Contextual Imputation (ii)
9 The defendant's contextual imputation (ii) is that "the plaintiff is a criminal". The plaintiff maintains that such an imputation does not specify the act or condition attributed to the plaintiff. The defendant must express each contextual imputation with the same precision as the plaintiff is obliged to exercise in the formulation of imputations. In Marsden v Amalgamated Television Services Pty Limited (unreported, 4 May 1998) Levine J said this: (at 22)
"The word 'imputation' in s16 has no different meaning to the word 'imputation' in s9. The word 'specify' in Pt67 r11(2) can have no different meaning to the word 'specify' in SCR Pt67 r15(b)."
10 To specify is "to state categorically, explicitly or particularly the defamatory meaning" (per Samuels JA in Feros v West Sydney Radio Pty Limited (C of A, unreported, 22 June 1982)). On the plaintiff's argument there is no such specification in an assertion that the plaintiff is a criminal. Crime, like corruption, covers many different forms of conduct. The defendant, therefore, must specify (as the plaintiff has done) the sense in which it employs the term "criminal".
11 As I understand the plaintiff's submission, I am not being asked to determine whether the imputation is capable of arising from the matter complained of. Rather, the issue is whether the pleading should be struck out under Pt15 r26(1)(b) of the Rules, as tending to cause prejudice, embarrassment or delay in the proceeding (cf Priestley JA in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 154). The plaintiff asserts that the defendant is obliged to specify the precise meaning for which it contends, and, if more than one meaning, each such meaning.
12 My attention was drawn to the remarks of Gleeson CJ in Drummoyne Municipal Council (supra). Although speaking of imputations pleaded by the plaintiff, the comments of the Chief Justice have application to contextual imputations. He said this: (at 137)
"The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology."
13 The Chief Justice then made it clear that the manner in which the defendant had expressed the defamatory publication was relevant to a determination of the requirement for specificity. The test to be applied is whether the formulation chosen by the plaintiff (in the case of an imputation), or by the defendant (in the case of a contextual imputation), is likely to be a source of confusion. Gleeson CJ (at 138) agreed with the following formulation of that test by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155:
"… The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends."
14 The plaintiff argued that the programme itself was quite specific. It did not resort to generalities to describe the plaintiff (which might, in other circumstances, justify a contextual imputation that the plaintiff was a criminal). The plaintiff, indeed, has taken up the specific matters conveyed by the telecast, and incorporated them into his imputations.
15 Before the defendant can rely upon contextual imputations, they must each satisfy the test, as formulated by Hunt J in Hepburn v TCN Channel 9 Pty Limited (1984) 1 NSWLR 386, including the following requirement: (at 400)
"Is the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which it is or they are pleaded as a defence?" (emphasis added)
16 The defendant responded to these arguments by asserting that the plaintiff had misunderstood what was being said by the Court in the Drummoyne Municipal Council v Australian Broadcasting Corporation (supra). It is perfectly permissible for both the plaintiff and the defendant to plead either, or both, general and specific imputations, arising out of the same material (Hunt J, Singleton v John Fairfax & Sons Ltd (unreported, 20 February 1980); cf Hunt J Hepburn v TCN Channel 9 Pty Limited at 397, 398).
17 The issue, according to the defendant, is not whether a general imputation is permissible. It is. The issue is whether the formulation chosen by the defendant in its contextual imputation is likely to cause confusion. Confusion, on the defendant's argument, can only arise where there is ambiguity. Here, the defendant asserts there is no such ambiguity. The ordinary reasonable viewer would understand Mr Vella to be a criminal.
18 I believe, however, that the word "criminal", like the word "corrupt", is capable of a number of different meanings. A person may, on one view (and I am dealing with the issue of capacity), be described as a criminal if he or she has been convicted of a criminal offence. There is room for an alternative view that, before a person can be so described, the conviction must be for a serious criminal offence. I believe that the term may also be employed to describe someone who makes his or her living from crime. I am sure that there are many other meanings besides. Indeed, the meaning may turn upon the nature of the crime committed. Some people may hesitate to call a tax evader a criminal, whereas others may not. The defendant must specify precisely what meaning it contends the ordinary reasonable viewer would have understood upon viewing the programme. Not to do so may, in my view, lead to confusion. For instance, in establishing the substantial truth of the contextual imputation, what evidence could the defendant introduce? How remote might such evidence be from what is asserted in the programme? The contextual imputation (ii), in its present form, may, I believe, simply provide a vehicle for the defendant to mitigate damages. Hunt J, in NRMA Insurance Limited v Amalgamated Television Services Pty Limited (unreported, 14 July 1989) said this:
"What must be emphasised is that this defence of contextual truth provides a defence to the plaintiff's causes of action. It does not provide the defendant with the opportunity of being able to do what it used to be able to do before, to put before the jury evidence which establishes in effect no more than that it almost got it right, with the object of reducing the amount of damages awarded. It is clear (for example, from s47 of the Act) that a defendant is not entitled to lead such evidence merely in mitigation of damages. The only evidence of truth which it may lead for that purpose is evidence of the truth of the imputation or imputations pleaded by the plaintiff."
19 I therefore strike out imputation (ii).
20 Should the defendant be given liberty to re-plead imputation (ii)? The programme, to my mind, is not speaking of trivial crime, nor isolated behaviour. The plaintiff has chosen, in his imputations, to take up the specific crimes referred to in the programme. It is open to the defendant, if it chooses, to plead a contextual imputation which is more general, and yet specifies the criminal behaviour or characteristic attributed by the telecast to the plaintiff. I therefore give liberty to re-plead imputation (ii).