Whelan v John Fairfax & Sons Ltd

COUNSEL : Plaintiff - Mr C. Evatt Defendants - Mr T. Blackburn SOLICITORS : Plaintiff - Teakle Ormsby Conn Defendants - Mallesons Stephen Jaques CATCHWORDS : DEFAMATION - Imputations - Application for leave to amend pleadings LEGISLATION CITED : Supreme Court Rules 1970 CASES CITED : Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 DECISION : 1. The plaintiff is to provide discovery of all documents in support of his claim for economic loss including but not limited to all income tax returns (both personal and in relation to the plaintiff's business or businesses and any other source of income the plaintiff had), bank account statements, wage slips, deposit books, accounting and business records, records of expenses, financial plans, profit and loss statements and balance sheets for the period 1 January 1988 to 5 June 2000 by 5.00pm Friday 9 June 2000; 2. The plaintiff is to file a Third Further Amended Statement of Claim in accordance with these reasons by 5.00pm Thursday 8 June 2000; 3. Leave is granted to plead imputations 3(i)(a); 3(ix)(a); 3(xii); and 3(xiv) in the proposed Third Amended Statement of Claim; 4. Leave is not granted to plead imputations 3(ii), 3(iv) and 3(xiii) in the proposed Third Amended Statement of Claim; 5. Leave is not granted to plead imputation 3(xi) in the form it appears in the proposed Third Amended Statement of Claim but I grant leave to replead this imputation.

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

JUDGMENT 1 HER HONOUR: On Wednesday 31 May 2000 I made orders in this matter as follows:

1. Leave is granted to the defendants to file an Amended Defence to the Further Amended Statement of Claim pleading justification and contextual justification,

2. The plaintiff's claim of $1000 per week damages in economic loss is struck out,

3. The plaintiff's claim of damages for psychiatric disability is struck out,

4. Imputation 3(ii) is struck out and the plaintiff is granted leave to replead it,

7.Imputation 3(vii) is struck out and the plaintiff is given leave to replead it,

8. Imputation 3(viii) is struck out and the plaintiff is given leave to replead it.

3 The proceedings were commenced by Statement of Claim filed on 21 May 1998. The following day an Amended Statement of Claim was filed in terms identical to the original save for the addition of the second defendant as a party to the proceedings. 4 The defendants took a number of objections both as to the form and the capacity of the imputations pleaded in the Amended Statement of Claim. On 13 November 1998 Levine J gave judgment on the separate trial of that issue. Leave was given to the plaintiff to file a further amended statement of claim pleading imputations in accordance with His Honour's reasons. 5 On 23 November 1998 the plaintiff filed the Further Amended Statement of Claim. Thereafter the matter appears to have been restored to the defamation list and on 5 February 1999, by consent, a timetable was fixed. On 1 March 1999 the Defence to the Further Amended Statement of Claim was filed on behalf of the defendants. On 24 March 1999 the plaintiff filed his Reply. Thereafter the matter was stood over by consent for argument in the defamation list on a number of occasions. On 4 February 2000 the matter was in the call-up list. On that date it was fixed for trial on Monday 19 June 2000 (with an estimate of ten days).

6 On 12 May 2000 the matter was before Levine J in the defamation list. On that occasion the defendants notified their intention to seek to amend their defence to plead justification. His Honour granted leave to the parties to approach the List Judge to obtain a date on which these matters might be dealt with. 7 The matter came before me on 25 May 2000 by notice of motion filed on behalf of the defendants. The defendants sought a number of orders including an order that they be granted leave to file an amended defence pleading both justification pursuant to s 15 of the Defamation Act 1974 ('the Act") and contextual justification pursuant to s 16 of the Act. Orders were also sought striking out particulars of the plaintiff's claim (relating to damages) and challenging the imputations pleaded in the Further Amended Statement of Claim. 8 On the hearing of the motion Mr Blackburn, who appeared for the defendants read the affidavit of Rebecca Barnett sworn 24 May 2000. Exhibited to that affidavit are copies of the extensive correspondence between the parties which set out something of the history of the matter. 9 The plaintiff's claim arises out of the broadcast, by television station BTQ7, on 26 May 1992 of a segment on the "Real Life" program. A transcript of the programme is Annexure "A" to the Further Amended Statement of Claim. I viewed the programme during the course of the hearing on 25 May 2000. Generally, it related to fire safety standards in backpacker hostels said to have been run by the plaintiff. The style of the programme was sensational. 10 In the Defence to the Further Amended Statement of Claim, filed by the defendants on 1 March 1999, defences of qualified privilege both at common law and pursuant to s 22 of the Act are pleaded. 11 Mr Blackburn submitted that the decision to seek leave to plead justification at a late stage in the proceedings flowed from material coming to light from the Queensland Fire Service and the Metropolitan Fire Brigades Board. Annexure "A" to the affidavit of Ms Barnett is a report of the Queensland Fire Service dated 9 June 1992 ("Report A"). Ms Barnett deposes to Report A as having been produced on subpoena by the Gold Coast City Council on 3 April 2000. It was discovered by the plaintiff on 4 May 2000. Annexure "B" to Ms Barnett's affidavit is a report of the Metropolitan Fire Brigades Board dated 21 September 1988 ("Report B"). Report B was discovered by the plaintiff on 4 May 2000. 12 Report A is described as a Building Survey Report. It related to an inspection of premises known as the Backpackers United Club Walkabout which were located in Whelan Street, Surfers Paradise and were (as at the date of the report) operated by the plaintiff as a backpackers' hostel. The Report identified a number of suggested deficiencies in the fire safety precautions in place at the premises. A covering letter (attaching the report) addressed to the plaintiff by the Acting District Commander of the Queensland Fire Service states:

"You are advised that in the opinion of the Queensland Fire Service serious consideration should be given to the implementation of the recommendations contained, in order to better secure the safety of the public from fire. You are further advised that any persons occupying or using the premises be informed of the building status, in regards to their ability to safely evacuate the premises in the event of fire." 13 Report B relates to an inspection of premises known as the Highway Corroboree Backpackers Inn located at 89 Dornoch Terrace, Highgate Hill on 21 September 1988. These premises were operated by the plaintiff at the time of the inspection. The report states: "This report is concerned with the protection of the occupants and their ability to safely evacuated the premises in the event of fire; especially in the hours of darkness. The number of persons accommodated is excessive and the two external fire escapes at the rear of the building are unstable and dangerous".

14 Report B specifies nine respects in which the premises were said to be inadequate. 15 The plaintiff objects to the grant of leave to amend the defence. Mr Evatt, who appears with Ms Fraser, on behalf of the plaintiff submitted that the late application to amend had the flavour of being a device designed to see the trial date vacated. Mr Evatt pointed to the circumstance that Report A was obtained on subpoena. There was no obstacle to the defendants obtaining a return date for subpoenas at an early stage in the proceedings. It was open to the defendants to investigate the availability of the defences of justification and contextual justification well prior to March 2000 (the subpoena was issued in March 2000). Generally, Mr Evatt submitted that his client would be prejudiced by the grant of leave at this stage in the proceedings. 16 Mr Evatt drew attention to the terms of Ms Barnett's affidavit which were suggested to be notable for what they did not say. Neither Ms Barnett or any other person having carriage of the matter on behalf of the defendants deposed, in terms, as to the reasons for the lateness of the application. In this regard Mr Evatt referred me to the comments of Denning M.R. in Atkinson v Fitzwater [1987] 1 WLR 201:

"I should say that if there were any reasonable basis for a belief that the defendants' delay in seeking leave for their amendment was deliberate in order to overreach the plaintiff or to obtain some tactical advantage I should come to the opposite conclusion, but there is here evidence on affidavit to the contrary sworn by a solicitor."

17 Exhibited to Ms Barnett's affidavit are copies of the plaintiff's verified list of documents (as supplemented from time to time) together with correspondence between the parties as to the adequacy of discovery. On 4 May 2000 Teakle Ormsby Conn ("Teakles") who act for the plaintiff wrote to the defendants' solicitors, Mallesons Stephen Jaques ("Mallesons") stating: "The plaintiff believed that some documents relevant to the case may have been in the keeping of McIvor of 26 Burdett St, Albion. However Mr McIvor (who is the plaintiff's father) is aged 84 and his memory was such that he consistently denied having any of the plaintiff's documents. "Mr McIvor recently became ill and the plaintiff took him to the Greenslope Repatriation Hospital where he was admitted. While in his father's home the plaintiff came across a number of documents concerning the issues in dispute between the parties. In respect of some of them the plaintiff had not even remembered they existed"

On 4 May 2000 the plaintiff discovered six further bundles of documents including Reports A and B. 18 Mr Blackburn drew attention to the terms of Teakles' letter of 4 May 2000 and submitted that it provided an inadequate explanation for the plaintiff's incomplete discovery. 19 Part 20 Rule 1(2) of the Supreme Court Rules ("the SCR") provides, inter alia: "all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the pleadings." 20 In Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Dawson, Gaudron & McHugh JJ observed at 155: "Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the Court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties." 21 Their Honours noted that the Full Court in that case had been of the view that costs were not to be considered "the healing medicine" they once were and that the Full Court had referred to the speech of Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] AC 189 in this respect. Their Honours went on to observe that the subject litigation was of a commercial nature and that there was nothing about it which would indicate that it occasioned personal strain such as to justify the conclusion that costs would not be an adequate remedy for prejudice caused by the amendment to the pleadings sought. The parties were a developer and a State Government. The application to amend the defence was made six months prior to the date fixed for hearing. 22 As I read the judgment of Dawson, Gaudron & McHugh JJ in Queensland v J L Holdings (at p. 155) implicit in their Honour's reference to the nature of the litigation and to the nature of the parties in that case is a recognition that the interests of justice may in the case of a personal litigant take into account considerations such as those to which Lord Griffiths in Ketteman adverted. It is necessary to look both to the conduct parties and to the prejudice which each might suffer in determining an application such as this. 23 When the matter was first before me on 25 May 2000 Mr Evatt tendered a letter signed on behalf of the Principal Registrar of the Court, dated 2 May 2000, advising that the plaintiff's application to waive the payment of a transcript fee had been successful. He relied on this as evidence of the plaintiff's impecuniosity. Otherwise there was, at that time, no evidence touching on the question of any particular prejudice to which the plaintiff might be subject in the event of the grant of the leave sought (other than such prejudice as might be presumed to flow to a personal litigant who has prepared himself for a trial and finds the hearing date threatened by a late application to amend). The matter was stood over to 31 May 2000 to permit Mr Evatt to lead further evidence. 24 On 31 May 2000 Mr Evatt read an affidavit sworn by the plaintiff on 26 May 2000. The plaintiff states that he resides in Greenslopes, Queensland. He is in a parlous financial position and depends upon the unemployment benefit supplemented by income received from casual maintenance work. The plaintiff proposes to travel to Sydney by bus in order to pursue his claim in these proceedings. He will be staying in Youth Hostels Association accommodation during the trial. 25 Prior to 23 May 2000 (when he received a copy of a letter prepared by the defendants' solicitors) the plaintiff had not been aware that he may need to obtain witnesses. He says that had he known of that need even six months ago he could have taken steps to locate witnesses. In January 2000 the plaintiff met one of the backpackers who had stayed at his hostel. That person would have been able to give evidence as to the safety precautions which were in place. The plaintiff had not taken a note of the person's full name and address and he has no means of contacting him. 26 The plaintiff said that he is endeavouring to establish the identity of fire officers who inspected the hostel at the relevant time. One such officer, Mr Drummond, has not returned his calls. Mr Evatt informed me that the plaintiff has since learned that Mr Drummond has agreed to give evidence on behalf of the defendants in the proceedings. 27 The plaintiff planned to travel to Sydney on 7 June to attend conferences with his legal representatives. Generally, it would be difficult for him to look for witnesses and keep his planned schedule with respect to conferences with counsel. 28 The plaintiff states that he has located a person described as "a Brisbane professional man" who is able to give evidence which would be supportive of his case in the event that the defendants are granted leave to plead justification. That witness is willing to come to Sydney and attend Court but he requires reimbursement of his fares and expenses. 29 The plaintiff says that he may have been able to borrow from friends and relatives an amount of $1,000 or $2,000. However, those to whom he might turn for assistance are themselves not well off and would need time to save money in order to lend it to him. I view that assertion with some circumspection. The plaintiff gives nothing in the way of detail to give substance to his hope that friends (themselves on apparently limited incomes) might if given enough time save up money to assist him with his legal proceedings. In any event I am not inclined to view considerations of this sort as bearing significantly on the question of whether to grant the defendants leave to amend. Difficulties the plaintiff may have in obtaining witnesses (consequent upon the grant of leave) may be met by vacating the trial date and an appropriate order for costs.

30 The plaintiff says that he has suffered a great deal of upset in consequence of the subject telecast. It took him a long time to save up for the filing fee and he has undergone stress in waiting for the proceedings to come on. He is hopeful of being vindicated by the proceedings and of having his reputation restored. In the concluding paragraph of his affidavit he states:

"My present feeling is that if the case cannot come on in June I might as well give it away as I doubt whether I can undergo the pressure and strain for much longer". 31 As to the matters set out in paragraph 30 above Mr Blackburn submits that I would balance these assertions against the circumstance that the subject programme was broadcast on 26 May 1992 and that the plaintiff did not commence the proceedings until one week before the expiration on the limitation period on 21 May 1998. 32 It was not said that the plaintiff would seek to have the hearing date vacated (in the event of leave being granted). The plaintiff's affidavit leaves this matter somewhat open. I approach the matter upon the basis that the grant of leave to amend in the terms sought may produce the result that the plaintiff is not in a position to proceed on 19 June 2000. I accept that should the date be lost this will occasion some strain to the plaintiff. I do not consider it reasonable to proceed upon an acceptance that the strain would be of such a nature as to cause the plaintiff to abandon his claim on that account. 33 I turn now to a consideration of the conduct of the defendants in bringing this application so close to the date set for the hearing. The defendants rely significantly on the late discovery of Report B. Mr Evatt drew attention to the circumstance that in Malleson's letter of 22 May 2000 (in which the terms of the proposed amended defence are set out) the particulars of truth relating to the hostel at 189 Dornoch Terrace do not correspond in any close way to the particulars as to the defects identified in Report B. Mr Evatt invited me to infer that the draughtsperson had not relied on the contents of Report B in drafting the particulars of truth. This, it was submitted, would incline me to reject the contention that the late discovery of Report B provided an explanation for the decision to seek leave to plead these further defences. 34 Mr Blackburn accepted that there were matters set out in Report B which were not recited in the particulars of truth. He foreshadowed that he would seek to add additional particulars of truth taking these matters up (in the event leave to amend was granted). 35 The plaintiff swore an affidavit verifying his List of Documents on 9 March 1999. The List appears to have been served on the defendants by letter dated 25 March 1999. On 5 May 1999 Mallesons wrote to Teakles asserting, inter alia, that the plaintiff's discovery was inadequate. On 31 May 1999 Mallesons repeated their request for further discovery by letter to Teakles. On 4 June 1999 Teakles advised "[w]e are seeking instructions from our client as to any further discovery and will advise as soon as possible". By letter dated 21 June 1999 Teakles supplied Mallesons with an unverified Supplementary List of Documents. Mallesons pressed for further discovery after reviewing the Supplementary List of Documents (letter of 23 June 1999). On 22 July 1999 Teakles wrote to Mallesons stating "[d]iscovery is now complete". Mallesons responded by further queries as to the adequacy of discovery (letter of 29 July 1999). By letter dated 10 August 1999 Teakles served a verified Second Supplementary List of Documents on Mallesons. On 11 April 2000 Mallesons wrote to Teakles pressing for further discovery. In that letter the author noted that the plaintiff had not given discovery of documents "relating to fire safety issues at the Whalan Street premises" and that "complete discovery was required of fire safety issues and remedial work requested by the Council" with respect to the Dornoch Terrace premises. On 14 April 2000 Teakles wrote to Mallesons stating, inter alia, that the plaintiff would produce such further documents as he could. It was further noted that the plaintiff was living in Queensland and that he would not be able to comply with a deadline of 21 April 2000. 36 On 2 May 2000 Mallesons notified Teakles of their intention to have the matter placed in the defamation list on 12 May 2000 with a view to agitating the following matters: (i) further discovery, (ii) particulars of the plaintiff's claim for damages and as to leases & (iii) objections to certain of the plaintiff's imputations. On 4 May 2000 Teakles advised of the existence of six bundles of documents which the plaintiff had located at his father's premises. These were the subject of a Third Supplementary List of Documents and included Reports A & B. 37 I note that as at 2 May 2000 when the defendants sought to have the matter re-listed in the defamation list for argument they did not appear to have resolved to seek to raise a defence of justification. At that time they were in possession of Report A which had been produced on subpoena. The application for leave to amend the defence was first notified by letter dated 10 May 2000 less than one week after Report B was obtained. Report B might be characterised as being in stronger terms that Report A.

38 Mr Blackburn informed me that in consequence of obtaining both report A and report B he and his instructing solicitor travelled to Queensland on 10 May 2000 and interviewed witnesses and concluded that a defence of truth was available to the defendants. 39 It may be that by greater diligence on the defendants' part the availability of a defence of truth might have been identified at an earlier time, however, the plaintiff's failure to give adequate discovery in a timely way needs also to be weighed in the balance. In this regard I do not consider the explanation advanced in Teakles' letter of 4 May 2000 to be adequate. I also accept that the defendants were conscientious in their attempts to press for full discovery over the period 5 May 1999 to 4 May 2000 when Report B was discovered. In all the circumstances I consider that the interests of justice favour the grant of the defendants' application for leave to amend. 40 The order sought in this regard was for leave to file an amended defence to the further amended statement of claim pleading justification and contextual justification in the terms set out in the letter from Mallesons to Teakles dated 22 May 2000. That letter sought by its concluding paragraph to reserve the right to add to the particulars of truth once further information in relation to fire safety regulations affecting the properties had been considered. Mr Blackburn, in the course of submissions on 31 May 2000, sought to amend the particulars of truth with respect to the hostel located at 189 Dornoch Terrace, Highgate Hill, by the inclusion of certain further particulars drawn from the terms of Report B. I considered that the defendants should have leave to amend their defence so as to plead both justification and contextual justification. After hearing further submissions on 31 May 2000 it seemed to me appropriate not to confine that leave to the terms of Mallesons letter of 22 May 2000 but to allow the defendants to plead the additional particulars of truth identified by Mr Blackburn in the course of the hearing.

The Plaintiff's Economic Loss Claim 41 In paragraph 5 of the Further Amended Statement of Claim the plaintiff pleads that he has suffered economic and financial loss. In paragraph 6 a claim is made for "damages, actual damages, aggravated damages and interest". Particulars of the claim for actual damages were sought by Mallesons in a letter dated 5 May 1999. In response to that request, on 4 June 1999, Teakles advised: "Paragraphs 5 and 6 (special and/or general damages) the plaintiff makes no claim for special damages or actual damages. He claims general loss of business in that, prior to the publication of the material complained of (26 May 1992), he was in the process of establishing an anticipated substantial business of conducting backpackers' hostels. At the time of publication he was conducting the hostel at 49 - 59 Whelan St Surfers' Paradise. The plaintiff had received no income from the hostel. All payments by backpackers went into the business. The plaintiff was hopeful of establishing a large backpackers' hostel business in the Gold Coast area and had there been no telecast, that in about 1994, he would have made at least $1000 net per week. accordingly the plaintiff claims this sum from 1994 to date".

42 On receipt of the particulars Mallesons pressed for further discovery in relation to the claim for damages of $1000 per week from 1994 and continuing. There were further exchanges of correspondence on this topic with the plaintiff seeking to maintain his claim but indicating that there were no documents in his possession in support of it. Some further particularisation was provided by Teakles in a letter dated 6 August 1999: "He says he knows of other backpackers/hostel accommodation businesses which yield a thousand a week and he said that he would have done the same".

Mallesons requested that the plaintiff provide full particulars and discovery in support of the claim for $1000 per week in damages by letter dated 11 April 2000. This elicited no further particularisation of the claim. The defendants seek to have the claim for $1000 per week damages in economic loss struck out. 43 In Bickel v John Fairfax [1981] 2 NSWLR 474 Hunt J discussed the effect of Andrews v John Fairfax [1980] 2 NSWLR 225 at 235 and held a claim for general damages (going to loss of custom) requires particularisation.or at least forewarning such as to put the defendant on notice. The subject claim is wholly unparticularised. Not only has there been no discovery of any relevant documents in the nature of accounting records and the like but the plaintiff has failed to give any account of how he arrives at the $1000 per week sum beyond asserting his belief as to the profits achieved by other unidentified backpackers/hostel accommodation businesses. On the plaintiff's behalf it has not been suggested before me that the claim is capable of any greater particularisation. In these circumstances I propose to strike it out.

44 In his Further Amended Statement of Claim the plaintiff particularises that he suffers "nervous and psychiatric disability". Again, Mallesons sought further particulars of this claim. 45 In their letter of 4 June 1999 Teakles advised concerning the plaintiff:

"The psychiatric disability referred to is distress and depression. The plaintiff has not been treated or examined by doctors and consequently there are no medical reports." 46 Mr Evatt accepts that there is no evidence of any frank psychiatric injury. As I understand the plaintiff's claim all that he seeks to do is to place before the jury evidence that, following the publication of the matter complained of, he experienced feelings of distress and the he felt depressed. I propose to strike out the claim with respect to psychiatric disability. Objections to the Imputations

47 The defendants objected to imputation 3(ii) in the further amended statement of claim. The imputation reads: "The plaintiff so conducted himself in the management of hostels for backpackers that he disregarded their safety"

In the course of submissions on 25 May 2000 Mr Blackburn submitted that this imputation was bad for want of precision. Further, he contended that it did not differ in substance from imputation (c) which was pleaded in the plaintiff's amended statement of claim and which was struck out by Levine J on 13 November 1998. That imputation was framed in these terms: "The plaintiff so conducted himself in the management of hostels for backpackers that he was indifferent to their safety" 48 When the matter came back before me on 31 May 2000 Mr Evatt accepted that imputation 3(ii) was bad in its present form. He sought leave to replead it. Initially Mr Evatt sought leave to re-plead an imputation in these terms:

"The plaintiff so conducted himself in the management of hostels for backpackers that he disregarded their safety by not taking adequate precautions against fire". 49 Mr Blackburn objected to the imputation in that amended form. Mr Evatt did not press imputation 3 (ii) in the amended form set out in paragraph 48 above. He sought and was granted leave to replead imputation 3(ii).

50 Imputation 3(v) was objected to on the basis that it does not differ in substance from imputation 3(i). Imputation 3 (v) pleads: "The plaintiff so conducted himself about safety precautions in his hostels for backpackers that they were in danger of being killed by fire".

"The plaintiff conducted hostels which were death traps."

Mr Blackburn referred me to the decision of Hunt J (as he then was) in Singleton v John Fairfax and Sons (unreported) NSWSC, 20 February 1980, at pages 6 and 7 where His Honour suggested that one means of testing whether one imputation does truly differ in substance from another (for the purpose of Part 67 Rule 11(3) SCR ) is to ask what may be proved by way of justification to each imputation?

52 Mr Evatt submitted that paragraph 3(v) pleads an imputation of lesser seriousness than that in 3(i). In this respect it is to be seen as a fall-back imputation. It differs in substance from 3(i) in that all that it charges is that the plaintiff's conduct with respect to safety precautions in his hostels placed backpackers in danger of being killed by fire. By contrast imputation 3 (i) charges the plaintiff with conducting hostels which were death traps. This imputation connotes a high risk of being killed by fire. It does not seem to me in its ordinary meaning that the expression "death traps" signifies more than that premises exposed the occupants to a danger of being killed. If the matter complained of is found to convey an imputation that the plaintiff's conduct with respect to safety precautions in his hostels exposed backpackers to the danger of being killed by fire imputation 3(i) would be made out. I do not consider that imputation 3(v) differs in substance from imputation 3(i). For this reason I ordered that imputation 3(v) be struck out. 53 Imputation 3(vi) was objected to upon the basis that it lacked precision. Imputation 3(vi) is pleaded in these terms: "The plaintiff so conducted himself in the management of his hostels for backpackers that he exploited them by providing unsafe accommodation".

54 Mr Blackburn drew to my attention that this imputation is the repleaded version of imputation (h) which was struck out by the order of Levine J on 13 November 1998. As pleaded imputation (h) was in these terms: "The plaintiff so conducted himself in the management of his hostels for backpackers that he exploited them"

His Honour struck out imputation (h) on the basis that the plaintiff had failed to specify the disparaging or pejorative component of the matter complained of which explained the conclusion of exploitation. I consider that the defect has been cured in the way it has been repleaded. Imputation 3(vi) will go to the jury. 55 Imputation 3(vii) was the subject of an objection as to capacity. Imputation 3(vi) reads: "The plaintiff disobeyed council orders to fix 270 defects in his hostels".

The objection is taken upon the basis that, as pleaded, the imputation relates to more than one hostel. The matter complained of deals with a hostel operated by the plaintiff in Brisbane in the late 1980s and a hostel operated by him on the Gold Coast as at 1992. Mr Evatt submits that the matter complained of is reasonably capable of conveying the imputation as pleaded. He drew my attention Schedule A pp. 4/5 lines 41 and following: "According to Mayor Lex Bell, council inspections of the properties revealed no less than 270 defects. In September last year Hughes was ordered to fix them".

The reference to "properties" needs to be read in the context of the assertions at p 2 line 23: "Hughes runs a backpackers hostel from five buildings marked for redevelopment on this site"

56 I consider that the reference to the Council order to fix 270 defects is not capable of conveying to the ordinary reasonable viewer a reference to more than one hostel. For this reason I ordered that imputation 3(vii) be struck out. I gave the plaintiff leave to replead it. 57 Imputation 3(viii) was the subject of objection as to capacity. Imputation 3(viii) is in these terms: "The plaintiff so conducted himself in the management of his hostels for backpackers that he failed to protect their lives by fixing 270 defects".

This imputation is subject to the same objection as imputation 3(vii). For the reasons already given I consider that objection is made good. Additionally, the defendants submitted that the matter complained of is incapable of conveying this imputation (even if it is limited to the plaintiff's management of one hostel). The reasonable viewer, so it is submitted, would not link the failure to fix all of 270 defects to a failure to protect the lives of backpackers. The reasonable viewer applying his or her common sense and knowledge of the world would consider that some of the 270 defects in the premises would have been of a trivial and non life threatening nature. 58 The programme shows the interviewer, Ms Hanson, stating: "According to Mayor Lex Bell, Council inspections of the properties revealed no less than 270 defects. In September last year Hughes was ordered to fix them. Since then his efforts have been described as purely token. He's now been given his last 30 day reprieve".

Ms Hanson is then seen to confront the plaintiff (in what appears to be an unsolicited interview) saying "There's 270 defects in these places that you haven't bothered to fix up". There follows a short exchange between Ms Hanson and the plaintiff in which she reiterates "You've had six months. Six months to do it, haven't you?". The plaintiff instructs Ms Hanson to leave the property and the program then moves immediately to Ms Joanne Pitt observing:

"It is serious because it concerns lives and most of the people using these facilities are young people and I think that the young people sometimes have to be protected from themselves".

59 I bear in mind the transient nature of a television broadcast and that the ordinary viewer is not to be expected to analyse a sensational programme of this character with careful attention. I consider having regard to the impact of that portion of the program summarised above that the imputation pleaded is capable of being conveyed to the ordinary reasonable viewer. Accordingly I gave leave to replead imputation 3(viii).

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