Viney v TCN Channel Nine Pty Ltd

Supreme Court of NSW|2006-09-11|Before: Simpson J

CITATION : Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273

DECISION : imputations (1), (2), (3), (4) and ( 9) allowed to stand; imputation (5) does not differ in substance from imputations (7) and (8), plaintiff to elect on which to go to the jury; imputation (6) struck out, plaintiff has liberty to replead; imputation (8) struck out, plaintiff has liberty to replead

CATCHWORDS : defamation - television programme - nine imputations - defendant objections to imputations - separate trial pursuant to UCPR 28.2 - "rolled-up" or "composite" imputations - "rhetorical" imputations - difference of substance

LEGISLATION CITED : Supreme Court Rules 1970 pt 67, r11(3) Uniform Civil Procedure Rules 2005 r14.30(3), r28.2

Dawson v ACP Publishing Pty Ltd [2002] NSWSC 712 Feros v West Sydney Radio Pty Ltd NSWCA, unreported, 22 June 1982 Grubb v Bristol United Press Ltd [1963] 1 QB 309 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 CASES CITED : Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 Lewis v Daily Telegraph [1964] AC 234 Morosi v Mirror Newpapers Ltd [1977] 2 NSWLR 749 Morris v Newcastle Newspapers Pty Ltd [1985] 1 NSWLR 260 Packer v Channel 7 Sydney Pty Ltd NSWSC, unreported, 12 May 2006

PARTIES : Leanne Viney - Plaintiff TCN Channel Nine Pty Ltd - Defendant

COUNSEL : RG McHugh - Defendant

SOLICITORS : SJ Titus, Carneys Lawyers - Plaintiff Gilbert & Tobin - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUDGMENT: separate trial of issues concerning imputations 1 HER HONOUR: These proceedings were commenced by originating application and statement of claim filed in the Supreme Court of the Australian Capital Territory on 22 July 2002. An amended statement of claim was filed in that Court on 17 May 2003. On 14 May 2004, by consent of the parties, the Supreme Court of the ACT transferred the proceedings to this Court. 2 The originating application and both the statement of claim and the amended statement of claim named two plaintiffs, identified as The Country Contact Club Pty Ltd (the first plaintiff) and Leanne Viney (the second plaintiff). At the same time as the proceedings were transferred, the first plaintiff discontinued. 3 The proceedings arise out of the publication, by the defendant, on 22 May 2002, of an item on a television programme known as "A Current Affair". For present purposes it is not in issue, and may be assumed, that the plaintiff's allegation that the defendant was responsible for the telecast is correct. 4 A transcript (also not presently in issue) of the programme is annexed to the amended statement of claim. It is from that document that I draw the following outline. The second plaintiff pleaded that the telecast conveyed nine imputations that defamed her. 5 By letter dated 25 May 2006 addressed to the second plaintiff's solicitors, the solicitors for the defendant raised a series of objections to the imputations. They challenged the capacity of the telecast to convey one of the imputations pleaded (the third). The remaining objections were as to the form in which the various imputations were framed. 6 The plaintiff's solicitors rejected the objections. This, therefore, is a separate trial, pursuant to UCPR 28.2, of the question so raised. 7 The subject matter of the programme was the business activities of the first-named plaintiff, to which (since it is no longer a party) I will refer as the company. The second plaintiff, Ms Viney, was (as pleaded in the amended statement of claim) the manager of the company. According to the content of the telecast, the company conducted an introduction agency. The theme of the telecast was that the company, and the second plaintiff, exploited lonely and vulnerable men, by promising introductions to glamorous women, by taking large amounts of money from them, but failing to honour the promise to arrange the introductions. A number of men apparently appeared on the telecast, complaining of the manner in which the company operated, and of the sums of money they had paid, with no result. 8 The second plaintiff also apparently appeared on the screen. She was dubbed "the queen of broken dreams". She is recorded as denying having charged the men "thousands of dollars". 9 One man, identified as Tony Forrest (said to be intellectually disabled, partially deaf, and epileptic) was shown outside the company's offices saying: "You're a bunch of thieves like everybody else." Another, Lawrence Sing, claimed that, on four separate occasions, he had paid the company sums of money totalling $10,740. 10 There was much more, to some of which it will be necessary in due course to refer. 11 The imputations pleaded are framed as follows: "(1) That the second plaintiff is an unprincipled and dishonest person; (2) that the second plaintiff is a liar; (3) that the second plaintiff conducts herself as manager of the first plaintiff in such a manner that she is a thief; (4) that the second plaintiff conducted herself as manager of the first plaintiff so as to unfairly take advantage of lonely and vulnerable persons as customers of the first plaintiff; (5) that the second plaintiff is responsible as manager of the first plaintiff for systematically cheating customers out of large amounts of money; (6) that the second plaintiff manages the first plaintiff's business so that it is carried on as a lucrative racket; (7) that the second plaintiff conducted herself as manager of the first plaintiff so as to cheat customers out of large amounts of money by lies and deception; (8) that the second plaintiff conducted the business of the first plaintiff so as to deceive clients into agreeing to take services from the first plaintiff by falsely pretending that women whose photographs appeared in the first plaintiff's particulars were available for introduction to its clients; (9) that the second plaintiff conducts the business of the first plaintiff so unfairly and dishonestly that the business should be closed down." 12 It is convenient to deal with the objections to each imputation in the same numerical sequence.

Imputation (1): that the second plaintiff is an unprincipled and dishonest person 13 Three objections were taken to this imputation. They were: · the imputation is a "rolled-up" or "composite" imputation containing two separate components and is, accordingly, impermissible; · the word "unprincipled" is vague and imprecise; · the imputation is rhetorical. 14 Further complaint was made that this imputation does not differ in substance from imputation (9). 15 In support of the proposition that the imputation cannot stand because it is a "rolled-up" or "composite" imputation, counsel for the defendant relied upon the decisions of this Court in Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 (per Hunt J) and Dawson v ACP Publishing Pty Ltd [2002] NSWSC 712 (per Levine J). Neither of these cases contains anything to advance the argument in respect of this imputation. In Hepburn, Hunt J extracted a passage from an earlier decision of the Court of Appeal (Feros v West Sydney Radio Pty Ltd, NSWCA, unreported, 22 June 1982). The Court said in Feros that SCR Part 67 r11(3) (the rule which prohibited the pleading of one or more imputations that do not differ in substance from one another, now reproduced in UCPR 14.30) did not justify or entail rolling up a number of separate and independent defamatory assertions into one imputation. But what exactly is a "rolled-up" or "composite" imputation? The Court in Feros did not define or elucidate in what circumstances an imputation could be said to combine more than one defamatory meaning. Nor, to my knowledge, has there been any attempt to define what is a "rolled-up" or "composite" imputation. Indeed, the remark was peripheral to the issue the Court was then discussing; no issue arose directly in Feros concerning any allegedly "rolled-up" imputation. The remark was made in the course of general observations about the formulation of imputations. One approach, in my opinion, is to identify whether what is contained in the imputation attributes to the plaintiff more than one condition or quality that are independent of one another; or whether, even where multiple adjectives or descriptors are used, they, in combination, express a single (even if composite) condition or quality. 16 In Dawson, Levine J had before him an imputation that was pleaded in the following terms: "That she [the plaintiff] behaved towards her husband Scott Miller, the world class swimmer, in such a way as to shatter his career, bring a looming divorce, demolish his confidence and leave him a changed man." 17 The defendant in that case complained on a number of grounds of the imputation as pleaded, one of which was that it was a "rolled-up" or "composite" imputation, containing no less than four separate components. Levine J accepted that submission, as he did the other submissions made on behalf of the defendant. He did not explain why he accepted that part of the defendant's argument. In any event, it can be seen that the concepts contained in the imputation pleaded in Dawson were very much more complex than the concepts contained in the present imputation. 18 In my opinion the correct approach is to identify whether or not the imputation is intended to convey a single characteristic of the plaintiff (as portrayed through the matter complained of), even if that characteristic is made up of more than one component, or whether it is intended to convey two separate and distinct characteristics of the plaintiff. Here the two words - "unprincipled" and "dishonest" - are not synonymous but are capable of containing significant overlap. 19 It would, of course, be possible for the plaintiff to plead two separate imputations, one that she was dishonest, and one that she was unprincipled. One wonders whether such a pleading would be met with a complaint that the two imputations did not differ in substance. 20 I have, with some hesitation, come to the view that the imputation does not fail for this reason. In my opinion "unprincipled" and "dishonest" are capable of conveying a notion of a characteristic of the plaintiff' which is not adequately conveyed by either word individually, nor, indeed, by two separate imputations pleading the two characteristics. 21 I reject the complaint that the imputation is defective because it is "rolled-up" or "composite", or incorporates two independent defamatory allegations. 22 The next complaint is that the imputation is "rhetorical". No argument was advanced to support that description. Reliance was placed upon another decision of Hunt J, Morris v Newcastle Newspapers Pty Ltd [1985] 1 NSWLR 260. At 272 his Honour was considering an imputation: " … that the plaintiff was not a fit and proper person to be a member of the Federal Parliament" His Honour did characterise this imputation as "rhetorical", but did not explain what he meant by it. He recorded an admission by the plaintiff that the imputation was intended to be "no more than a rhetorical flourish". Again, in the authorities to which I was referred, imputations were sometimes characterised as "rhetorical", but there has been no attempt to pin down the meaning of that expression, or to establish what amounts to a "rhetorical" imputation. The Macquarie Dictionary (Limited Edition, 1985) gives three meanings of "rhetorical": "1. belong to or concerned with mere style or effect; 2. having the nature of rhetoric; 3. overelaborate, bombastic in style." 23 Reference to the decision of the Court of Appeal in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771 (cited by Hunt J, in this context, in Morris (see p 272)), suggests that the term is used to denote repetitive imputations, not differing in substance one from another, a pleading practice prohibited, first by SCR Pt 67 r11(3), and now by UCPR 14.30(3): see also Grubb v Bristol United Press Ltd [1963] 1 QB 309, at 328, 329; and Lewis v Daily Telegraph [1964] AC 234 at 278, (where the pleading of true innuendo in addition to the natural and ordinary meaning of the words in the matter complained of was criticised as "rhetorical"), both also cited by Hunt J in Morris. 24 If that is what is meant by "a rhetorical imputation", a complaint to that effect merely duplicates a complaint that the imputations in question fall foul of the rule. In my opinion, the time has come for defendants' counsel to bury the practice of attacking imputations pleaded by plaintiffs on the basis that they are "rhetorical"; alternatively to specify precisely what they mean by the epithet. Otherwise, the complaint is, itself, mere rhetoric. 25 In my opinion an expression which is rhetorical is one that has little content or substance, but comes with a good deal of prejudicial flourish. I can readily understand how a publication may be said to be "rhetorical". It is more difficult to see how an imputation can be rhetorical, unless, as I suggest, it merely means repetitive. There is, in my opinion, nothing "rhetorical" about the terms of this imputation. I would reject this challenge. 26 A further complaint was made that the word "unprincipled" is vague and imprecise. I would also reject this. A jury will be well able to understand what is meant by the word "unprincipled". If, by chance, it does not, then it would be expected that it would not find the imputation conveyed. 27 That leaves the question of whether imputation (1) differs in substance from imputation (9). In my opinion there is sufficient difference between the two imputations. Imputation (1) is directed to the second plaintiff's character; imputation (9) is directed to the manner in which she conducted the business of the company. It is, therefore, a rather narrower imputation than the first, although it attributes to her a manner of conducting business based upon the same aspect of her character that is the subject of imputation (1). One way of testing whether two imputations differ in substance, perhaps, is to ask whether a jury might, without inconsistency, find one imputation conveyed and the other not conveyed. In my opinion it would be open to a jury to find that the telecast conveyed an imputation that the plaintiff conducted the business of the company unfairly and dishonestly, without going to so far as to find that it conveyed the further imputation that she was an unprincipled and dishonest person. The two must therefore differ in substance. 28 I will not interfere with imputation (1).

Imputation (2): that the second plaintiff is a liar 29 Again, it was argued that this imputation is "rhetorical" and therefore bad in form. I reject this. This imputation asserts that the telecast attributed to the plaintiff a characteristic which is well understood. There is nothing rhetorical about it in any sense in which that word might be understood. 30 It was also argued that this imputation does not differ in substance from imputation (7), which, for convenience, I will reproduce: "that the second plaintiff conducted herself as manager of the first plaintiff so as to cheat customers out of large amounts of money by lies and deception". 31 For the reasons given in relation to imputations (1) and (9), I reject this contention. Imputation (2) is directed at the second plaintiff, and her characteristics or qualities. Imputation (7) is more narrowly based, directed to the manner in which she carried on the business of the company. It is true that one of the specific methods attributed to her in the carrying out of that business was the use of lies (and deception), but this does not mean that this imputation is substantially coextensive with the first. 32 Imputation (2) will be allowed to stand.

Imputation (3): that the second plaintiff conducts herself as manager of the first plaintiff in such a manner that she is a thief 33 The only argument advanced in relation to this imputation is that the matter complained of is incapable of conveying the imputation. In the light of the passage extracted above, attributed to Tony Forrest, standing outside the offices of the company and saying: "You're a bunch of thieves like everybody else", I am satisfied that the imputation is capable of being conveyed. It is made plain that the second plaintiff is the manager of the first plaintiff, and heavily involved in its administration, including the very conduct under attack; and there is no doubting the accusation of dishonest acquisition of money on the part of the company. 34 There are other passages in the matter complained of, such as the following: "But first, the matchmaker accused of milking lonely men out of tens of thousands of dollars and not delivering what she promises." "He (Robert Smirthwaite) says that people behind the introduction agency … on the Gold Coast conned him out of an incredible $100,000 by promising to find the woman of his dreams. Instead it delivered nothing but heartache." (Apparently speaking directly to the second plaintiff) "For some of them this is the last of their savings that your staff have conned them into handing over." 35 I am satisfied that the matter complained of is capable of conveying this imputation.

Imputation (4): that the second plaintiff is responsible as manager for the first plaintiff so as to unfairly take advantage of lonely and vulnerable persons as customers of the first plaintiff 36 The complaint about this imputation is the asserted vagueness and imprecision of the word "unfairly", and the asserted ambiguity of the word "responsible". Further complaint was made that this is a "rolled-up" or "composite" imputation, and impermissible for the reasons previously argued. I do not think there is anything vague or imprecise about the word "unfairly". As to the word "responsible", counsel for the defendant relied upon the decision of Nicholas J in Packer v Channel 7 Sydney Pty Ltd, unreported, 12 May 2006. 37 There the imputation in question was framed as: "That the plaintiff was just as guilty as Jodie Rich for the collapse of One.Tel". During argument, apparently, there was some discussion about the meaning of the word "guilty", and some consideration was given to whether that word was used in the sense of "responsible". It was in this context that Nicholas J held that "responsible" was not a word of clear import, but capable of conveying different ideas. His Honour had already held that: "12 The real issue 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 ( Whelan v John Fairfax and Sons Ltd (1998) 12 NSWLR 148, p 145 …)" 38 The use of "responsible" as a substitute or equivalent for "guilty" is in quite a different category to the use of the word in this imputation. Here what is attributed to the second plaintiff is responsibility as manager of the company in such a way as to take unfair advantage of lonely and vulnerable persons who are the company customers. There is nothing ambiguous about the use of the word in that way. I reject this complaint about imputation (4). 39 For the reasons already given I reject the complaint that the imputation is "rolled-up" or "composite".

Imputation (5): that the second plaintiff is responsible as manager of the first plaintiff for systematically cheating customers out of large amounts of money 40 The same complaints, in effect, were made of this imputation, as were made of the previous one and must meet with the same results. 41 Complaint was also made that the imputation does not differ in substance from imputations (7) and (8). This complaint is made good. There is no difference of substance in what is attributed to the second plaintiff in each of the three imputations. The second plaintiff will have to elect on which she wishes to go to the jury.

Imputation (6): that the second plaintiff manages the first plaintiff's business so that it is carried on as a lucrative racket 42 The words "lucrative racket" are drawn directly from the transcript of the telecast. At a fairly early stage in the item the reporter is recorded as saying: "This is the woman who oversees this very lucrative racket. Her name is Leanne Viney, but she goes under the aliases of Lana Viney and Lisa Winters." 43 Two complaints are made of this imputation. The first is that the words "lucrative racket" are vague and imprecise; the second that it is insufficient merely to plead the words in an imputation that are taken directly from the matter complained of. In Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255, Hunt AJA criticised strongly (as he had previously done) the pleading practice of framing imputations in terms drawn directly from the matter complained of. Notwithstanding the force and generality with which Hunt AJA expressed himself, there remain many cases where the act or condition attributed to the plaintiff by the matter complained of is precisely and eloquently contained in that matter and the pleader can do no better than to adopt it. This is apparent from the decision in Feros, (cited by Hunt AJA) where Samuels JA said: "But an attack on the form of an imputation is not necessarily repelled merely because the ingredients of the imputation appear in the matter published … It is not always sufficient that an imputation should repeat the language of the matter published. Sometimes that will be enough, but more often an imputation must distil rather than recapitulate." 44 However, this is not a case where the words published are adequate. The words "lucrative racket" have more than an element of the colloquial about them and are, in my opinion, unsuited to the formality required when pleading legal documents. They are, I accept, insufficiently precise for that purpose. Imputation (6) will be struck out, with liberty to replead.

Imputation (7): that the second plaintiff conducted herself as manager of the first plaintiff so as to cheat customers out of large amounts of money by lies and deception. 45 The first complaint about this imputation is, again, that it is "rolled-up" or "composite". The only possibility of separate components that I can see is the use of "lies" and "deception" attributed to the second plaintiff. This is not a valid complaint. I reject it. 46 A further complaint is that this imputation does not differ in substance from imputations (2), (5) and (8). 47 I am satisfied that the imputation does differ in substance from imputation (2). This is, essentially, for the same reasons as I have given in relation to earlier imputations. There is a difference, but not one of substance, between this imputation and imputation (5). It is only the specification of "lies and deception" as the means by which the second plaintiff is said to have achieved the purpose of cheating customers out of large amounts of money that distinguishes it from imputation (5). That is, in my opinion, a difference not of substance, but of detail. The second plaintiff will have to elect on which of these imputations to proceed; alternatively, she may rely on them as alternatives. 48 Although imputation (8) is directed to particulars of how the second plaintiff is said to have conducted the business of the company, and to have achieved her allegedly cheating purpose, and imputation (7) is in more general terms, this does not create a difference in substance.

Imputation (8): that the second plaintiff conducted the business of the first plaintiff so as to deceive clients into agreeing to take services from the first plaintiff by falsely pretending that women whose photographs appeared in the first plaintiff's particulars were available for introduction to its clients 49 The complaint about this imputation is that the words "pretending" and "particulars" are vague and imprecise. 50 The first complaint is of no substance. While it may be unnecessary to qualify "pretending" by "falsely", there can be little doubt about what is meant. However, the second complaint is of more substance. It is not clear what is intended by the reference to photographs appearing in the company's particulars. This imputation will be struck out. The second plaintiff will have liberty to replead.

Imputation (9): that the second plaintiff conducts the business of the first plaintiff so unfairly and dishonestly that the business should be closed down 51 Again, the complaint is that the imputation is "rolled-up" or "composite" containing two separate components. It is unnecessary to say more about this. The argument meets the same fate as the same argument has earlier met. Imputation (9) will be allowed to stand.

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