Supreme Court New South Wales

• Medium Neutral Citation: Jones v TCN Channel Nine Pty Ltd [2014] NSWSC 1453
• Hearing dates: 17 October 2014
• Decision date: 24 October 2014
• Before: McCallum J

Decision

Defendants' contextual imputations struck out

• Catchwords: DEFAMATION - defences - defence of contextual truth - requirement that a contextual imputation be one carried in addition to the defamatory imputations complained of by the plaintiff - whether satisfied in this case - whether matter capable of carrying contextual imputation -appropriateness of striking out contextual imputations at the interlocutory stage
• Legislation Cited: Civil Procedure Act 2005; Defamation Act 1974, s 16; Defamation Act 2005, s 26; Uniform Civil Procedure Rules 2005, r 14.28
• Cases Cited: Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645; Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204; Batistatos v RTA [2006] HCA 27; (2006) 226 CLR 256; Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; Ives v the State of Western Australia [No 8] 2013 WASC 277; Jameel v Wall Street Journal Europe SPRL [2013] EWCA CIV 1694; [2004] EMLR 89; John Fairfax Publications Pty Ltd v Jones [2005] NSWCA 205; Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980, unreported)
• Category: Interlocutory applications
• Parties: Dane Charles Jones (plaintiff); TCN Channel Nine Pty Ltd (1st defendant); Nine Network (Australia) Pty Ltd (2nd defendant); Ninemsn Pty Ltd (3rd defendant); Tim Arvier (4th defendant)
• Representation: Counsel: S Chrysanthou (plaintiff); M Richardson (defendant); Solicitors: Kalantzis Lawyers (plaintiff); Johnson Winter & Slattery (defendants)
• File Number(s): 2014/86408
• Publication restriction: None

Judgment

1 HER HONOUR: These are proceedings for defamation commenced by Mr Dane Jones in respect of a segment on the television programme, A Current Affair broadcast on Channel Nine television. The defences pleaded by the defendants include a defence of contextual truth under s 26 of the Defamation Act 2005. This judgment determines objections taken by the plaintiff to two of the contextual imputations specified by the defendants in support of that defence.

2 The main focus of the programme is the conduct of a man described as Mr Jones's business partner, "electrician Nick Ray". The programme features footage of the kind which would be familiar to viewers of A Current Affair of a journalist accompanied by a camera crew confronting Mr Ray with the allegations the subject of the story. That footage, shown repeatedly during the programme, depicts only Mr Ray, not Mr Jones. However the programme also features segments of an interview with a Mr Gary Clements from Consumer Affairs stating:

"We want to get the message out that people should not deal with Nick Ray or Dane Jones or NRE Electrics".

3 Photographs (presumably of Mr Jones) are used at various points to illustrate the references to him.

4 Section 26 of the Defamation Act 2005 provides that it is a defence to the publication of defamatory matter "if the defendant proves that 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 that the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations".

5 Subject to one matter, the argument proceeded on the basis that the parties were not in dispute as to the applicable principles relating to that defence. Counsel for the defendants did not take issue with the following summary of the relevant law which has been provided to me by counsel for the plaintiff, Ms Chrysanthou, in a number of arguments and adopted by me in a number of decisions (the references to Ange are to the decision of Nicholas J in Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204; I have corrected a small number of typographical errors in the citations provided by counsel):

(a) a contextual imputation must differ in substance from the plaintiff's imputations (Ange at [27]);

(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 [18] citing a decision of the Court of Appeal considered below);

(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]).

6 For present purposes, those principles are to be applied in the context that the plaintiff's application invokes rule 14.28 of the Uniform Civil Procedure Rules 2005. The task is to determine whether the contextual imputations specified by the defendants are capable of meeting the requirements of s 26, which is to ask whether it is reasonably open to the tribunal of fact to be satisfied of the relevant element of the defence: Ange at [16].

7 The matter of principle as to which the parties differed was the relevance of the provisions of the Civil Procedure Act 2005 to the determination of that question. It will be necessary to return to that issue. Mr Richardson, who appears for the defendants, also raised an issue as to the appropriateness of determining the plaintiff's objections at the interlocutory stage, an issue which has also been raised in other matters in the Defamation List.

8 I turn to the plaintiff's specific objections. Contextual imputation A relied upon by the defendants is:

"The plaintiff is a conman"

9 Ms Chrysanthou submitted that a general imputation in those terms is not capable of meeting the requirement that a contextual imputation must be an "other" imputation carried "in addition to" the plaintiff's imputations. She submitted that the only way in which Mr Jones is alleged to be a conman in the matter complained of is in the specific sense captured by the plaintiff's imputation 4(e), which is:

"the plaintiff is a conman in that he scams vulnerable and innocent customers of his electrician business NRE Electrics out of their money."

10 Ms Chrysanthou acknowledged that, in principle, a defamatory publication can convey, at the same time, a general imputation and particular applications of the same allegation, as explained in Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980, unreported). She submitted, however, that in the present case there is nothing in the programme to suggest that Mr Jones is accused of being a conman generally or in any respect other than through his association with Mr Ray and NRE Electronics.

11 The relevant discussion in Singleton was concerned with the content of the requirement (reflected in the rules of court) that a plaintiff's imputations must differ in substance from each other. In that context, Hunt J rejected the proposition that it is wrong in principle to plead both the general and the particular imputation. His Honour ventured the view that "in most cases" the general allegation is different in substance from the particular. But there always remains a question as to whether the general imputation is capable of being conveyed as a separate imputation. Singleton sued on an imputation that he was a homosexual, where the article reported a particular act (kissing another man). That imputation survived the scrutiny of Hunt J, but his Honour made it clear that these issues always turn upon the context in which the relevant statements are made.

12 In any event, as the uncontested principles summarised above hold, difference in substance is a necessary but not sufficient requirement of a defendant's contextual imputation.

13 The requirement of difference was considered in the decision of the Court of Appeal in John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 in respect of the defence of contextual truth under s 16 of the Defamation Act 1974 (a predecessor to s 26 of the Defamation Act 2005 but in different terms). The argument concerned a contextual imputation that the plaintiff was a dishonest broadcaster. The plaintiff had succeeded in establishing an imputation that he was a dishonest broadcaster "in that" he had engaged in specified conduct. By majority, the Court of Appeal rejected the contextual imputation as failing to meet the requirements of s 16.

14 Spigelman CJ held that the requirement that a contextual imputation be "another imputation" is "not satisfied where a defendant relies on a contextual imputation which is, in substance, nothing more than an alternative way of formulating the same imputation relied on by the plaintiff, based on exactly the same words in the matter complained of and applying those words in exactly the same way": at [16] per Spigelman CJ.

15 Ipp JA found that the meaning of the plaintiff's imputation and that of the defendant's was, in effect, the same (at [111]).

16 Hodgson JA, who was in the minority, considered that the contextual imputation was "another imputation" within the meaning of s 16 of the 1974 Act (at [61], citations omitted):

Turning to the question of whether the defendant's first contextual imputation is "another imputation" within s 16(1), in my opinion it is, for essentially the reason that the defendant does not have the benefit of an issue estoppel arising from the jury's finding in favour of the plaintiff's imputation. The plaintiff's imputation can reasonably be considered as involving a limited type of dishonesty, so that what must and/or may be proved by way of justification of that imputation is different from what must and/or may be proved by way of justification of the defendant's first contextual imputation. The plaintiff asserts, correctly in my opinion, that the defendant may not use other acts of alleged dishonesty as a broadcaster to justify the plaintiff's imputation; but the defendant certainly can use such acts to justify this contextual imputation.

17 In Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645, a case governed by the 2005 Act, Simpson J accepted Jones as authority for the proposition that a defendant cannot expand the area of misconduct by pleading a contextual imputation related to the same class of misconduct but framed in general terms (at [61]).

18 Her Honour's remarks were cited with approval by Le Miere J in Ives v the State of Western Australia [No 8] 2013 WASC 277 at [85].

19 Much of the angst evidently generated amongst practitioners by the description of a requirement that, in addition to differing in substance, "there must be a difference in kind" should be assuaged by recalling that the Chief Justice's remarks in Jones were intended to explain, not supplant, the statutory test. In my respectful opinion, his Honour's analysis of the section is both helpful and correct. It emphasises the object of the statutory defence of contextual truth, which is to meet the vice of divorcing a specific defamatory meaning from its substantially true context. The words "difference in kind" are not the words of the statute, and should not be given canonical force (cf Batistatos v RTA [2006] HCA 27; (2006) 226 CLR 256 at [46]) but they inform an understanding of the proper meaning of the statutory defence. Ultimately, however, these questions always fall to be determined according to the circumstances of the individual case.

20 In my view, although the imputation that the plaintiff is a conman may be accepted to differ in substance from the plaintiff's more specific imputations, it falls foul of the section in the manner explained in Jones and in Ange. I accept, as submitted by Ms Chrysanthou, that the only sense in which the matter complained of imputes the character of a conman to the plaintiff is in the specific context of the allegations concerning the affairs of NRE Electrics, primarily by reference to the conduct of Mr Ray. In paragraph 42 of schedule A, Mr Clements expressly says "unfortunately he is a conman" but those words in my view plainly refer to Mr Ray, not the plaintiff. Even if they are capable of referring to the plaintiff they must be understood in the context of the content of the matter complained of viewed as a whole, with its exclusive focus on the conduct of a specific business.

21 For those reasons, subject to a further issue considered below, I have concluded that contextual imputation A should be struck out.

22 Contextual imputation C is:

"The plaintiff incompetently installed a new electricity system into Robyn Rouse's home"

23 The plaintiff's objection to that imputation is that it is incapable of arising.

24 As already noted, the whole emphasis of the programme is on the dishonest conduct of the plaintiff's business partner, who is accused of having ripped people off. Mr Richardson frankly accepted that an imputation of incompetence as opposed to dishonesty could arise from only three words in the matter complained of, underlined in the following extract (paragraph 22 of schedule A to the statement of claim):

"Robin hired the dodgy duo to install a new electricity system into her home but the job was never completed and she's been left to foot the bill, and repair the damage after Nick Ray took off"

25 Mr Richardson submitted that, on the authority of the High Court in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 and the Court of Appeal in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227, a determination that the matter complained of is not capable of conveying the imputation could not be made. Whilst each of those decisions ultimately turned on the content of the particular matter complained of, I accept that the decision in Corby in particular sounds a firm warning to judges at first instance as to the caution mandated before striking out an imputation on the grounds of capacity.

26 Acknowledging the low hurdle the defendants have to meet on this issue, I do not think the broadcast is reasonably capable of conveying an imputation of incompetent workmanship. The words "repair the damage" taken alone offer the barest hint of incompetence; viewed in the context of the matter complained of as a whole (exhibit A on the application before me) I do not think the imputation is capable of arising. It is, in my view, a forced or strained meaning which is incapable of being conveyed.

27 In light of those conclusions, it is not necessary to determine the question of principle on which the parties differed relating to the relevance of the provisions of the Civil Procedure Act to the present application. Ms Chrysanthou submitted that the problem with allowing a contextual imputation in general terms as a plea in response to a plaintiff's imputation in specific terms is that it "opens the door" to further interlocutory steps such as the issue of a subpoena allowing the investigation into all of the plaintiff's affairs even where the defendant has pleaded no particulars of truth going beyond the specific imputation.

28 Mr Richardson submitted that the prospect of broad ranging subpoenas is an irrelevant consideration on the present application. His submission on that issue echoed the remarks of Simpson J in Ange where her Honour observed that, provided the defendant's contextual imputation is capable of being conveyed by the matter complained of, the Court has no supervisory role in its formulation (other than as to form) and, in particular, no power to direct the manner of pleading by reference to notions of fairness: at [61] to [72] especially [70] to [72].

29 In my view, Mr Richardson's submission is correct. The legal question whether a contextual imputation complies with the requirements of s 26 is not properly informed by the considerations of case management provided for in ss 57-58 of the Civil Procedure Act. However, those provisions should serve to focus the Court's attention on the benefit, in some instances, of determining that legal question early and correctly.

30 Thus, although the Court of Appeal in Corby approved the statement that the capacity determination is "an exercise in generosity not parsimony" (at [135] per McColl JA; Bathurst CJ and Gleeson JA agreeing at [1] and [191]), it should not be mistaken for an exercise in procedural generosity. As noted by the Court of Appeal, an adverse capacity determination deprives a party of the opportunity to present his or her case to the jury, a consideration the Court held warrants the application of a "high threshold of exclusion", citing Jameel v Wall Street Journal Europe SPRL [2013] EWCA CIV 1694; [2004] EMLR 89.

31 The force of that consideration is no less in the case of a defendant's contextual imputation. But a procedurally generous approach of allowing questionable imputations to stand entails a different vice, since it has the potential to inflict a considerable expansion of the issues in the proceedings, with consequent threat to the requirement of proportionality recognised in s 60 of the Civil Procedure Act. That is not to derogate from the principles stated in Corby, but simply to acknowledge that in a clear case, the Court should not resile from striking out an imputation not reasonably capable of being conveyed by the matter complained of for want of confidence or moved by notions of generosity.

32 It remains to consider an issue raised by Mr Richardson as to the appropriateness of striking out a contextual imputation in advance of trial. The argument against doing so rests on the fact that, until trial, it is not known whether the plaintiff will succeed on all of his imputations. That is a relevant consideration because, as to two of the elements of the defence under s 26, the force of the defence turns on the fate of the plaintiff's imputations.

33 The first is the requirement that the contextual imputations be "other" imputations that are carried "in addition to" the plaintiff's imputations. The second is the requirement to prove that the "defamatory imputations" do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

34 Mr Richardson submitted accordingly that the issue whether the general contextual imputation that the plaintiff is a conman is capable of meeting the requirements of the section should await the jury's determination as to the meanings specified by the plaintiff. He submitted that, if the jury finds that the plaintiff's imputation 4(e) is not conveyed, there could be no doubt that the contextual imputation arises "in addition to" the plaintiff's imputations.

35 This issue does not arise in respect of contextual imputation C, since the basis for striking out that imputation is that it is not capable of arising. However, it is an argument which could have some force in the case of contextual imputations objected to on the basis that they are not capable of meeting either of the two elements of s 26 the force of which turns on the fate of the plaintiff's imputations.

36 While there will be cases in which the appropriate course will be to await the trial, I do not think the considerations of fairness properly raised by Mr Richardson can be elevated to a procedural rule. Different considerations of fairness will arise in different cases.

37 In the present case, whilst it is theoretically possible that the jury could reject the plaintiff's imputation 4(e) but find the defendants' contextual imputation A conveyed, it is an outcome which is very unlikely, in my view. There are considerations of fairness which favour the determination of this question now, namely, the spectre of an expansion of other interlocutory processes raised by Ms Chrysanthou. Accordingly, having reached the conclusion I have as to contextual imputation A, I consider the appropriate course in this case is to strike it out at the interlocutory stage.

38 The orders are:

(a) That the defendants' contextual imputations A and C be struck out;

(b) That the defendants have leave to amend their defences in accordance with these reasons and the matters previously agreed between the parties within 14 days.

Decision last updated: 27 October 2014