HER HONOUR: These are proceedings for defamation concerning an article which appeared in The Sunday Telegraph newspaper on 3 May 2015. The proceedings are before the Court today for the first listing. This judgment determines objections taken by the defendant to the form of the pleading.
The article appeared under the headline, "Painter has Art Attack After Buyer 'Ruins' Work." The subject of the article was an allegation that the plaintiff, who had bought a five-panel art work by the acclaimed artist Del Kathryn Barton, had, contrary to the terms on which he purchased that art work, sold one of the five panels separately. The article focused on the reported "hurt and outrage" caused to the artist by the understanding that that was what had occurred.
It might be noted, for what it is worth, that the source of the article appears to have been the leaking of what ought to have been a private letter between Ms Barton's solicitor and the plaintiff. The article presents a prominent photograph of the artist in a pose suggesting her outrage at the events reported in the article. However, contrary to the impression created by that material, the conclusion of the article suggests Ms Barton did not contribute to its preparation, the article reporting that she did not return The Sunday Telegraph's calls in respect of the article.
In any event, the article is plainly capable of being defamatory of the plaintiff, the principal dispute being as to the form and capacity of a number of the many imputations he has specified in the amended statement of claim.
The first objection is that imputations 4(a), (b), (c) and (d) do not differ in substance from each other. Those imputations are:
(a) The plaintiff ruined an important Australian contemporary work of art.
(b) The plaintiff vandalised an important Australian contemporary work of art.
(c) The Plaintiff destroyed an important Australian contemporary work of art.
(d) The plaintiff deliberately inflicted severe damage on an important Australian contemporary work of art.
The careful submissions of Mr Molomby of Senior Counsel, who appears for the plaintiff, have persuaded me that whilst the distinction between the discrete attributions in those imputations may be subtle or nuanced, there is a difference which is potentially important for the plaintiff in the context of the very subjective kinds of issues raised by the matters reported in the article. I propose to allow each of those four imputations to stand.
The next objection is to imputation 4(e), which is:
The plaintiff breached the contract by which he bought an important Australian contemporary work of art.
Mr Lewis, who appears for the defendant, objected first to the form of the imputation, but that objection will be met by consent by an amendment adding words specifying the nature of the breach. Separately, it was objected that the imputation was "not defamatory". As elaborated in oral submissions, it was confirmed that the defendant contends the imputation is not capable of being defamatory. Whilst it is plainly not the most serious imputation in the calendar of defamatory attributions, I am not persuaded that an allegation of breach of contract is incapable of being defamatory. That is properly a question for the jury.
Mr Lewis submitted that the ordinary reasonable reader would understand that a breach of contract may involve no default or moral or other culpability on the part of the person breaching it, since a contract can be breached in circumstances of, for example, the legal notion of non est factum. I do not think the ordinary reasonable reader should be taken to read an article of this kind with that degree of lawyerly precision. The imputation will go to the jury.
The next objection is to imputation 4(f), which is:
The plaintiff infringed the moral rights of the creator of an important Australian contemporary work of art.
The defendant objects on the grounds of form, submitting that it is not clear what is meant by the term "creator", that being a term which does not appear anywhere in the matter complained of and one which gives rise to ambiguity. Specifically, it was submitted that it is a term inconsistent with the language of the Copyright Act 1968 (Cth) which attributes moral rights in a work to "authors" and does not use the term "creator".
Mr Molomby, after some debate, acceded to the suggestion that, having regard to the content of the matter complained of, which does specify a particular moral right (namely the right not to have work subjected to derogatory treatment), the imputation might be amended by specification of that particular moral right. Absent such clarification, in my view the imputation is insufficiently precise by reason of the inclusion of the term moral rights. When that term is clarified in the manner accepted by Mr Molomby, however, I think the meaning of the term "creator" is sufficiently clear. The article plainly attributes Ms Barton with being the artist who created the five-panel work which it discusses.
Separately, as with imputation 4(e), Mr Lewis submitted that the imputation is not defamatory of the plaintiff, which I took to be an argument that it is not capable of being defamatory of him. I do not accept that argument. Whilst views might differ as to the measure of opprobrium to be attached to a person who engages in the conduct attributed to the plaintiff in the imputation, I think it is plainly a jury question whether it is defamatory of him.
The next objection is to imputation 4(g), which is:
As an art collector the plaintiff cannot be relied on to honour his contracts.
The plaintiff's reliance on that imputation raises the vexed question of when an article which carries a specific attribution is capable of also conveying a general attribution. That is certainly the position with the present article, which reports in specific detail only a particular instance of alleged breach of contract by the plaintiff.
I am mindful of the high test a defendant must meet in order to have an imputation struck out as being incapable of being conveyed. The relevant authorities are well known. However, in the present case, I think the general attribution that, by reason of the single alleged breach of contract reported in the article, the plaintiff cannot be relied upon to honour his "contracts" is simply incapable of being conveyed other than as a conclusion drawn by the reader from his or her own views or outside knowledge, rather than from the words of the matter complained of. Imputation 4(g) will be struck out.
Imputation 4(h) is that:
As an art collector the plaintiff may damage works of art he acquires.
The defendant objected to that imputation on the grounds of form, capacity and the contention that the imputation "of itself" is not defamatory of the plaintiff. The objection raises an issue which is similar, but not identical, to the issue considered in my judgment in Alex v Gridneff [2013] NSWSC 2025, in which coincidentally Mr Molomby also appeared. The imputation objected to in that case was, "there is a possibility that the plaintiff is the person who arranged for the visit to Mr Steve Mitrovic's premises of a group of men carrying a firearm during which visit Mr Mitrovic was shot." The objection in that case was that an imputation which merely attributes the possibility that a particular person carried out a known act is bad in form because it fails to specify with sufficient clarity any act or condition attributed to the plaintiff.
I recognise that the imputation in the present case is different because the uncertainty is not as to the identity of the perpetrator of a known act but as to whether a particular discreditable act might be committed by the plaintiff in the future. Even so, the authorities I considered in Alex v Gridneff conduce me to the conclusion that the present imputation is bad in form for imprecision. Mr Molomby sought to defend the imputation by reference to the notion that it is clear enough and defamatory of a person to attribute him or her with the condition of posing a risk of committing certain conduct in the future. An appropriately worded imputation might satisfy that proposition. In the present case, however, all the imputation really does is to identify a risk of a possible future event which, if it occurred, might or might not be discreditable. The imputation does not identify the prospect that the future uncertain conduct would clearly be discreditable conduct. It has, in that respect, an ambiguity in that, on one view, it says no more than that as an art collector, the plaintiff might accidentally damage works he acquires. Further, it says nothing as to the nature of the risk. Greater specificity, such as the identification of an imputation that the plaintiff was the sort of person who had so little regard for art that he might deliberately damage works he acquired, might come closer to the kind of proposition I understood Mr Molomby to contend for. The present imputation is, in my view, bad in form and must be struck out.
Imputation 4(i) is that:
As an art collector the plaintiff has inadequate regard for the rights of the artist.
The defendant objects to that imputation on the grounds of form, submitting that the term "inadequate" fails adequately to distil the precise act or condition allegedly attributed to the plaintiff. In my view there is force in that submission. The word "inadequate" is a term of indeterminate reference or, which is probably worse, a term which raises the need for evaluative judgment. It provides no objective measure by which the parties or the tribunal of fact can measure the conduct allegedly attributed to the plaintiff. That imputation will be struck out.
Imputation 4(j) is that:
The plaintiff is unsuitable to be an art collector.
It was indicated during argument that that imputation will be relied upon by the plaintiff as a fall back to imputation 4(k) which is:
The plaintiff is a disreputable art collector.
Each imputation is objected to on the grounds of form. As to imputation 4(j), the defendant submitted that an imputation of unsuitability fails to provide sufficient clarity as to what act or condition is allegedly attributed to such a person. Mr Molomby submitted that the imputation acquires its defamatory sting, notwithstanding the uncertainty as to what kind of person would be suitable to be an art collector, from the fact that the plaintiff is in fact an art collector. In other words, as I understood the submission, the imputation is to be read as being in the nature of an attribution that the plaintiff is unsuitable for an occupation in which he currently engages. Even so, in my respectful opinion, the imputation is problematic. It might be defamatory of a person who held a statutory position to say that he or she was unsuitable for that role but there are no objective or well-known criteria by reference to which the ordinary reasonable reader would judge a person's suitability to be an art collector. I find myself unable to understand precisely what is meant by the imputation and on that basis have concluded that it is ambiguous and should be struck out.
Similarly with imputation 4(k), it is not clear to me what is attributed to a person in saying that he or she is disreputable as an art collector as opposed to simply being a disreputable person. Mr Molomby sought to defend that imputation by reference to the analogy of the attribution that a person is a disreputable barrister; however in the case of a barrister he or she is a person whose role is to serve the interests of a client against a well-known series of rules and expectations. It is not clear to me what would make an art collector, or any particular art collector, reputable or disreputable. Were the imputation to be subjected to greater specificity it would, I apprehend, only take one back to the six existing imputations which I have indicated will be allowed to stand. The article is quite specific. It reports a single instance of what some might regard as disreputable conduct, but there is a real question as to whether one disreputable act a disreputable art collector makes.
For those reasons the rulings are that imputations 4(a) to (f) will go to the jury and imputations (g) to (i) will be struck out.
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Decision last updated: 05 December 2016