Supreme Court New South Wales

• Medium Neutral Citation: Corby v Network Ten Pty Limited Corby Junior v Network Ten Pty Limited Rose v Network Ten Pty Limited Kisina v Network Ten Pty Limited [2014] NSWSC 1431
• Hearing dates: 19, 26 September 2014
• Decision date: 16 October 2014
• Before: McCallum J

Decision

Rulings given as to whether plaintiffs' imputations differ in substance and whether defendants' contextual imputations are capable of meeting the requirements of s 26 of the Defamation Act 2005.

• Catchwords: DEFAMATION - form of pleadings - requirement that a plaintiff's imputations differ in substance - requirement that a contextual imputation be another imputation carried in addition to the imputations of which the plaintiff complains
• Legislation Cited: Defamation Act 2005
• Cases Cited: Ange v Fairfax Media Publications Pty Limited [2011] NSWSC 204; Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190; Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380; Drummoyne Municipal council v Australian Broadcasting Corporation (1990) 21 NSWLR; Griffith v Australian Broadcasting Corporation [2002] NSWSC 86; Ives v The State of Western Australia [No 8] [2013] WASC; Kelly v Harbour Radio [2013] NSWSC 9; Liu v Fairfax Media Publications [2013] NSWSC 7; Singleton v John Fairfax & Sons (Supreme Court of New South Wales, 20 February 1980, Hunt J, unreported); Tauifaga v TCN Channel 9 Pty Limited [2013] NSWSC 8
• Category: Interlocutory applications
• Parties: 2014/154113; Mercedes Pearl Esma Corby (plaintiff); Network Ten Pty Limited (first defendant); Steve Price (second defendant); 2014/198149; Michael Corby Junior (plaintiff); Network Ten Pty Limited (first defendant); Steve Price (second defendant); 2014/154105; Rosleigh Jill Rose (plaintiff); Network Ten Pty Limited (first defendant); Steve Price (second defendant); 2014/197963; James Kisina (plaintiff); Network Ten Pty Limited (first defendant); Steve Price (second defendant)
• Representation: Counsel: K Smark SC, S Chrysanthou (plaintiffs); T Blackburn SC (defendants); Solicitors: Kalantzis Lawyers (plaintiffs); Banki Haddock Fiora (defendants)
• File Number(s): 2014/154113; 2014/198149; 2014/154105; 2014/197963
• Publication restriction: None

Judgment

1 HER HONOUR: Schapelle Corby is an Australian woman who was arrested on drug charges at Denpasar Airport almost exactly ten years ago. The charges were based on a large quantity of marijuana found in a boogie board bag belonging to Ms Corby. She served a lengthy term of imprisonment and remains in Bali on parole. She and her family have been the subject of regular media attention in Australia since her arrest.

2 Ms Corby has always maintained her innocence of the charges. In April of this year, a television programme on Channel 10 known as "The Project" broadcast allegations made by another Australian woman convicted of drug smuggling in Bali, Ms Renae Lawrence, that Ms Corby had admitted to her that she knew the marijuana was in the boogie board bag. Ms Lawrence said:

"the person who was supposed to be at the airport at that time didn't show up for work or couldn't be there for some strange reason .... so she got caught".

3 The television programme featured a discussion of those allegations by a panel of journalists. The discussion included the repetition of an earlier allegation that Ms Corby's conduct was "part of a Corby family drug operation running drugs to Indonesia".

4 Four members of the Corby family have commenced proceedings for defamation arising from that broadcast. They are Mrs Roseleigh Jill Rose (Schapelle Corby's mother), Mercedes Corby (Schapelle Corby's sister), Michael Corby Junior (Schapelle Corby's brother) and James Kisina (Schapelle Corby's half-brother). This judgment determines two applications concerning the form of the pleadings in each set of proceedings, as follows:

(a) an objection taken by the defendants in each set of proceedings that two of the imputations relied upon by each plaintiff do not differ in substance;

(b) an objection taken by Mr Kisina to the contextual imputations sought to be relied upon by the defendants in a proposed amended defence to his claim.

Plaintiffs' imputations

5 The rules of court require a plaintiff in a defamation action to specify each defamatory imputation on which he or she relies: see r 14.30(2) of the Uniform Civil Procedure Rules 2005. Rule 14.30(3) prohibits a plaintiff from relying on two or more imputations allegedly conveyed by the same defamatory matter unless the imputations differ in substance.

6 I recently had occasion to consider the historical development of those requirements and their continuing importance under the Defamation Act 2005 in Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380. For the reasons explained in that judgment, a plaintiff's obligation to specify the meanings contended for and the prohibition on imputations that do not differ in substance are important in delineating the issues in the proceedings. Unfortunately, however, as the meaning of words is a matter about which there is often great scope for debate, they are requirements which can give rise to extensive legal argument (at the risk of disproportionate cost).

7 Each of the plaintiffs in the present actions has specified the following defamatory imputations as being conveyed by the television broadcast:

(a) the plaintiff is a drug dealer in that [he/she] runs illegal drugs to Indonesia;

(b) alternatively to (a) the plaintiff is a criminal in that [he/she] runs illegal drugs to Indonesia;

(c) the plaintiff is part of an illegal drug operation with other members of [his/her] family;

(d) the plaintiff was reasonably suspected by Federal Police of committing crimes.

8 The defendants contend that imputation (c) does not differ in substance from imputations (a) and (b) (which are pleaded as alternatives to each other). In particular, it was submitted that the words "with other members of [his/her] family" add nothing meaningful to the defamatory sting.

9 One approach for determining whether imputations differ in substance is to consider what would be required to be proved in order to establish that each was true: Singleton v John Fairfax & Sons (Supreme Court of New South Wales, 20 February 1980, Hunt J, unreported). That is a helpful method of testing the practical fairness of allowing two imputations to stand but it should not be adopted as a formulation that supplants the plain words of the rule.

10 Mr Blackburn SC, who appears for the defendants, submitted that the Court should rather adopt the approach of Simpson J in Griffith v Australian Broadcasting Corporation [2002] NSWSC 86 at [67] where her Honour said:

Although, in the usual case, determining a difference in substance between two or more imputations can be done by reference only to the imputations, it is, on occasions, permissible to look to the matter complained of in order to determine what the plaintiff (sic) is really asserting.

11 Adopting that approach, her Honour held that the differences between two imputations relied upon in that case were not of substance but were, rather, "properly characterised as insubstantial".

12 It may be accepted that there is a difference between saying that someone runs illegal drugs to Indonesia and saying that he is part of an illegal drug operation with other members of his family. Mr Smark SC, who appears with Ms Chrysanthou for the plaintiffs, submitted that the invocation of the family element does provide a different sting. He submitted that crimes committed in concert or crimes of conspiracy are both different and worse.

13 Mr Blackburn submitted that, whilst the criminal law recognises a difference between acting in concert and acting alone, the ordinary reasonable reader "unencumbered" with such knowledge would see no such distinction. For my part, I would think that distinction is readily discernible by ordinary citizens.

14 However, adopting the approach in Griffith relied upon by Mr Blackburn, in my view the matter complained of in the present case is really saying only one thing, which is that the Corby family was conducting an illegal drug operation running drugs to Indonesia. It does not make the suggestion, separately, that any individual member of the family did so acting alone.

15 I consider that there is really only one substantial meaning conveyed by the television programme, the components of which are presently captured in imputations (a) and (b) on the one hand (illegal conduct in running drugs to Indonesia) and imputation (c) (as part of an operation with other members of the Corby family). The plaintiffs should have leave to amend their pleadings accordingly.

Contextual imputations pleaded against James Kisina

16 The second issue arises only in the proceedings brought by Mr Kisina. In those proceedings, the defendants seek to file an amended defence pleading the following contextual imputations against Mr Kisina:

(1) the plaintiff committed crimes involving illegal drugs;

(2) the plaintiff is a person who because of his involvement with illegal drugs warranted being watched by the police.

17 Mr Kisina objects to those imputations on the grounds of form, capacity and failure to comply with the requirements of s 26 of the Defamation Act.

First contextual imputation

18 As to the first contextual imputation, it was submitted that the imputation is bad in form since the notion of "crimes involving illegal drugs" is imprecise and so apt to cause confusion. Precision is a requirement of the plaintiff's imputations: see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137-138 per Gleeson CJ; at 155F per Priestley JA. It is equally a requirement of any contextual imputation relied upon by a defendant: Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [32] to [34] per Hodgson JA; McColl JA and McClellan AJA agreeing at [42] and [43].

19 In my view, the defendants' first contextual imputation is impermissibly imprecise. The notion of "crimes involving illegal drugs" is extremely broad. The matter complained of is quite specific - it accuses the Corby family of being involved in illegal drugs specifically by smuggling drugs into Indonesia. There is a large variety of other kinds of crimes involving illegal drugs including self-administration, possession, supply, manufacture, importing, sexual assaults involving the administration of a drug for the purpose of rendering the victim incapable of resisting and so on. In my view, the imputation is liable to be struck out on that ground alone.

20 Secondly, Mr Smark submitted that the imputation that Mr Kisina committed crimes involving illegal drugs is simply not capable of being conveyed in a generalised way. He submitted that the allegation made by the television programme is that, because of his membership of the Corby family, Mr Kisina was involved in the family operation of smuggling drugs into Indonesia and that no generalised allegation of involvement in illegal drugs is capable of arising.

21 Mr Blackburn submitted that the matter complained of is capable of being understood in two alternative ways - either that the Corby family run drugs to Indonesia or, quite differently, that they run a drug operation an instance of which is running drugs to Indonesia. He submitted accordingly that the general imputation is capable of arising and that the defendants are not able to plead it with any greater specificity owing to the generality of the words of the matter complained of (relying on the well-known passage in the judgment of Gleeson CJ in Drummoyne). I disagree. In my view, the matter complained of does provide greater specificity than is captured in the notion of "crimes involving illegal drugs".

22 The third objection to the first contextual imputation is that it is not capable of meeting the requirements of s 26 of the Defamation Act. That section provides:

It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ("contextual imputations") that are substantially true, and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

23 The content of the requirement of that section that a contextual imputation be an "other" imputation arising "in addition to" the plaintiff's imputations has been considered in a number of authorities.

24 As noted on behalf of the plaintiffs, the principles were discussed by Nicholas J in Ange v Fairfax Media Publications Pty Limited [2011] NSWSC 204 at [16] to [27] and have been applied by me on a number of occasions: see Kelly v Harbour Radio [2013] NSWSC 9 at [2] to [3]; Liu v Fairfax Media Publications [2013] NSWSC 7 at [17] to [22] and in Tauifaga v TCN Channel 9 Pty Limited [2013] NSWSC 8 at [6] to [7] where I adopted the following summary provided by counsel:

(a) a contextual imputation must differ in substance from the plaintiff's imputations (Ange at [25]);

(b) the question is, would the ordinary reasonable reader or viewer have understood the matter complained of to convey at the same time both the plaintiff's imputations and the defendant's contextual imputation (Ange at [16]);

(c) a contextual imputation will not be permitted if it is merely an alternative formulation to the plaintiff's imputation. The requirement that the imputations differ in substance is a necessary but not sufficient requirement - there must be a difference in kind (Ange at [27]);

(d) if the defamatory sting of the contextual imputation is the same as the defamatory sting of the plaintiff's imputation, even if the contextual imputation is broader it will still be impermissible (Ange at [27]);

(e) where there is more than one imputation relied upon by the plaintiff, it is necessary to consider all of the imputations separately and in combination to determine whether a contextual imputation is carried in addition to them (Ange at [28]).

25 Mr Blackburn characterised the requirement that a contextual imputation must be different in kind as a "phantom" requirement. However, that was a formal submission. He accepted that I am bound by authority on this question.

26 Mr Smark also drew my attention to a convenient collection of the relevant principles in the decision of Le Miere J in Ives v The State of Western Australia [No 8] [2013] WASC. Mr Smark submitted that the principles collected in that judgment are not discrete but are different reflections upon a proposition perhaps best captured by Simpson J in Ange at [61] (cited with approval in Ives at [85]) where her Honour said:

"on the authority of Jones, the defendant cannot expand the area of misconduct by pleading a contextual imputation related to the same class of misconduct but framed in general terms".

27 Mr Smark submitted that that is exactly what the defendants seek to do with their first contextual imputation in the present case. In my view, that submission is plainly right.

28 The defendant's second contextual imputation is that the plaintiff is a person who because of his involvement with illegal drugs warranted being watched by the police. The first objection was a form objection. Mr Smark submitted that the imputation is bad in form for two reasons. First, he submitted that it entails the same imprecision as the first contextual imputation in its reference to Mr Kisina's "involvement with illegal drugs". In my view, for the reasons set out above in respect of the first contextual imputation, there is force in that complaint and the imputation is liable to be struck out on that basis.

29 Secondly, Mr Smark submitted that the imputation does not identify any act or condition the attribution of which defames the plaintiff. I do not think that is a discrete cause for complaint. Whatever the relevant "involvement with illegal drugs" may be, it is characterised as warranting the attention of police, which conveys the (defamatory) implication of unlawfulness. The real vice of the imputation is its imprecision.

30 The second objection is that the imputation fails to identify the act or condition that would make ordinary people think less of the plaintiff. That is perhaps a different way of articulating the first objection (as to form). Mr Smark asked, rhetorically, what does the imputation actually say Mr Kisina has done, or what condition does it attribute to him? No precise answer can be given to that question, in my view.

31 Mr Smark also submitted that the imputation is incapable of being conveyed of the matter complained of. With a degree of ingenuity, he submitted that the matter complained of says only that police were in fact watching the family, not that they ought to be. I do not accept that submission. In my view, the inference is at least capable of arising that, if police had the family under surveillance, there was some warrant (not in the formal legal sense but some justification) for embarking on such surveillance.

32 The third objection is that, as with the first contextual imputation, the second contextual imputation is incapable of meeting the requirement of s 26 of the Defamation Act that it be a meaning conveyed "in addition to" the plaintiff's imputations. In my view, that is plainly right. As already noted, the imputations relied upon by the plaintiff include an imputation "that the plaintiff was reasonably suspected by Federal Police of committing crimes". I accept, as submitted by Mr Smark, that the second imputation cannot be derived at the same time as the plaintiff's imputations including imputation (d).

33 This case, arising from short remarks made in relatively clear terms, provides a good illustration of the potential for a simple claim to be unduly complicated by the pleadings. The matter complained of is plainly capable of conveying the meaning that the Corby family was conducting an illegal drug operation running drugs to Indonesia. The case can be defended by a denial that that meaning is in fact conveyed or by a defence that confesses and avoids it. That is a case which, in my view, can and should be brought to trial promptly without the need for further pleading disputes.

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Decision last updated: 06 November 2014