HER HONOUR: These are proceedings for defamation arising out of the broadcast of two items on ABC television in 2011 and 2012. Broadly speaking, the programmes related to the treatment of a prisoner at a prison at which the plaintiff is a prison officer.
The proceedings are listed for hearing with a jury commencing before me today. At the outset of the proceedings, the defendant sought leave to amend its defence. The substance of the amendment is to re-plead the contextual imputations relied upon in support of a defence under s 26 of the Defamation Act 2005 (NSW). Mr Littlemore SC, who appears with Mr Richardson for the defendant, frankly acknowledged that the explanation for an amendment at this stage is that he, having come in to consider the issue at a late point, determined that it would be preferable to re-plead the imputations in the terms now proposed.
The plaintiff's imputations are, with one small exception, the same for the 2011 and the 2012 publications. They are as follows:
1. The plaintiffs, as prison officers at Grafton Jail, contributed to the death of a prisoner by failing to provide appropriate, timely assistance;
2. The plaintiffs, as prison officers at Grafton Jail, callously disregarded a prisoner's serious injuries;
3. The plaintiffs, as prison officers at Grafton Jail, forced a prisoner who was bleeding heavily to crawl from one cell to another;
4. The plaintiffs, as prison officers at Grafton Jail, inhumanely failed to assist a prisoner, whom they knew had been assaulted, from one cell to another;
5. The plaintiffs, as prison officers at Grafton Jail, failed to timeously call a nurse to attend to a prisoner, whom they knew had been assaulted.
The existing contextual imputations are:
1. The first plaintiff treated Ian Klum like an animal by humiliating and degrading him in the hours prior to his death;
2. The conduct of the first plaintiff caused unnecessary and serious risk to the life of Ian Klum;
3. The first plaintiff lied about his treatment of Ian Klum.
The proposed new contextual imputations are:
1. The first plaintiff treated Ian Klum, who was dying of a head injury, callously by demanding that he stand and walk between cells at Grafton Jail;
2. The first plaintiff treated Ian Klum, who was dying of a head injury, callously by leaving him to crawl between cells at Grafton jail;
3. The first plaintiff treated Ian Klum, who was dying of a head injury, disrespectfully by using an obscenity to him upon noticing fresh blood on his face;
4. The first plaintiff condoned Barnett's disrespectful treatment of Ian Klum, who was dying of a head injury, (where Barnett harshly and repeatedly ordered Mr Klum to stand and walk, ignoring his pleas that he was losing consciousness and was incapable of standing) by failing to raise any objection to it or offer any comfort to Mr Klum;
5. The first plaintiff was untruthful to authorities about his treatment of Ian Klum; and
6. The first plaintiff humiliated and degraded Ian Klum after he sustained a fatal injury.
Mr Weaver, who appears for the plaintiff, submitted that the amendment is sought simply too late. Before considering whether the application should be refused on that basis, it is appropriate to deal with the individual objections. Each of proposed new contextual imputations (i) to (iv) includes the phrase in respect of Ian Klum "who was dying of a head injury". Mr Weaver initially objected to imputations drawn in those terms on the grounds that the particulars of contextual truth were not capable of supporting such an imputation, and on the grounds that the imputations were not capable of arising from the matter complained of.
In each case, it emerged that those objections were based on Mr Weaver's apprehension that the imputations meant, or were intended to mean, that the plaintiff knew Mr Klum was dying of a head injury. Mr Littlemore explained that the inclusion of that phrase was not intended in that way, but to denote as an objective fact that Mr Klum was, at the relevant time, dying of a head injury. On that understanding, Mr Weaver withdrew the two objections to which I have referred. However, the argument on that issue has persuaded me that there remains an ambiguity in the inclusion of that phrase in each of those four imputations. It may mean that Mr Klum was displaying symptoms of head injury which ought to have been observable. On that basis, one can understand the defamatory sting of each imputation. Alternatively, however, it may mean that, unbeknownst to the plaintiff, and with no observable symptoms, Mr Klum was dying of a head injury, in which event the defamatory sting in each imputation is, I think, less forceful.
Upon hearing debate about that issue, Mr Littlemore indicated that he would wish to have some time to reconsider the precise form of those imputations. I think in their present form they are ambiguous and therefore require my determination as to what they mean in accordance with the principles stated in Singleton v Ffrench (1986) 5 NSWLR 425. Leaving aside the need for Mr Littlemore to reconsider that issue, in light of Mr Weaver's fair concession as to the capacity of the matter complained of to convey one or other of the imputations debated and the capacity of the particulars of truth to support it, I would be inclined to allow those amendments, subject to one further issue, to which I will return.
Imputations (v) and (vi) were objected to on the grounds that they are not reasonably capable of arising from the matter complained of. Contextual imputation (v) is that the first plaintiff was untruthful to authorities about his treatment of Ian Klum. It may be observed that that imputation conveys the same sting (if anything less forcefully) as the previous contextual imputation (iii) that the first plaintiff lied about his treatment of Ian Klum. In any event, the import of the objection was two-fold. First, the plaintiff is one of three prison officers referred to by name in the first matter complained of and depicted in footage in the second matter complained of. The proposition that one of the prison officers said something which he later acknowledged to be wrong is clearly conveyed. In my view, where there is a closed class of three prison officers about whom that statement might have been made, the matter is plainly capable of identifying the plaintiff as the person about whom that might have been said.
The second objection was that the words of the matter complained of simply assert that one of the prison officers said something he later acknowledged to be wrong, rather than untruthful. In my view, whilst an argument could be put to the jury in those terms, it is plainly capable of conveying a suggestion of dishonesty in what was said to authorities. Accordingly, I think imputation (v) is reasonably capable of being conveyed.
Contextual imputation (vi) is the first plaintiff humiliated and degraded Ian Klum after he sustained a fatal injury. I confess I cannot see any basis on which it could reasonably be said that that imputation is not capable of arising. It is, to my thinking, the whole tenor of the matter complained of. The contextual imputation is, in my view, reasonably capable of being conveyed by the matter complained of.
A question remains as to all of the contextual imputations, as to whether they are capable of complying with the requirement of s 26(1) of the Defamation Act of being "other" imputations that arise "in addition to" the plaintiff's imputations. From time to time that is a question which arises for determination on an interlocutory basis. As I endeavoured to explain in my decision in Bateman v Fairfax Media Publications Pty Ltd (No 3) [2014] NSWSC 1601, sometimes it is an issue best left to be determined once it is known which imputations of those pleaded by the plaintiff the jury finds are, in fact, conveyed. Having regard to the timing of the amendment application, I consider it appropriate and more practicable to determine any such questions at that point. I raised that issue with the parties and no objection was taken to that course.
It remains to consider the question whether the amendment is simply made too late and occasions prejudice to an individual plaintiff. Plainly, it would have been preferable for the application to be brought forward at an earlier point in time, but as the analysis I have undertaken I hope will reveal, I think this is a case in which it is better for both parties for the imputations to be got right, rather than simply to reject a sensible application on the grounds of timing.
For those reasons, subject to the qualification as to whether the imputations meet the requirements of s 26, the amendment will be allowed.
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Decision last updated: 11 March 2015