FEDERAL COURT OF AUSTRALIA Adeang v The Australian Broadcasting Corporation [2016] FCA 1200 File number: NSD 552 of 2016 Judge: RARES J Date of judgment: 10 October 2016 Catchwords: DEFAMATION – Defamation Act 2005 (NSW) ss 25, 26 – Federal Court Rules 2011 – requirements for pleadings pursuant to r 16.02 – pleading of imputations and contextual imputations – consideration of principles for pleading defamatory meaning – whether imputation of suspicion must identify the holder of that suspicion – consideration of principles for pleading an imputation of suspicion – Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669 not followed and Fairfax Media Publications v Zeccola [2015] NSWCA 329 distinguished DEFAMATION – form of imputations – whether imputation pleading that plaintiff had so conducted himself as to give rise to suspicion was vague, unspecific and defective for failing to identify the person who held suspicion – need for imputation and contextual imputation to attribute an act or condition to plaintiff sufficiently related to nature and context of matter complained of DEFAMATION – whether particulars of justification and contextual truth embarrassing or defective in form – necessity for precision in particulars of truth and that they be capable of supporting pleaded imputation being justified Legislation: Federal Court Rules 2011 r 16.02 Federal Court of Australia Act 1976 (Cth) s 37M Defamation Act 2005 (NSW) ss 8, 25, 26 Defamation Act 1974 (NSW) Cases cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 APN New Zealand Ltd v Simunovich Fisheries Ltd [2010] 1 NZLR 315 Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 Crosby v Kelly [2013] FCA 1343 David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346 Drummoyne Municipal Corporation v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Edwards v Bell (1824) 1 Bing 403; 130 ER 162 Fairfax Media Publications v King [2015] NSWCA 172 Fairfax Media Publications v Zeccola [2015] NSWCA 329 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 George v Rockett (1990) 170 CLR 104 Greig v WIN Television NSW Pty Ltd [2007] NSWSC 1118 Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632 Hough v London Express Newspaper Ltd [1940] 2 KB 507 Hussein v Chong Fook Kam [1970] AC 942 Jones v Skelton [1963] 63 SR (NSW) 644 Lewis v Daily Telegraph Ltd [1964] AC 234 Liversidge v Anderson [1942] AC 206 Lloyd v David Syme & Co Ltd [1986] AC 350 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Purcell v Cruising Yacht Club of Australia [2003] NSWSC 245 R v Hillier (2007) 228 CLR 618 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669 Shah v Standard Chartered Bank [1999] QB 241 Weaver v Lloyd (1824) 2 B&C 678; 107 ER 535 Webb v Bloch (1928) 41 CLR 331 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 Willmett v Harmer (1839) 8 C&P 695; 173 ER 678 Date of hearing: 29 August 2016 Registry: New South Wales Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 82 Counsel for the Applicant: Mr T Tobin QC with Mr M Richardson Solicitor for the Applicant: Mark O'Brien Legal Counsel for the Respondent: Mr ATS Dawson with Ms C Amato Solicitor for the Respondent: Australian Broadcasting Corporation ORDERS NSD 552 of 2016 BETWEEN: DAVID ADEANG Applicant AND: THE AUSTRALIAN BROADCASTING CORPORATION Respondent JUDGE: RARES J DATE OF ORDER: 10 OCTOBER 2016 THE COURT ORDERS THAT: 1. The applicant: (a) have leave to further amend by adding imputations (e) and (f); and (b) be refused leave to further amend by adding imputation (h) to the amended statement of claim in the form proposed in the further amended statement of claim annexed to his interlocutory application dated 8 August 2016. 2. The applicant file and serve a further amended statement of claim incorporating the amendments allowed pursuant to order 1 on or before 17 October 2016. 3. The respondent's first contextual imputation pleaded in paragraph 11(a) of its defence and particulars of contextual truth in annexure A thereto (a)-(q), (aa), (dd), (ee), (aaa)-(ccc), (ggg) and (iii)-(ooo) be struck out. 4. The respondent file and serve its defence to the further amended statement of claim on or before 8 November 2016. 5. The applicant file and serve any reply on or before 22 November 2016. 6. The proceedings be stood over for directions on 2 December 2016. 7. The respondent pay two thirds of the applicant's costs of his interlocutory application dated 8 August 2016. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT RARES J: 1 David Adeang was the Minister for Justice of the Republic of Nauru on 23 February 2016 when the Australian Broadcasting Corporation (ABC) broadcast on its television stations News 24 and ABC1 a story during its Lateline television program. The broadcast was nearly 12 minutes long. The ABC also published an article on its website containing a transcript and a video of the broadcast. Mr Adeang alleged in the originating application and statement of claim that he filed on 14 April 2016 that both publications defamed him. 2 The two matters complained of are relevantly identical and I have annexed to these reasons a copy of the transcript and description of the images broadcast on both television stations that comprises the first matter complained of. The annexure uses convenient numbering of various portions of the broadcast segment. It is only necessary to discuss that matter complained of in these reasons because the parties agreed that identical consequences attended the fate of their arguments in relation to the website publication of the matter complained of. Background 3 Mr Adeang originally pleaded that the matter complained of conveyed, in its natural and ordinary meaning, four imputations of and concerning him that were defamatory of him. After some communication between the parties, Mr Adeang filed an amended statement of claim on 21 June 2016 that refined the four imputations to address issues that the ABC had raised. The four imputations (about which the ABC has not raised any issue as to their form or the capacity of the matter complained of to convey them) were: (a) The Applicant obstructed the administration of justice on Nauru by ensuring that the shocking death of his wife was not properly investigated. (b) The Applicant had the Commissioner of Police removed from his position so as to prevent a proper investigation into the shocking death of his wife. (c) The Applicant caused the resident magistrate in Nauru to be deported to prevent a proper investigation into the shocking death of his wife. (d) The Applicant cancelled the visa of the Chief Justice in Nauru to prevent a proper investigation into the shocking death of his wife. 4 On 30 June 2016, the ABC filed its defence in which, as is usual in defamation proceedings, it denied that the matter complained of was capable, first, of being, or was in fact, defamatory of Mr Adeang, and secondly, of conveying, or in fact conveyed, each of the imputations. The ABC's substantial defence, however, was a plea of contextual justification. The ABC pleaded that if the matter complained of were found to have conveyed any of Mr Adeang's imputations and, it was or they were defamatory of him, the matter complained of carried in addition to each such imputation, the following two contextual imputations: 1 David Adeang, one of the most powerful figures in Nauruan politics, systematically violates the principles of democracy and the rule of law in Nauru in order to further his own agenda. … 2 David Adeang, as a Minister of the Nauruan Government, obstructed the administration of justice on Nauru. … 5 The defence asserted that the contextual imputations were substantially true and that by reason of the substantial truth of the contextual imputations, publication of so many of Mr Adeang's imputations that are found to be conveyed and defamatory of him, did not further harm his reputation. 6 This prompted Mr Adeang to apply, in his interlocutory application dated 8 August 2016, first, to further amend his statement of claim by adding four additional imputations and, secondly, to strike out the contextual imputations on the grounds that they were defective in form and thus disclosed no reasonable cause of action or they were likely to cause prejudice, embarrassment and delay in the proceedings. The four new imputations were as follows: (e) The plaintiff [sic] behaved in such a way as to deserve to be reasonably suspected of an involvement in the unlawful killing of his wife. (f) The plaintiff [sic] behaved in such a way as to deserve to be reasonably suspected of the murder or manslaughter of his wife. (g) The plaintiff [sic] acted corruptly as the justice minister of Nauru by covering up the unlawful killing of his wife. (h) The plaintiff [sic] acted corruptly as the justice minister of Nauru by covering up his own role in the death of his wife. 7 At the hearing, Mr Adeang did not press imputation (g) and said that imputation (e) was a "fall back", if he failed to establish that the matter complained of conveyed imputation (f) and that it was defamatory of him. 8 In its turn, the ABC contended that the matter complained of was not capable of conveying imputations (e), (f) and (h). Thus, the issues that I must decide are: whether the matter complained of is capable of conveying each of imputations (e), (f) and (h) (the capacity issue); and whether each of contextual imputations 1 and 2 is defective in form or embarrassing (the contextual imputations issue). The legislative scheme 9 Relevantly, Pt 16 of the Federal Court Rules 2011 specifies the requirements for pleadings for all matters in this Court, including defamation actions. A pleading must: state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that opponent at the trial (r 16.02(1)(d)); not be evasive or ambiguous (r 16.02(2)(c)); not be likely to cause prejudice, embarrassment or delay in the proceeding (r 16.02(2)(d)); not fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading (r 16.02(2)(e)). 10 The overarching purpose of the Rules is to facilitate the just resolution of disputes, according to law, as quickly, inexpensively and efficiently as possible as prescribed by s 37M(1) of the Federal Court of Australia Act 1976 (Cth). The Court must interpret and apply the Rules and must exercise any power or duty imposed by them, in the way that best promotes that overarching purpose (s 37M(3)). 11 In 2005 and 2006 each of the States and Territories enacted defamation legislation that is substantially uniform with the Defamation Act 2005 (NSW) (the 2005 Act). The requirements for pleading defamatory imputations, that were a plaintiff's cause of action under the Defamation Act 1974 (NSW) (the 1974 Act), bedevilled the way in which that Act operated and cannot be transposed to the construction of the 2005 Act or its analogues. 12 Under s 8 of the 2005 Act, a person has a single cause of action for defamation in relation to the publication of defamatory matter about the person "even if more than one defamatory imputation about the person is carried by the matter". That restored the position at common law. However, each of ss 25 and 26 of the 2005 Act uses the expressions "imputations" and "of which the plaintiff complains". The former, s 25, creates the defence of justification that will be made out if the defendant "proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true". At common law, it is a defence if the defendant proves that the words complained of are true in substance and effect and that this meets the sting of the defamatory publication: Webb v Bloch (1928) 41 CLR 331 at 366-367 per Issacs J citing Weaver v Lloyd (1824) 2 B&C 678 at 679 [107 ER 535 at 535] and Edwards v Bell (1824) 1 Bing 403 at 409 [130 ER 162 at 165] per Burrough J. 13 Next, s 26 of the 2005 Act creates a defence of contextual truth that was not available at common law. Although the 1974 Act introduced a similar defence, that was a defence, not to publication of the matter complained of, but to the separate cause of action constituted by publication of each defamatory imputation that a plaintiff pleaded. Relevantly, s 26 now provides: 26 Defence of contextual truth 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. The ascertainment of defamatory meaning 14 Clearly enough s 26 requires each party to formulate meanings about the matter, being an act or condition, asserted or attributed to the plaintiff or (as that person is called under the Federal Court Rules) applicant. This is the accepted explanation of the meaning of an "imputation" in the context of the law of defamation as Gleeson CJ demonstrated in Drummoyne Municipal Corporation v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 136F-137F. 15 In essence, where a person alleges that a publication conveys a defamatory meaning, the pleader must allege that meaning in the form of an imputation of and concerning the plaintiff. If the defendant seeks to justify an imputation or allegation of the commission of a criminal offence or misconduct arising from, or contained in, the matter complained of, such a defence must be pleaded and proved with all the particularity and strictness of the proof of an indictment e.g. Willmett v Harmer (1839) 8 C&P 695 at 697 [173 ER 678 at 679] per Lord Denman CJ in summing up; Fraser's Law of Libel and Slander (6th ed; Butterworth & Co, 1925) at 152-153; Crosby v Kelly [2013] FCA 1343 at [35]-[36] per Rares J. The particulars of the plea of justification define what the defendant has to prove in order to establish the imputation is substantially true. 16 An imputation must embody or distil a defamatory meaning that the pleader alleges is conveyed by the publication complained of. Ordinarily, it will be self-contained. At an early stage of a defamation action it is usually important to deal with arguments about the capacity of a matter complained of to convey the imputations or meanings on which each party relies. Of course, the question of whether a publication is capable of conveying a defamatory meaning is a question of law: Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at 189-190 [9]-[11] per Gleeson CJ, McHugh, Gummow and Heydon JJ with whom Kirby J agreed at 192 [19], applying Jones v Skelton [1963] 63 SR (NSW) 644 at 650 per Lord Morris of Borth-y-Gest for himself and Viscount Radcliffe, Lords Jenkins and Guest and Sir Kenneth Gresson. That is, the Court will assess whether the imputation expresses a meaning, comprising an act or condition asserted of or attributed to the plaintiff, that the ordinary reasonable person could understand the matter complained of to convey. Accordingly, from a pleading perspective, the matter complained of must be capable of conveying or carrying that imputation. That is a different issue to the one that usually arises at a trial, where the question of fact for the jury or judge is whether that imputation was, in fact, conveyed to the ordinary reasonable reader, listener or viewer. 17 It is often a matter of impression as to whether the matter complained of either conveys one or more particular imputations (or meanings) that specifically relate to one or more acts or conditions or conveys, perhaps in addition or separately, a general act or condition that, for example, encapsulates a character trait, such as dishonesty. I will return to this issue when considering the contextual imputations. 18 In deciding the question of law, whether a publication is capable of conveying a particular meaning, a Court is guided by the test of whether the ordinary reasonable reader, listener or viewer, depending on the medium of publication (in these reasons I will use the expression ordinary reasonable viewer because the matter complained of was a television broadcast), would understand the matter complained of in a defamatory sense: Favell 221 ALR at 189-190 [9]-[11]; Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505-506 per Brennan J with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed; see too Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at 467-468 [5]-[7], 484 [60] where French CJ, Gummow, Kiefel and Bell JJ also discussed the common law test to assess whether a matter is defamatory. 19 Hunt CJ at CL gave a comprehensive description of the variety of judicial formulations of the characteristics of the ordinary reasonable viewer relevant to the assessment of the capacity of a matter complained of to convey a meaning and to be defamatory of a plaintiff in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164A-167G, with Mason P and Handley JA agreeing. Relevantly, for these proceedings, Gleeson CJ, McHugh, Gummow and Heydon JJ explained in Favell 221 ALR at 190 [10]-[11] that, in considering a publication that, like the matter complained of in these proceedings, drew a link between the death of Mrs Adeang and a variety of events and circumstances that it linked to Mr Adeang, the following principles applied in ascertaining its capacity to convey the pleaded imputations relied on by each party: [10] In determining what reasonable persons could understand the words complained of to mean, the court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd ([1964] AC 234 at 258): The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs. [11] Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd ([1964] AC 234 at 277), that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said ([1964] AC 234 at 285): It is not … correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded. (emphasis added) 20 Moreover, as Gleeson CJ so lucidly explained in Drummoyne 21 NSWLR at 137B-F, in almost any case it will be possible to plead gradations of the seriousness of acts or conditions that a person wishes to allege a matter conveyed about him or her and to make those more refined or more general. The result depends, first, on a pleader's choice and, secondly, as Gleeson CJ said, when the Court must determine whether the pleaded imputation is sufficiently specific: "If a problem arises, the solution will usually be found in considerations of practical justice rather than philology" (at 137B-C). He continued (at 137E-F): It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says "X is disgusting", the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter. (emphasis added) 21 Of course, the Chief Justice there was considering a requirement of a rule of the Supreme Court of New South Wales in respect of the 1974 Act prescribing how an imputation had to be pleaded so as to "specify" the act or condition that a plaintiff claimed the matter complained of attributed to him (see 21 NSWLR at 136E-137C). Nonetheless, as he pointed out the purpose of the rule was to avoid confusion and uncertainty in a practical way, appropriate to the circumstances of each case: Drummoyne 21 NSWLR at 140E-F. That analysis is also appropriate to apply to rr 16.02(1)(d), 16.02(2)(c), (d) and (e) of the Federal Court Rules when it is necessary to assess whether a pleaded imputation or meaning is framed with a sufficient degree of specificity to enable the Court to achieve the overarching purpose prescribed in s 37M(1) and (3) of the Federal Court Act. 22 However, nothing I have written about the need for a pleaded meaning or imputation to be sufficiently specific should be understood as encouraging meretricious pleading debates of the unfortunate nature that bedevilled the conduct of defamation actions under the 1974 Act. Those debates were redolent of Lord Atkin's use, in his classic speech in Liversidge v Anderson [1942] AC 206 at 245, of the debate between Humpty Dumpty and Alice in Through the Looking Glass. There his Lordship debunked a strained construction of words that, if given their ordinary and natural meaning, could not carry such a construction: cf Marsden 43 NSWLR at 162C-F. 23 Defamation quintessentially concerns the meaning of words in the sense that an ordinary reasonable person in the audience to whom the words are conveyed would understand them in their context. That is the situation to which a Court must have regard when assessing whether a pleaded meaning or imputation is expressed with sufficient precision to give the opposing party fair notice of the case that the pleader wishes to advance at the trial and does so in a way that will not cause prejudice. The capacity issue – the parties' submissions 24 The ABC argued that imputations (e) and (f) were defective because they did not specify the person who held the pleaded suspicion, as required by Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669 at 671C-D per Hutley JA, 679C-D per Glass JA and 680G per Priestley JA. It also contended that McColl JA had stated a similar principle in Fairfax Media Publications v Zeccola [2015] NSWCA 329 at [103]-[107], with Macfarlan JA and Sackville AJA agreeing. The ABC submitted that the broadcast did not convey any objective basis on which Mr Adeang reasonably could be thought to have acted so as to give rise to the reasonable suspicion asserted in each of imputations (e) and (f). The ABC argued that imputations (e) and (f) were ambiguous and unspecific as to who held the suspicion. It contended that the matter complained of did not contain anything from which the ordinary reasonable viewer could infer that any person or authority held a reasonable suspicion that Mr Adeang was involved in the death of his wife, far less that he had killed her intentionally or otherwise. 25 The ABC initially contended that imputations (e) and (f) did not differ in substance, but during the course of argument, it appeared to accept that imputation (e) could arise if the ordinary reasonable viewer understood the matter complained of to convey "involvement" as connoting that Mr Adeang was an accessory to his wife's unlawful killing, as opposed to imputation (f) attributing to him the role as a principal in her death. Mr Adeang also appeared to accept in argument, for his part, that each of imputations (e), (f) and (h) would not be capable of being conveyed if the allegation of unlawful killing alleged in the now abandoned imputation (g) had no sufficient basis in the matter complained of. 26 The ABC argued that imputations (e) and (f) were expressed vaguely and unspecifically. It contended that each was a tortured and unreasonable formulation and one that the ordinary reasonable viewer could not have understood the matter complained of to have conveyed. The ABC submitted that its reporter, Ms Stein, expressly disclaimed in par 35 of the matter complained of any suggestion that Mr Adeang was involved in the death of his wife. Rather, it contended, the ordinary reasonable viewer would have understood that the broadcast was raising a much more serious issue, namely an issue of real concern about the rule of law in Nauru. It submitted that the matter complained of could not convey that Mr Adeang had any connection to the circumstances of his wife's death, let alone, that he had killed her. 27 The ABC submitted that the structure of the matter complained of was that it raised questions as to what had happened to Mrs Adeang and that Mr Adeang had not answered those questions. However, it argued that the ordinary reasonable viewer could not infer that the matter complained of had conveyed any meaning at the level of seriousness or precision of any of imputations (e) and (f). It contended that there was nothing in the matter complained of to suggest that Mr Adeang's behaviour created a reasonable suspicion that her death was connected to some criminal act on his part. Indeed, the ABC argued that the thrust of the matter complained of was the dearth of information about the circumstances in which Mrs Adeang died from which any conclusions of the kind pleaded in imputations (e) and (f) could be conveyed. Thus, it argued that the most a viewer, not living in an ivory tower, could understand the matter complained of to be saying was encapsulated in the concluding statement in par 51, where Mr Law said that it might very well be a case of suicide, but the real problem was that no-one knew because there had not been a proper investigation. 28 The ABC argued that if the basis for any suspicion was to be found in Mr Adeang's behaviour the subject of the existing imputations (b)-(d), then imputations (e) and (f) did not differ in substance from the former. 29 Mr Adeang contended that imputation (h) was conveyed because the thrust of the matter complained of was that there were real concerns about the rule of law in Nauru arising from the inadequacies in the investigation into Mrs Adeang's death and the removal of, or interference with the exercise of powers by, senior officials of the Republic. He argued that the matter complained of left open that Mrs Adeang may have met with foul play and that he had made sure that no-one could enquire into what his role was. Mr Adeang submitted that this impression was reinforced by the broadcast's emphasis on his refusal to give answers to the questions that Ms Stein wanted him to answer. He submitted that the clear impression that the matter complained of conveyed was that he had a role in his wife's death and had ensured that that role would not be investigated. The capacity issue – consideration 30 A television broadcast is a continuous stream of sounds and images that, usually, the ordinary reasonable viewer will see once, in a situation, probably at home, where he or she is not concentrating intently: cf Marsden 43 NSWLR at 165G-166E. He or she ordinarily will not play the program back or take it in slowly, as might occur reading a newspaper, book or an online written publication. Thus, although he or she must be treated as having seen and heard the whole of the broadcast, the ordinary reasonable viewer can have a greater capacity to draw inferences when viewing a television broadcast than in the case of a less transient form of publication. 31 The matter complained of centred on the role of Mr Adeang in numerous events that occurred in Nauru. Ms Alberici's introduction (in par 1 of the annexure to these reasons) set the scene by, first, referring to Mrs Adeang having been found burnt to death in the garden of their home and, secondly, stating that: The circumstances surrounding her shocking end remain unexplained and the apparent absence of a thorough investigation has raised serious concerns about Nauru's commitment to the rule of law. 32 That invited the viewer to approach what followed in the broadcast with an enquiring mind as to why his wife's shocking death in the garden of their home had not been thoroughly investigated when Mr Adeang, the Minister for Justice, held so much power in Nauru. Indeed, the whole tone of the matter complained of was capable of being understood to suggest that Mr Adeang had a motivation to abuse his powers because he had something to hide about his own responsibility in how his wife died. 33 The journalist, Ms Stein, described Mr Adeang as holding "the reins of power", and reinforced that with statements by both Mr Bliim, the former Solicitor-General of Nauru, and the Hon Geoffrey Eames, the former Chief Justice of Nauru (pars 2-9). Mr Bliim said that Mr Adeang "didn't want anyone on the island to hold he [sic] or others accountable" (par 8). The broadcast then moved through how Mr Adeang caused each of the Republic's former Director of Police, Richard Britten, the former resident magistrate and coroner, Peter Law, and Mr Eames to be either suspended or removed from or to be unable to perform the duties of their official positions once each had fallen out of favour or crossed swords with Mr Adeang in some way. 34 The broadcast could be thought to suggest a connection between the difficulties encountered by Mr Law and Mr Eames, when Mr Law granted an injunction interfering with Mr Adeang's desire to deport Rod Henshaw, a person connected to the previous government (pars 8-23). Mr Henshaw's own wife had died one month before his deportation and he briefly described his grief about her death (par 20). Ms Stein asserted that after Mr Law had granted the injunction against Mr Henshaw's deportation, he had called for police "to investigate further the shocking death of Madelyn Adeang, the wife of justice minister David Adeang" (par 24). 35 The matter complained of then showed Mr Henshaw describing an occasion when Mrs Adeang came into his bar to celebrate her birthday shortly before her death (par 25). This was the only other footage in which Mr Henshaw spoke in the matter complained of and he did so about Mrs Adeang, rather than the circumstances of his own deportation. Immediately after this footage, Ms Stein returned to comment on the uncertainty surrounding Mrs Adeang's death and how Mr Britten had found out about it after which he had to step in to order a full investigation (pars 26-27). 36 Mr Law then said that Mr Adeang had told people what to say in three or four paragraphs of a document that he said had stated (pars 28-32): … simply that there had been an accident and that the late Mrs Adeang had left the house and was carrying a bucket of petrol to carry out a burn-off; and that, somehow, an accident occurred whereby that bucket of petrol became alight and she was burnt to death. There must have been neighbours and other people, perhaps, around who may or may not have witnessed; that were near to the scene of Madelyn Adeang's death. 37 Ms Stein and Mr Eames then appeared to conclude that a coronial inquest should have been held (pars 33-34) after which Ms Stein said the following, on which the ABC relied as a disclaimer (par 35): While it's not suggested that David Adeang was involved in the death of his wife, the Nauru police investigation was proving difficult. (emphasis added) 38 Next, the matter complained of reported Mr Britten as saying that most people were refusing to talk to the police and that it was highly likely that Mr Adeang's standing in the community had influenced some of them. Mr Britten said that no proper investigation or inquest had occurred while he had been on Nauru and that some neighbours in their statements had "reported a heated argument between a male and female just prior to Madelyn's death" (pars 36-38). Mr Bliim then is shown saying that no-one knew whether Mr Adeang was in the vicinity or present at the time "or what his position was", but that in a "normal police investigation" he should have been questioned (pars 39-44). 39 Nothing in the matter complained of suggested that Mr Adeang had given a statement to, or been questioned by, any authorities in Nauru about his wife's death or his whereabouts at the time of its occurrence. But, Ms Stein next described the difficulties she had in getting answers to her questions. The program shows her sticking a note, apparently asking Mr Adeang questions, on the gate of the consular residence in Brisbane. She said that Mr Adeang's response the next day was to refuse to answer a list of questions. The matter complained of reported that he said that those questions were "outrageous and deeply offensive" but that he wanted "it on record for clarification purposes that Nauru rarely if ever has coronial inquests" (pars 45-59). 40 Next, Ms Stein reported that Mr Law agreed that inquests were rare but that they were called when police investigations had failed to indicate the cause of death and that Mr Adeang had missed the point. The matter complained of concluded with Mr Law saying while Mrs Adeang's photograph appeared on screen (pars 50-51): It's very disappointing that it would happen to anyone: that there wouldn't be a proper explanation about someone's death. It might very well be the circumstances that the late Mrs Adeang committed suicide: that could be. But there needs - or should have been - some proper investigation by the police. (emphasis added) 41 In my opinion, the ordinary reasonable viewer could have understood the matter complained of to invite him or her to speculate why the death of Mrs Adeang had not been properly investigated. In that context the viewer was invited to ask why her husband, a man who not only possessed, but also had exercised, the power to suspend or prevent the Director of Police, the magistrate (who was also the coroner) and the Chief Justice from exercising their functions, had not (according to what was broadcast) given, or even been asked to give, any explanation of where he was or what he was doing when his wife was burnt to death in the garden of their home, just after neighbours had heard a heated argument between a male and a female there. 42 Although Ms Stein said (in par 35) part way through the broadcast that it was "not suggested that David Adeang was involved in the death of his wife", the thrust of the matter complained of was capable of conveying that there was good reason to suspect that he was. The broadcast told the viewer that neighbours had heard a male and female having had a heated argument just prior to Mrs Adeang's death in the couple's garden and that Mr Adeang had not given a statement to police, that his whereabouts at the time of the death were not known and that although the former Chief Justice said that there should have been an inquest (par 34), at which the viewer was invited to think Mr Adeang would be required to answer questions, he, the Minister for Justice, could, and had removed, any official who might try to hold him to account (par 8). The viewer could also consider that the former coroner, Mr Law, was saying that Mr Adeang had spoken to witnesses about what they had then told the police (pars 28-30). 43 Thus, the matter complained of was capable of being understood by the ordinary reasonable viewer as suggesting that Mr Adeang should be looked at with suspicion or that he had something to hide in connection with his wife's death. As Lord Devlin said in Lewis [1964] AC at 285, in a passage approved in Favell 221 ALR at 190 [11], and equally apposite to this case: A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded. (emphasis added) 44 The Privy Council said in Jones [1963] SR (NSW) at 651, in a passage later applied by Lord Keith of Kinkel (on behalf of himself and Lords Elwyn Jones, Roskill and Griffiths) in Lloyd v David Syme & Co Ltd [1986] AC 350 at 363H-364A: The reader, a jury might conclude, was invited to adopt a suspicious approach and so to be guided to the real explanation of what had taken place - an explanation which the writer ... did not care or did not dare to express in direct terms. (emphasis added) 45 Lord Keith found, overturning the Court of Appeal (David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346), that an article in The Age newspaper conveyed imputations that the captain of the West Indies cricket team, Clive Lloyd, was suspected of, first, having committed a fraud on the public by, in effect, fixing the result of a World Cup Cricket match for financial gain and, secondly, of being prepared to do the same in the future for final gain. His Lordship rejected the publisher's argument that the article contained a disclaimer of those imputations (of suspicion by an unnamed person) saying that the words relied on to disclaim "would rather convey the impression that the author is anxious to wound but fearful to strike too obviously" (Lloyd [1986] AC at 363G-H). 46 I reject the ABC's argument that an imputation of suspicion must itself identify a person or authority who held it. In my opinion, the conclusion to the contrary of the Court of Appeal in Sergi [1983] 2 NSWLR at 671C-D, 679C-D and 680G is plainly wrong in principle. The defamatory capacity of any publication depends on what the publication conveys, or is capable of conveying, to an ordinary reasonable viewer. Their Honours cited no authority for their assertion that an imputation of suspicion had to identify a person or authority who held that suspicion. It is contrary to a long line of authority. In Hough v London Express Newspaper Ltd [1940] 2 KB 507 at 515, Goddard LJ explained the principle saying: In the case of words defamatory in their ordinary sense the plaintiff has to prove no more than that they were published: he cannot call witnesses to prove what they understood by the words; nor will it avail the defendant to call any number of witnesses to say that they did not believe the imputation. The only question is, might reasonable people understand them in a defamatory sense? ... If words are used which impute discreditable conduct to my friend, he has been defamed to me, although I do not believe the imputation, and may even know that it is untrue. So if it be said of A. that he is a forger, no witnesses are necessary or can indeed be called to say that they believed the charge … (emphasis added) 47 If the publication complained of conveys a defamatory meaning that the viewer knows to be untrue, the mud can still stick. The identity of a person who holds a suspicion may or may not be an element of a sufficiently precise pleaded imputation – but the sufficiency of such an imputation necessarily is a reflex of the matter complained of. As Lord Devlin emphasised, you cannot make a rule about the fundamental question of what meaning the words, in the context in which they were published, convey to the ordinary reasonable viewer: Lewis [1964] AC at 285. And, the Privy Council had no difficulty in Lloyd [1986] AC 350 in concluding that the jury had been entitled to find that the article complained of conveyed imputations of suspicion that did not include the identity of anyone who held the suspicion. 48 If a publication conveys only that the plaintiff has been charged with a criminal offence, it is capable only of conveying an imputation that the police or prosecutor had reasonable grounds to suspect that the plaintiff had committed the offence alleged and cannot convey an imputation of guilt: cf Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. There, Mason J held (149 CLR at 301) that the defamatory quality of a publication had to be determined by how the ordinary reasonable viewer would understand it, drawing on his or her own knowledge and experience of human affairs. He held, however, that it was not permissible to reason that a publication was capable of conveying an imputation "merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff". 49 An imputation pleaded in the form that the plaintiff, by his or her conduct, has brought suspicion on himself or herself, without the inclusion of a person or authority who held the suspicion, has been accepted as being capable of being found to have been conveyed by the Privy Council in Lloyd [1986] AC at 363-364, the Court of Appeal of England and Wales in Shah v Standard Chartered Bank [1999] QB 241 at 258B-C, 260E-261C per Hirst LJ, with whom May LJ at 266A-D and Sir Brian Neill at 270D agreed, and the Supreme Court of New Zealand in APN New Zealand Ltd v Simunovich Fisheries Ltd [2010] 1 NZLR 315 at 334-335 [35] per Tipping and Wilson JJ (for themselves and Elias CJ, Blanchard and McGrath JJ). 50 In Shah [1999] QB at 269G-H, May LJ said that a defendant may justify a defamation by pleading and proving that "there are objectively reasonable grounds to suspect the plaintiff" of some act or condition and Hirst LJ said (with his Lordship's emphasis at 261C-D) that it is an essential requisite of such a defence "that it should focus on some conduct on the plaintiff's part giving rise to reasonable suspicion". Indeed, Hirst LJ drew (at 260F-H) on what Hunt J had held in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 160D-E, that a statement of suspicion, without more, "is obviously capable of conveying the suggestion that the plaintiff had so conducted himself as to have warranted that suspicion" (with his Honour's emphasis). McClellan CJ at CL followed this line of authority in Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632 at [79]-[84], as had Nicholas J earlier when refusing to strike out imputations that the plaintiff had pleaded in that form: Greig v WIN Television NSW Pty Ltd [2007] NSWSC 1118 at [10]-[15]. Indeed, Nicholas J said that Sergi [1983] 2 NSWLR 669 was "a case of limited application" relating to the need for an imputation to identify an accuser, if it were pleaded in the passive voice ([2007] NSWSC 1118 at [16]). And, in giving the Supreme Court's reasons in APN [2010] 1 NZLR at 334-335 [35], Tipping and Wilson JJ said that a defendant could rely on strong circumstantial evidence implicating the plaintiff, as grounds for reasonable suspicion, adding: "The circumstantial evidence could hardly have any value unless it 'implicated' the plaintiff by means of an available inference as to the plaintiff's conduct". 51 Moreover, Lord Devlin explained why the identification of a person holding a suspicion cannot always be an essential requirement to plead an imputation. He said in Lewis [1964] AC at 284 (and see per Lord Reid at 260), in a longer passage that repays consideration but is not necessary to set out fully here: Equally, in my opinion, it is wrong to say that, if in truth the person spoken of never gave any cause for suspicion at all, he has no remedy because he was expressly exonerated of fraud. A man's reputation can suffer if it can truly be said of him that although innocent he behaved in a suspicious way; but it will suffer much more if it is said that he is not innocent. (emphasis added) 52 That is how imputations (e) and (f) are framed, namely they assert that the matter complained of conveyed that Mr Adeang had behaved in such a way so that he deserved to be reasonably suspected of either involvement in his wife's unlawful killing or her murder or manslaughter. In my opinion, for these reasons it was open to Mr Adeang to plead those two imputations in that form and they are capable of being the subject of defences, as the authorities to which I have referred show. 53 In Zeccola [2015] NSWCA 329 at [103]-[107], McColl JA, with whom Macfarlan JA agreed, upheld the decision of the primary judge to strike out an imputation framed in terms that "there are reasonable grounds to suspect that the [plaintiff] permitted Palace Films to trade when it was insolvent", but which did not name any person or authority by whom that suspicion was held. McColl JA held that it had been open to the primary judge to find that the matter complained of there did not convey that imputation ([2015] NSWCA 329 at [107]). Her Honour distinguished Nicholas J's decision in Greig [2007] NSWSC 1118 and Kirby J's decision in Purcell v Cruising Yacht Club of Australia [2003] NSWSC 245, on the basis that in each of those cases "it was clearly arguable from the matter complained of that someone held such a suspicion" ([2015] NSWCA 329 at [105]). She held that in such a case the pleaded imputation was not defective in form. 54 In my opinion, Zeccola [2015] NSWCA 329 at [107] simply decided that it had been open to the primary judge to strike out the pleaded imputation because it was not capable of being conveyed by the matter complained of. McColl JA did not formulate or apply a principle that it was necessary for an imputation that a plaintiff was suspected of some act or condition either itself to identify, or be grounded in the publication complained of which identified, a person or authority who held that suspicion. 55 If the matter complained of conveys such a suspicion without identifying by whom it is held, it is still defamatory, as Lord Devlin demonstrated in Lewis [1964] AC at 284: see too Lloyd [1986] AC at 363-364. If a defendant is to justify such an imputation, he, she or it must prove the facts from which any asserted suspicion arises as the inference to be drawn, that objectively such a suspicion is reasonable based on those facts and also, but only where that state of mind is relevant, that the defendant or some person or authority held it: cf George v Rockett (1990) 170 CLR 104 at 115-116 where Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ discussed what suffices to establish the state of mind of having reasonable grounds to suspect. They adopted what Lord Devlin said in Hussein v Chong Fook Kam [1970] AC 942 at 948 that in its ordinary meaning suspicion "is a state of conjecture or surmise where proof is lacking" (170 CLR at 115). 56 Obviously enough, the use of an imputation of suspicion cannot be available to circumvent the principle that the repetition of another's defamatory statement or of a rumour requires the republisher to defend the original publication. It is no defence to plead that the matter complained of simply repeated an earlier publication. The defendant must prove that what he, she or it repeated is defensible as if the defendant had been the originator of the matter complained of. That is, as Mason J said in Harrison 149 CLR at 300, the defendant gives his (her or its) imprimatur to the rumour because, by passing it on, the defendant gives it credence, implying that it is, or may be, well-founded. 57 A bare attribution of suspicion, without identifying an objective basis from which a reasonable inference warranting that suspicion can be drawn, is no different from a statement that the person is guilty of the subject, disguised by use of the word "suspicion". That is why, as Lord Devlin observed in Lewis [1964] AC at 285 that talking about smoke very often suggests a fire, but it is possible to exclude the suggestion. 58 A publication raising suspicion usually has other content from which the ordinary reasonable viewer may conclude that it is conveying guilt. Indeed, the identity of a person who is said to entertain or communicate that he or she suspects the plaintiff of some act or condition can be, depending on the actual publication, as irrelevant as that of a person who is the source of a rumour. If the defendant wants to justify an imputation of a suspicion, the defendant must prove the truth of the facts on which the suspicion is based and that the state of mind (of suspicion) is the only reasonable inference to draw from those facts. Anything less, leaves open the inference that the suspicion (just as a rumour) is well founded. In the end, the question is what does the matter complained of convey to the ordinary reasonable viewer. Once the meaning conveyed is ascertained, the issue of how that meaning is to be defended or attacked in the litigation becomes clear. 59 If the matter complained of were not suggesting, as Ms Stein said (in par 35), that Mr Adeang was involved in the death of his wife, it was capable of conveying to the ordinary reasonable viewer that the reason why it had raised a list of questions that Mr Adeang had refused to answer was that, as imputation (f) alleged, he had behaved in such a way as to deserve to be reasonably suspected of the murder or manslaughter of his wife. 60 The matter complained of was capable of being understood as inviting the ordinary reasonable viewer to look at Mr Adeang's silence in the face of all of the circumstances, including his speaking to witnesses and potential to influence persons responsible for investigating deaths as Minister for Justice, as raising a reasonable suspicion of his having been the man whom his neighbours had heard arguing with a woman, being his wife, just before she burnt to death in their garden. Of course, the matter complained of stopped short of a direct accusation of guilt, as the ordinary reasonable viewer would understand. That viewer could appreciate that the matter complained of suggested that other possible causes of death were open, including suicide and the act of a third person. But the viewer could understand that the broad impression conveyed was that Mr Adeang had so acted as to raise reasonable grounds to suspect that he had committed murder or manslaughter in all of the circumstances disclosed. 61 For these reasons, I am of opinion that imputation (f), was capable of being conveyed by the matter complained of. The process by which an ordinary reasonable viewer assesses a television program's presentation of circumstantial material will be looser than the process of reasoning that a jury may adopt in a criminal trial. The latter process involves the jury weighing all the circumstances. Each of those circumstances, taken individually, might be a very weak reed for an inference of guilt or might also support an inference of innocence, but when all of the circumstances are considered together, they can cohere into proof of guilt beyond reasonable doubt, as Gummow, Hayne and Crennan JJ explained in R v Hillier (2007) 228 CLR 618 at 638-639 [48]-[49]. 62 It also follows, that imputation (e) is an inference open to be drawn from the matter complained of. It is grounded on a lesser apparent connection between Mr Adeang and his wife's death, namely involvement, in some way or other, with an unlawful act that caused her to die. This inference is be reasonably open, given the indefinite, but suspicious, circumstances of the death. 63 Imputation (h) requires the ordinary reasonable viewer to conclude that Mr Adeang acted in his official capacity to cover up his own role in his wife's death. It is difficult to see what this imputation asserts to distinguish it from the acts or conditions alleged in imputations (a)-(d). If the ordinary reasonable viewer understood the matter complained of to convey that Mr Adeang did any of the things asserted in one or more of the matters in imputations (a)-(d), then he would have acted corruptly as the justice minister. However, the matter complained of, while being capable of being understood as raising reasonable grounds for suspicion that Mr Adeang had a role in his wife's death does not go sufficiently further to support the availability of imputation (h). The matter complained of did not set out a basis on which an ordinary reasonable viewer could reasonably infer that it was conveying that Mr Adeang actually had a role in his wife's death, even allowing for a degree of loose thinking and its recounting of the circumstances. 64 In my opinion, the ABC is correct to say that the broad impression that the matter complained of was capable of conveying to the ordinary reasonable viewer fell short of any inference, far less an accusation, that Mr Adeang actually had a role in his wife's death. At most, as I have explained the matter complained of was capable of conveying that there were reasonable grounds to suspect that he did have a role, but that is as far as an ordinary reasonable viewer would understand the insinuation to go. As Mr Law said at the end of the broadcast, the cause of death may have been suicide 65 I am satisfied that the matter complained of could not reasonably be understood as conveying that Mr Adeang actually had a role in his wife's death, however assiduously it may have conveyed that he had acted suspiciously. For these reasons, I will not permit Mr Adeang to amend the statement of claim by adding imputation (h). The contextual imputations issue – the parties' submissions 66 The ABC argued that contextual imputation 1 deployed or drew the language of the matter complained of. It referred to the descriptions of Mr Adeang's power in Nauru in pars 1, 2 and 4. It contended that the expression "systematically violates the principles of democracy and the rule of law" is an inference capable of arising from the matter complained of in pars 1, 8 and 23. The ABC submitted that its 68 particulars of contextual truth provided a practical means of resolving the concepts in imputation 1 of the "principles of democracy" and "rule of law" and that these particulars bore a reasonable relationship to both imputation 1 and the matter complained of. The ABC argued that its pleaded particulars of contextual truth ensured that the issues for trial concerning imputation 1 would be sufficiently identified. It argued that the decisions in Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [34] for Hodgson JA with whom McColl JA and McClellan AJA agreed and Fairfax Media Publications v King [2015] NSWCA 172 at [42] per Emmett JA with whom McColl and Leeming JA agreed, were wrong, if and to the extent, that they held that particulars of contextual truth cannot contain matters that were not contained in the matter complained of. 67 Mr Adeang argued that contextual imputation 2 was imprecise and "hopelessly vague … in an apparent effort to shoehorn every bit of ostensibly discreditable information from the plaintiff's [sic] career into its justification defence". He submitted that imputation 2 was defective in form. He contended that many of the ABC's particulars did not bear any reasonable relationship to the matter complained of. He contended that both imputation 2 and the particulars lacked the precision of an indictment or any sufficient precision. Consideration – imputation 1 68 I am of opinion that imputation 1 is defective in form. The natural and ordinary meaning of "systematically" is of a manner involving "a system or organised plan; regularly and methodically", "with regularity indicating (esp. malicious or reprehensible) design or habit" (Oxford English Dictionary online). If the only bases of imputation 1 are the circumstances pleaded in imputations (a) to (d), then imputation 1 does not differ in substance from those on which Mr Adeang relies. Imputation 1 must convey a meaning carried by the matter complained of "in addition to the defamatory imputations" complained of by the plaintiff (s 26(a) of the 2005 Act). 69 Aside from the incidents the subject of imputations (a) to (d), it is difficult to see from the matter complained of that Mr Adeang had a method, plan or system. Its thrust was that Mr Adeang had acted in a way that raised serious concerns about the rule of law in Nauru because he had acted to prevent his wife's death being investigated, including by removing the Commissioner of Police and resident coroner, as well as blocking the Chief Justice from returning. The matter complained of is capable of being understood to refer to a relationship between some of those matters and Mr Adeang's decision to deport Mr Henshaw and to connect the latter to Mrs Adeang by including Mr Henshaw's description of her and her visit to his bar. It also included Mr Eames' observation that Mr Henshaw's deportation "was a case of lining up enemies" (par 21) and Mr Bliim's observation that, towards the end of their working relationship, it was obvious that Mr Adeang "didn't want anyone on the island to hold he or others accountable. And the rule of law and things like that …" (par 8). 70 The matter complained of did not discuss, in terms, the principles of democracy or draw some distinction between these and the rule of law. Nor did it describe, apart from asserting that Mr Adeang was seeking to prevent his wife's death being investigated, what "his own agenda" might be. 71 Imputation 1 bundled together, in a vague, general and confused way concepts of systematic actions that violated two distinct sets of principles (democracy and rule of law) that Mr Adeang was accused of perpetrating in order to pursue an unelaborated "agenda". I am of opinion that imputation 1 is so vague and imprecise that it should be struck out as calculated to cause prejudice. It is embarrassing. It asserts more than one act or condition and jumbles together a confusing melange of concepts – system, principles of both democracy and rule of law, and Mr Adeang's "own agenda". 72 As explained above, an imputation must be pleaded with a sufficient degree of specificity that is related to the nature and content of the matter complained of: Drummoyne 21 NSWLR at 137E-F; cf also King [2015] NSWCA 172 at [41]-[42]. It must specify an act or condition with appropriate clarity or precision. Imputation 1 does none of this. It is unacceptably vague and imprecise. The matter complained of referred to a number of specific instances of conduct attributed to Mr Adeang that might be capable of being formulated into an imputation that distilled a general act or condition attributable to him. But imputation 1 is not such an example. It must be struck out. Consideration – imputation 2 73 Imputation 2 is in a different category. It pleads, as a general act or condition attributed to Mr Adeang, what was the sting attributed in imputation (a) to a specific act or condition. Imputation (a) however is limited to one instance of Mr Adeang's obstruction of the administration of justice in Nauru that relates solely to the proper investigation of his wife's death. 74 In my opinion, the matter complained of is capable of supporting the general imputation on which the ABC relies. That is because it also deals with Mr Adeang's alleged interference with enforcement of Mr Law's injunction relating to the deportation of Mr Henshaw and the assertion that Mr Adeang then ordered Mr Law's deportation. Thus, the ordinary reasonable viewer would be able to understand that the matter complained of instanced more than one case in which it was saying that Mr Adeang obstructed the administration of justice in Nauru. 75 In my opinion, the general nature of imputation 2 was capable of being conveyed by the matter complained of and is appropriately specific: Drummoyne 21 NSWLR at 137E-F; see too Crosby [2013] FCA 1343 at [25]-[28] where I discussed the principles relevant to the defence of contextual truth under s 26 and its analogues that McColl JA, with whom Macfarlan JA and Sackville AJA agreed, applied in Zeccola [2015] NSWCA 329 at [70]-[72], [114]. 76 Imputation 2 is different in kind from imputation (a). Accordingly, the ABC is entitled to rely not only on instances of Mr Adeang's alleged obstruction of justice that are specifically referred to in the matter complained of, but to range more widely. That is because the matter complained of was capable of conveying the more general imputation 2 than the specific one in imputation (a) and that general imputation was capable of being understood as instanced by, but not confined to, Mr Adeang's conduct to which the matter complained of referred: Crosby [2013] FCA 1343 at [24]-[25], [37]. 77 However, this does not give the ABC a general licence to rely on all of the sweeping range of matters in its particulars of justification pleaded in its defence in support of imputations 1 and 2. There, the ABC relied on allegations that Mr Adeang: had directed Nauru media in July 2013 not to broadcast matter critical of him (par (aa)); caused amendments to laws to be passed by the Nauruan Parliament (pars (dd), (aaa)-(ccc), (iii)-(lll)); caused the fee for a journalist's visa to be increased (par (ee)); caused the Nauruan Parliament to suspend members who had criticised his conduct (pars (ddd)-(ggg). 78 The ABC also particularised, in support of imputations 1 and 2, a resolution of the New Zealand Government (scil: Parliament) in July 2015 expressing its concern about the Nauruan Government's interference with, among other matters, the judiciary (par mmm). Additionally, in support of imputation 1, the ABC particularised that Mr Adeang suspended a person's welfare payments (par (nnn) and it also relied on the New Zealand Government's decision in September 2015 to suspend aid to Nauru because of issues concerning justice and human rights there (par (ooo)). 79 In my opinion, those particulars are incapable of supporting imputation 2. They have no apparent relevance to establishing that Mr Adeang did anything to obstruct the administration of justice. A Parliament may pass a law that affects existing court proceedings, or impacts on the conduct or institution of current or future proceedings. Such legislation is either constitutionally valid, in which case it cannot be characterised as interfering with the administration of justice, or invalid, in which case it is ineffective to create such an interference. In either case, even if Mr Adeang promoted, or voted in Parliament for, the legislation, that could not have interfered with the administration of justice. If a new law were validly enacted, justice had to be administered under that and all other valid laws. The new law no doubt may be said to have affected, as all laws do, the administration of justice, but it could not interfere with its administration. 80 Moreover, the matter complained of was capable of conveying the impression that Mr Adeang acted outside the law, hence imputations (a)-(d) and 2 that each party has pleaded to impute that he interfered in carrying the law into effect. That alleged conduct is qualitatively different to proposing or procuring new legislation or amendments to existing legislation to be enacted by a Parliament, or interfering with broadcasts, changing visa fees, participating in proceedings in a Parliament to suspend, in accordance with its processes, members or dealing with a person's welfare payments. 81 For these reasons, particulars of contextual truth (a)-(q), (aa), (dd) (ee) (aaa)-(ccc), (ddd)-(ggg) and (iii)-(ooo) must be struck out. Since imputation 1 is defective and must be struck out, particulars (a)-(q), (nnn) and (ooo) have no current relevance. Conclusion 82 I will grant leave to Mr Adeang to amend the amended statement of claim to add imputations (e) and (f). I reject his application to add imputation (h). I will strike out of the ABC's defence imputation 1 and its particulars of justification (a)-(q), (aa), (dd) (ee) (aaa)-(ccc), (ddd)-(ggg) and (iii)-(ooo). Although each party had a measure of success, on balance I am of opinion that Mr Adeang is entitled to an order that the ABC pay two thirds of the costs of his interlocutory application. I certify that the preceding eighty-two (82) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 10 October 2016 ANNEXURE TRANSCRIPT – FIRST MATTER COMPLAINED OF LATELINE: 23 FEBRUARY 2016 Duration: 11.44 minutes Title: The mysterious death of the wife of Nauru's Justice Minister Par Time Vision Audio 1. 0.00 [Medium Close Up (MCU) Emma Alberici in Studio] EMMA ALBERICI: The name David Adeang might not be familiar to you. But as justice minister of Nauru, he's one of the most powerful people on the island nation that plays host to an Australian Immigration detention centre. He's the man who controls the visa system for asylum seekers and the one deciding who is welcome on Nauru. Almost three years ago, David Adeang's wife Madelyn was found burnt to death in their garden. The circumstances surrounding her shocking end remain unexplained and the apparent absence of a thorough investigation has raised serious concerns about Nauru's commitment to the rule of law. Ginny Stein reports. 2. 0.39 [Nauru Traffic and Local Children; David Adeang] GINNY STEIN: Nauru: population 10,000. David Adeang is this tiny island nation's justice and border control minister. He's also finance minister. He holds the reins of power. 3. 1.04 MCU Steven Bliim STEVEN BLIIM, FORMER SOLICITOR-GENERAL OF NAURU: I'd certainly describe him as the person who appeared to be the one calling the shots in terms of most major government policy lines. Probably yes, in consultation with the president. But he certainly has seemed to have a significant say in what happened, as opposed to the role of other cabinet ministers. 4. 1.25 MCU Geoffrey Eames GEOFFREY EAMES, FORMER CHIEF JUSTICE OF NAURU: He's a highly intelligent man. He's an accountant by background. A very confident man, generally regarded throughout Nauru on all sides as being the power behind the throne. 5. 1.39 Ginny Stein walking down a corridor with Steven Bliim GINNY STEIN: Stephen Bliim arrived in Nauru in 2012. He began working closely with David Adeang when he became justice minister, following the June 2013 election. 6. 1.52 Ginny Stein walking down a corridor with Stephen Bliim STEVEN BLIIM: Oh, the Minister didn't like being told "no". 7. 1.54 Ginny Stein walking down a corridor with Stephen Bliim GINNY STEIN: As Nauru's solicitor-general, he was the justice minister's legal adviser. 8. 1.59 Ginny Stein walking down a corridor with Stephen Bliim STEVEN BLIIM: Working with David Adeang was initially no different to working with someone else. But certainly towards the end of the period that I was there, it became obvious that he didn't want anyone on the island to hold he or others accountable. And rule of law and things like that: if I hadn't resigned, I think I probably would have been one of the next to go. 9. 2.20 [Outside shot of Nauru Police Force, Central Police Station] GINNY STEIN: In 2013, Nauru's most senior legal and police officers and were all Australians. But they fell out of favour of the new government in quick succession. 10. 2.32 [Nauru Police video featuring Mr Britten] RICHARD BRITTEN, DIRECTOR OF POLICE, NAURU, 2011-2013: The law will deal with this for now. 11. 2.34 [Footage of damaged detention centre buildings] GINNY STEIN: The first to go was the island's top cop, Richard Britten. He was stood down one hour before rioting began in the island's detention centre. 12. 2.45 Graphic displaying statement of Richard Britten STATEMENT FROM RICHARD BRITTEN (voiceover): My official position in Nauru was director of police, which was also known as commissioner of police. I reported directly to the president of Nauru, who also held the position of minister for police. I held this position from the 18th of July, 2011, until 1900 hours on the 19th of July, 2013. I was suspended as director of police one hour before the processing centre riots. 13. 3.08 Peter Law in Court Room GINNY STEIN: Peter Law served as Nauru's resident magistrate and coroner from 2012 to 2014. He was the next to go. 14. 3.20 MCU with Peter Law PETER LAW, FORMER RESIDENT MAGISTRATE OF NAURU: When I issued an interim injunction preventing deportation, I myself became subject to a deportation order. 15. 3.29 Geoffrey Eames in Court Room GINNY STEIN: Geoffrey Eames, who served for three years as Nauru's chief justice, was next. He was blocked trying to return to Nauru. 16. 3.40 MCU Geoffrey Eames GEOFFREY EAMES: I was proposing to fly to Nauru and the government simply told the airline company not to give me a ticket, as my visa had been cancelled. 17. 3.52 MCU Geoffrey Eames GINNY STEIN: Who cancelled it? 18. 3.53 MCU Geoffrey Eames GEOFFREY EAMES: Oh, it was David Adeang. 19. 3.56 [Rod Henshaw placing flowers on grave] GINNY STEIN: It was the justice minister's unilateral decision to deport this man that sparked a rout. Rod Henshaw and his wife Anne had moved to Nauru in 2009 to build the Nauruan national broadcaster. One month after Anne's sudden death in November 2013, he was ordered deported. 20. 4.20 MCU Rod Henshaw ROD HENSHAW, FORMER MEDIA ADVISER TO NAURU GOVERNMENT: Going through sheer hell at that time. On the 27th of November in 2013 my wife died suddenly. And it was very, very sudden. It was all over in six hours: a massive brain haemorrhage. 21. 4.32 MCU Geoffrey Eames GEOFFREY EAMES: Well, I think it was a case of lining up enemies. Henshaw had acted for the previous government as their media adviser and he'd made enemies with the new government. 22. 4.46 Two Shot of Ginny Stein and Peter Law GINNY STEIN: Peter Law came to David Adeang's attention when he granted an interim injunction against Rod Henshaw's deportation. 23. 4.55 MCU Peter Law PETER LAW: Well, the government has a lot of power. What's disturbing to me is that some of that power has been used in a very arbitrary way: so that there were residents in Nauru, foreign residents who hadn't broken the law to my knowledge, who hadn't breached any visa, but they were issued with deportation orders. 24. 5.15 [Outside shot of Nauru Police Force, Central Police Station; Photograph of Madelyn Adeang] GINNY STEIN: Then Peter Law called for police to investigate further the shocking death of Madelyn Adeang, the wife of justice minister David Adeang. Madelyn Adeang died almost three years ago. 25. 5.30 MCU Rod Henshaw ROD HENSHAW: She was a charming lady. Just a few weeks - or shortly before her death, she came into our bar with a few of her friends. She was celebrating her birthday; didn't stay very long. But we sat down and had a very amiable chat. And, you know, we bought a few drinks for her birthday and this sort of thing. And she was just a very charming woman. 26. 5.51 Photograph of Madelyn Adeang GINNY STEIN: Photograph of Richard Britten There is little known for certain about how Madelyn Adeang died: just the way she was found - burnt to death in the garden of her home. Richard Britten was not on Nauru when she died but heard of her death on his return. 27. 6.09 Graphic displaying statement of Richard Britten STATEMENT FROM RICHARD BRITTEN (voiceover): During my handover briefing with the acting NPF commissioner, I was not informed of Madelyn's death. I inquired if a death had occurred in my absence and was only then informed in very brief detail. I then ordered a full investigation be conducted. 28. 6.22 MCU Peter Law PETER LAW: There was about three or four paragraphs of a description about what they say had happened. And what they say had happened was dependent on what they had been told by people that they'd spoken to. 29. 6.37 MCU Peter Law GINNY STEIN: Which was the justice minister? 30. 6.38 MCU Peter Law PETER LAW: That was the minister for justice, yes. 31. 6.40 MCU Peter Law GINNY STEIN: So what did it say? 32. 6.42 MCU Peter Law PETER LAW: [Nauru Traffic] Well, simply that there had been an accident and that the late Mrs Adeang had left the house and was carrying a bucket of petrol to carry out a burn-off; and that, somehow, an accident occurred whereby that bucket of petrol became alight and she was burnt to death. There must have been neighbours and other people, perhaps, around who may or may not have witnessed; that were near to the scene of Madelyn Adeang's death. 33. 7.19 [Outside shot of the Republic of Nauru's Court House] GINNY STEIN: Under Nauru law, the Inquest Act lays out the process for any coronial investigation in the event someone dies as a result of fire or suicide. 34. 7.29 MCU Geoffrey Eames GEOFFREY EAMES: [Geoffrey Eames reads from act] "Inquiring into a death or disappearance where a person's been killed by another, or by an animal or machinery or during the course of a fire or by accident." Well, plainly that falls into that provision and hence there's an obligation. 35. 7.44 Photograph of David Adeang GINNY STEIN: While it's not suggested that David Adeang was involved in the death of his wife, the Nauru police investigation was proving difficult. 36. 7.53 Graphic displaying statement of Richard Britten STATEMENT FROM RICHARD BRITTEN (voiceover): Most people were refusing to talk to police. It is highly likely that David Adeang's standing in the community influenced some people. 37. 8.02 [Nauru Police video featuring Mr Britten] GINNY STEIN: Former director of Nauru police Richard Britten has recently retired from the Australian Federal Police. He's not spoken to the media since leaving the island. He agreed to answer Lateline's questions, but only in written form. 38. 8.17 Graphic displaying statement of Richard Britten STATEMENT FROM RICHARD BRITTEN (voiceover): This matter was never properly investigated whilst I was on the island. A coronial inquest should have been held. Whether one has since been held, I do not know. Some statements were taken from neighbours, who reported hearing a heated argument between a male and a female just prior to Madelyn's death. 39. 8.34 [Steven Bliim and Ginny Stein looking at a laptop] GINNY STEIN: Steven Bliim was David Adeang's legal adviser. He was not on the island at the time of Madelyn Adeang's death, but knows what his advice would have been. 40. 8.45 MCU Steven Bliim STEVEN BLIIM: I don't know whether he was in the vicinity or present at the time or... 41. 8.50 MCU Steven Bliim GINNY STEIN: No one knows. 42. 8.51 MCU Steven Bliim STEVEN BLIIM: ...or what his position was. 43. 8.51 MCU Steven Bliim GINNY STEIN: No one knows. 44. 8.52 MCU Steven Bliim STEVEN BLIIM: But the fact that it was his house: one would expect that - or anyone in that position, that one would expect they would be questioned as to where they were: whether they were present or not present or, if so, where they were. That would be part of a normal police investigation. 45. 9.08 [Ginny Stein attempting to contact David Adeang by telephone. The connection is broken] GINNY STEIN: Finding out answers to questions raised on Nauru is not without its challenges. 46. 9.15 [Nauru Street Traffic] GINNY STEIN: [Ginny Stein outside consular residence in Brisbane] But getting through to anyone on any phone in Nauru is virtually impossible. Unable to obtain a media visa to travel to Nauru, or get through on the phone, I flew to Brisbane after hearing that David Adeang was visiting. 47. 9.32 [Ginny Stein tries residential intercom without response] GINNY STEIN: For two weeks we've been trying to get hold of David Adeang. We've got a number of questions we'd like to ask him. We've now been told that he's here in Australia in Brisbane in the northern suburbs. He's moved into this house that's been acquired or rented by the Nauruan government. 48. 9.49 [Ginny Stein writing and attaching a note to the gate of the consular residence] GINNY STEIN: With no one at home at the new consular residence, my only recourse was to leave a note. The following day Lateline received a response to a list of questions which David Adeang refused to answer, calling them "outrageous and deeply offensive". 49. 10.39 Graphic displaying statement of David Adeang STATEMENT FROM DAVID ADEANG, MINISTER FOR JUSTICE AND FINANCE, REPUBLIC OF NAURU (voiceover): While I will not address these claims, I do want it on record for clarification purposes that Nauru rarely if ever has coronial inquests. 50. 10.46 [Peter Law walking at Coogee Beach] GINNY STEIN: Peter Law agrees with the Minister that inquests are rare. He says they're called when police investigations fail to indicate the cause of death. He says the justice minister has missed the point. 51. 11.01 MCU Peter Law PETER LAW: Photograph of Madelyn Adeang Well, it's an irrelevant statement, really, because the fact is that the magistrate has responsibilities under the act. If the police report is inadequate - doesn't draw proper conclusions or has lacked evidence - then the role of the magistrate, of course, is to follow through with further inquiries or possibly conduct an inquest. It's very disappointing that it would happen to anyone: that there wouldn't be a proper explanation about someone's death. It might very well be the circumstances that the late Mrs Adeang committed suicide: that could be. But there needs - or should have been - some proper investigation by the police.