Toben v Milne

Relevant legal principles 7It is useful at the outset to refer to a number of basic principles which are relevant to the question raised on the appeal. 8The Defamation Act 2005, s 8 provides for a single cause of action arising out of a defamatory article. Nonetheless, the pleading of a defamation claim proceeds by way of imputations and challenges to individual imputations have remained part of the legal landscape. This is due in part to the retention in the Uniform Civil Procedure Rules 2005 (UCPR) of the requirement to plead a defamation claim by way of imputations. The rules provide, relevantly: "14.30 Allegations in statements of claim generally (1) A statement of claim seeking relief in relation to the publication of defamatory matter must not include any allegation that the matter or its publication was false, malicious or unlawful. (2) Any such statement of claim must: (a) subject to subrule (3), specify each imputation on which the plaintiff relies, and (b) allege that the imputation was defamatory of the plaintiff. (3) A plaintiff in proceedings for defamation must not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same matter unless the imputations differ in substance." 9The Defamation Act itself assumes the pleading of imputations. Section 8 recognises that more than one defamatory imputation may be carried by a matter. Sections 25 and 26, which each provide a defence to the publication of a defamatory matter, require the defendant to prove the substantial truth of defamatory imputations or contextual imputations respectively. 10The retention of the rule that imputations must differ in substance reflects the previous jurisprudence that precluded pleading of imputations with varying shades or gradations of meanings which are not different in substance: see Morosi v Mirror Newspapers Limited [1977] 2 NSWLR 749 at 770-771; Monte v Mirror Newspapers (1979) 2 NSWLR 663 at 676. The aim is to ensure that imputations are stated with sufficient precision to avoid the likelihood of confusion as to what the imputation means: see Singleton v Ffrench (1986) 5 NSWLR 425; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158. 11Any imputation must be taken to include all other imputations which do not differ in substance: Morosi v Mirror Newspapers at 771; Singleton v John Fairfax & Sons Ltd (Supreme Court (NSW), Hunt J, 20 February 1980, unreported). Different tests have been stated for determining whether pleaded imputations are different in substance. 12Singleton v John Fairfax was a case where both a general and a particular imputation had been pleaded. Hunt J suggested two possible ways to test whether the pleaded imputations differed in substance. The first was to ask what would be required to prove justification to each imputation. His Honour referred by way of example to the decision of Bishop v Latimer (1861) 4 LT (NS) 775, where the defamatory statement in issue was "How Lawyer Bishop treats his clients". It was held in that case that proof that the lawyer treated one client badly was not sufficient justification of the statement, which implied that that was how he treated his clients generally. The second was to ask what may be proved by way of justification to each imputation. In that regard, his Honour pointed out that in the case of a general imputation a defendant could prove the truth of the allegation by matters unrelated to the specific instance identified in the matter complained of. 13An example of the application of the 'test' articulated by Hunt J is to be found in John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; 70 NSWLR 484. In that case, McColl JA held that the imputation that the plaintiff had gatecrashed a social function knowing she was not invited was different in substance from the imputation that the plaintiff had merely gatecrashed a social function, because to prove the first it would be necessary to demonstrate the respondent's state of mind, whereas that was not necessary for the latter. Her Honour found that although there was clearly a significant overlap in the imputations pleaded, there was a point of difference sufficient to support the independent pleading of the different imputations. 14In Griffith v Australian Broadcasting Corporation & Ors [2002] NSWSC 86, to which the Court was referred by the respondent, Simpson J, at [67], observed that in the usual case the question whether pleaded imputations were different in substance could only be answered by reference to the terms in which the imputations had been pleaded. However, her Honour accepted that it was permissible on occasions to look to the matter complained of in order to determine the context in which the alleged defamatory statements were made. 15The appellant submitted that the test articulated by Hunt J in Singleton v John Fairfax was the appropriate test to apply in the present case. The respondent submitted that this test was only applicable where there was a general and a specific imputation. He initially contended that was not this case, but after discussion with the bench, indicated that this case was no different from Singleton v John Fairfax. In this regard, counsel for the appellant explained: "On one view, if you deny the holocaust ... you could be taken to be fabricating history. That might be a matter for trial, but it's not something that we should have to deal with at trial if in fact these two imputations don't differ in substance." 16In this regard, counsel agree with the proposition posed by Meagher JA: "[HIS HONOUR]: You say holocaust denial includes not only denying but whatever is necessary to deny, or in the process of denying, which could include justifying by fabrication?" 17The respondent's principal position, however, was that the 'test' in Griffith v Australian Broadcasting Corporation was the appropriate test to apply in this case. 18The 'tests' stated in Singleton v John Fairfax and Griffith v Australian Broadcasting Corporation, useful as they may be, are no more than available means by which a court may go about the task of determining whether imputations differ in substance. A court might find utility in engaging one or more of these so called 'tests'. Depending upon the particular case, it may be sufficient for the court to have regard only to the words themselves, as Simpson J indicated in Griffith v Australian Broadcasting Corporation. Or, as her Honour added, it may be appropriate to look at the matter complained of to determine the context in which it is said the implication arises. The position was well expressed by Kirby J in Parker v Laws [2002] NSWSC 311, at [12]: "In the context of Pt 67 r 11(3) [the predecessor rule to UCPR, r 14.30], the test formulated by Hunt J is useful. However, it will not always be determinative. For instance, it will often be appropriate for the plaintiff to 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 9 Pty Ltd (1984) 1 NSWLR 386 at 398). The same evidence may prove the truth of each imputation, and yet they will differ in substance. That simply is a reminder that one must attend to the wording of the imputation, as well as the issues raised by it." 19For the reasons which follow, the question whether imputations (a) and (c) differ in substance is most readily tested by considering the imputations in the context of the words used in the matter complained of. The publication must be looked at as a whole: Morosi v Mirror Newspapers at 770. In the present case, the subject matter of the publication was the portion identified in the newspaper article as para 8, set out above at [*1]. In Jones v Skelton [1963] 1 WLR 1362 Lord Morris, in delivering the judgment of the Privy Council, stated, at 1370-1371: "The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words ... The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words." 20The specificity with which an imputation must be pleaded was referred to by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137, where his Honour said: "If a defendant has posted in a public place a sign that simply says 'X is disgusting', the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter." 21An imputation may plead or closely follow the exact words used in the alleged defamatory publication: see John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 201 ALR 77 at [63]. However, as Hunt AJA pointed out in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [126]: "Merely pleading the words of the matter complained of as the imputation for which the plaintiff contends where those words do not adequately distil the act or condition attributed to the plaintiff, and thus identify his cause of action, is not a compliance with Pt 67 r 11(2)."

Parties' submissions 22In his submissions on the appeal, the appellant reiterated his submission made to the primary judge that imputation (a), that he "fabricated history", meant that he "made up, invented, faked or constructed history", which involved the doing of a positive act. The appellant contrasted this with imputation (c), which, he contended, need not involve any positive act, but rather was a denial or refusal to believe or recognise that a certain event occurred. It was submitted, therefore, that imputations (a) and (c) were different in substance. 23The appellant contended, by reference to the test stated by Hunt J in Singleton v John Fairfax, that in this case, the difference in the two imputations could be demonstrated by assessing what evidence would be required for the respondent to prove that each imputation was substantially true. It was submitted that to prove imputation (c), evidence would have to be adduced that the appellant had denied there was a Holocaust. This was to be contrasted with the general allegation in imputation (a). It was submitted that imputation (a), that the appellant fabricated history, could be proved without reference to the Holocaust. For example, evidence might be adduced of some fabrication relating to anti-Semitism either before or after the events of the Holocaust. It was also submitted that evidence could be adduced that the appellant fabricated some historical event not associated with anti-Semitism. 24The respondent submitted that it was apparent from the words used in the publication that there was only one possible sense in which "fabrication of history" was being asserted, namely, that the fabrication of history was in denying the Holocaust, as found by the primary judge. It followed that there was no difference in substance between imputation (a) and imputation (c).

Consideration 25On its plain reading, the matter complained of contained three references. The first related to "holocaust denials", without reference to any named person or persons or groups of person as engaging in that conduct. The second encompassed the appellant personally, as a person who fabricated history. The third also encompassed the appellant, as a person who spread and engages in anti-Semitism. Leaving aside the question whether the imputation that the appellant is a Holocaust denier is in fact conveyed by the publication, there may well be a connection between the three matters asserted in the article. This can be demonstrated by reference to imputations (c) and (d) (which were not in dispute). A person who is a Holocaust denier may be, and may even likely be, anti-Semitic. A person who is anti-Semitic may be, but is not necessarily, a Holocaust denier. The two imputations are different in substance, notwithstanding the possibility of overlap. The inherent difference was recognised by the respondent in not seeking to strike out one on the basis that it was not different in substance from the other. 26Imputation (a), however, requires deeper analysis. As already indicated, it is accepted that a general imputation may be pleaded in addition to a specific imputation. Consistently with what we have said above, there are relevantly three possible stings in the article: one is that the appellant is a Holocaust denier. The second is that he engages in anti-Semitic activities. The third is that people like the appellant "engage in fabrication of history and ... spread and engage in anti-Semitism". A person who denies the Holocaust may do so as a matter of repudiation. Such repudiation may be uninformed, in the sense of being due to lack of education or knowledge. It may arise out of religious or other bigotry. It could not be said, however, that an imputation that a person repudiated the Holocaust, for whatever reason, necessarily amounts to an imputation that the person fabricated history. Rather, a person who repudiates an event may do so in various respects without engaging in any fabrication. Thus, such a person may deny that a particular event occurred at all, or may deny that it occurred to the extent that is documented and accepted as historical fact, such that it can be said the person denies that an event occurred which is properly characterised as "the Holocaust". 27It is quite different to say that a person "fabricates history". Fabrication, as a matter of ordinary English, used in the sense of "fabricates history", means to make something up; to lie about something; to invent. Whilst dictionary definitions are not strictly necessary, as the word is a matter of ordinary English, for completeness, the relevant dictionary definitions are as follows: "fabricate ... 2. Invent (story), forge (document)": The Concise Oxford Dictionary "fabricate ... 3. to devise or invent (a legend, lie, etc.). 4. to fake; forge (a document)": The Macquarie Concise Dictionary 28The last of these statements conveys a meaning which is sufficiently different from the appellant being a Holocaust denier. A person who fabricates may do so in a number of respects. For example, a person may fabricate history about the Jewish pogroms in Russia in the early part of the nineteenth century and not be a Holocaust denier. Such a person may in fact agree that the Holocaust occurred. Another example might be that an historian has written a false history relating to the Boer War. 29Used in this sense, the assertion that a person fabricates history may have a different meaning from an assertion that a person denies something. Accordingly, with respect to the view of the primary judge, we have reached a different conclusion as to whether imputations (a) and (c) are in substance different. In our opinion, they are. 30That does not mean, however, that imputation (a) should be allowed to stand. The respondent, in a belated challenge, sought leave to file a notice of contention to affirm the judgment below on the following bases not relied upon by her Honour: "1. That imputation (a) ([the appellant] fabricated history) is not reasonably capable of being conveyed other than in the sense that [the appellant] denied the Holocaust; 2 That imputation (a) is imprecise." 31In our view, imputation (a) in its present form is too vague and imprecise. The comment, "people like [the appellant] engage in fabrication of history" was made in the context of a condemnation of "holocaust denials", or anti-Semitism, or both. It was not made in the broad and general sense that imputation (a) presently conveys. The respondent should not be required to defend such an imprecise and wide imputation. If the appellant wishes to rely on an imputation relating to the fabrication of history, he ought to be required to plead the imputation having regard to the context of the article as a whole. 32Accordingly, the appeal should be dismissed for the ground set out in the notice of contention. However, we would give leave to the appellant to replead imputation (a). The Court does not propose to specify the limits of that pleading further than the observations we made in the preceding paragraph. As each party had a measure of success on the appeal and notice of contention respectively, the parties should bear their own costs of the matter in this Court. 33Having regard to our reasons, we propose the following orders:

1. Leave to appeal granted;
2. Appeal dismissed;
3. Leave granted to the appellant to replead imputation (a);
4. Each party to pay his and her own costs of the summons for leave to appeal and the appeal. 34MEAGHER JA: The appellant, Dr Toben, sues three parties including Senator Milne for defamation by an article published in The Australian newspaper on 20 June 2013. The terms of that article are set out in the judgment of Beazley P and Ward JA, as are the imputations pleaded against Senator Milne. 35The primary judge struck out pleaded imputation (a) ("the plaintiff engaged in the fabrication of history") on the basis that it did not differ in substance from imputation (c) ("the plaintiff is a holocaust denier") and accordingly was not permitted by UCPR, r 14.30(3). Dr Toben appeals from that interlocutory order pursuant to leave granted by Macfarlan and Emmett JJA on 10 March 2014. 36Before the primary judge (McCallum J), the respondent argued that imputation (a) was vague and imprecise and for that reason should be struck out. The primary judge rejected that argument. Her Honour, however, accepted the respondent's alternative argument that properly understood that imputation did not differ in substance from imputation (c). 37UCPR, r 14.30(2)(a) requires that a plaintiff "specify each imputation" which is relied upon. That rule, and its predecessor (SCR, Pt 67, r 11), have been held to require the plaintiff to specify the act or condition claimed to be attributed to him or her by the matter complained of and to do so with sufficient precision as to avoid the likelihood of confusion as to the meaning for which the plaintiff contends: see Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137-138; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 162. 38As Hunt AJA later said in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [125], what the plaintiff "is obliged to do is to identify for the defendant in his imputation the act or condition which he will ask the jury to accept was understood by the ordinary reasonable reader as having been attributed to him by the matter complained of". 39Before the primary judge, it was argued on behalf of Dr Toben that the reported statement of Senator Milne that he had engaged "in fabrication of history", was to be understood as an allegation that he had "invented, faked or constructed history". Her Honour accepted that those words were capable of conveying that meaning but held that as used in the article, they were directed to a limited subject matter: "... the only sense in which the article is capable of conveying any such meaning is in the sense that the plaintiff's denial of the holocaust amounted to a fabrication of history. Imputation (a) must be struck out." 40Before this Court, Dr Toben's counsel took issue with her Honour's conclusion as to the subject matter to which imputation (a) was directed. He contended that the act attributed to Dr Toben and the subject of imputation (a), was fabricating history in connection with anti-semitism and holocaust denial. It was argued by reference to cases such as Hepburn v TCN Channel 9 Pty Ltd [1983] 2 NSWLR 682 at 688, 693, that imputations (a) and (c), the former to be understood in the broad sense for which Dr Toben contended, overlapped but nevertheless differed in substance. In response, counsel for Senator Milne submitted that understood in the sense in which her Honour had understood imputation (a), it did not differ in substance from imputation (c). 41The position taken by the parties in argument exposes the real difficulty with imputation (a). As formulated, it does not describe with any precision or at all, the subject matter of the acts of fabricating history said to have been attributed to Dr Toben. At the same time, it is argued on Dr Toben's behalf that the imputation conveyed was that he fabricated history when engaging in anti-semitism and holocaust denial. Senator Milne says that reasonably understood the article goes no further than attributing fabrication of history by the very act of holocaust denial. 42There is no issue as to the published matter being capable of giving rise to an imputation as to the fabrication of history. As I have said, the real question is whether imputation (a) is bad in form because it does not specify that imputation with precision so as to comply with UCPR, r 14.30(2)(a). The primary judge did not strike out the imputation for that reason. At the close of the oral argument, which eventually focussed on that question, the respondent applied for leave to file a notice of contention seeking to uphold the strike out order on the basis that imputation (a) is imprecise and alternatively on the basis that it is not reasonably capable of being conveyed other than in the limited sense contended for by Senator Milne. 43In my view, for the reasons appearing above, the primary judge's order should be upheld on the basis that imputation (a) was bad in form. Dr Toben is of course able to seek leave to amend. Should he do so, a question then may arise as to whether any amended imputation, pleaded with sufficient precision, differs in substance from imputation (c). The considerations relevant to the determination of that question are discussed by Beazley P and Ward JA in their reasons for judgment. 44In the result, the appeal should be dismissed. Because the basis on which the appeal has been dismissed only emerged towards the end of the oral argument, there should be no order as to the costs of the summons for leave to appeal or of the appeal.

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: 26 June 2014