore, necessarily to be categorised as "a criminal". The State relied (simplistically) on a dictionary definition of "criminal" as "a person guilty of or convicted of crime" (Macquarie Dictionary, 2nd ed). The premise, as McCallum JA says, is contestable. Whether a criminal history necessarily constitutes its owner a criminal will, in some cases, involve questions of fact and degree. Is a person convicted of shoplifting at age 18 forever to be branded "a criminal"? Is a person convicted of motor traffic offences (which are criminal in nature) to be branded "a criminal"? These questions do not arise in the present case. But they illustrate that the State's propositions would involve this Court embarking on questions the determination of which properly lies within the province of a jury. It would only be in a very unusual case that the Court would, at an interlocutory stage, embark on the determination of the truth of a pleaded imputation. Yet that is what the State invited the primary judge, and this Court, to do.
3. For these additional reasons I agree with the orders proposed by McCallum JA.

Endnotes

1. The word iniuria is Latin for "injury" or "wrongdoing" and the scope of the delict grew to include defamation.
2. See Justinian's Institutes 4.4.12. (Paul Krueger ed., Peter Birks & Grant McLeod trans., 1987) (Institutes).
3. See Digest of Justinian 47.10.11.1.(Theodor Mommsen & Paul Krueger eds., 1880-95 tr Alan Watson 1985) (Digest). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2019