New South Wales District Court CITATION: Ann-Marie Clarke & Anor v Melbourne University Publishing Ltd trading as Melbourne University Press [2007] NSWDC 189 HEARING DATE(S): 14/09/07 JUDGMENT DATE: 21 September 2007 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Note imputations 2(c) and 2(f) have been withdrawn; (2) Imputations 2(a), 2(b), 2(d) and 2(e) are to go to the jury; (3) Parties have leave to bring in Short Minutes of Order for a fresh timetable for the conduct of these proceedings; (4) Defendant pay two-thirds of the plaintiff's costs. CATCHWORDS: Tort - defamation - imputations - capacity - bane and antidote - role of context LEGISLATION CITED: Defamation Act 2005 (NSW) Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 John Fairfax Publications Pty Ltd v ACP Publishing Pty Ltd [2005] ACTCA 12 CASES CITED: John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 Nevill v Fine Arts & General Insurance Co Ltd [1897] AC 68 Smyth v MacKinnon [1897] 24 R 1086 First Plaintiff: Ann-Marie Clarke PARTIES: Second Plaintiff: Caroline Clarke Defendant: Melbourne University Publishing Ltd t/a Melbourne University Press FILE NUMBER(S): 2788 of 2007 COUNSEL: Plaintiffs: C A Evatt Defendant: L McCallum SC SOLICITORS: Plaintiffs: Goddard & Co Defendant: Frankel Lawyers Judgment 1. The plaintiffs by way of statement of claim seek damages for defamation for the publication by the defendant of a book "The Education of a Young Liberal" in or about July 2006. 2. The matter complained of was published after 1 January 2006. The provisions of the Defamation Act 2005 (NSW) ("the 2005 Act") apply. This means that I must have regard to the fact that the imputations are particulars of the cause of action rather than the cause of action. Conformably with the practice in the Supreme Court of New South Wales, I will therefore apply the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 ("the General Steel test") and strike out imputations with extreme caution. 3. The text of the matter complained of is set out as a Schedule to this judgment. It is a good example of a publication which is very much on the borderline when it comes to determining the issue of capacity of imputations. 4. The imputations pleaded for each of the plaintiffs is as follows: 2(a) The first plaintiff is a prostitute. 2(b) The first plaintiff is of such low moral character that her father solicits for her. 2(c) The first plaintiff earns money from working as a prostitute. 2(d) The second plaintiff is a prostitute. 2(e) The second plaintiff is of such low moral character that her father solicits for her. 2(f) The second plaintiff earns money from working as a prostitute. 5. It is necessary when considering these imputations to have regard to the context of the matter complained of as well as the actual words used: Nevill v Fine Arts & General Insurance Co Ltd [1897] AC 68 at 72 per Lord Halbury LC. This is because there is a very close temporal proximity between the matter complained of and the book in which it appears, at pages 199-200. The reader would not read the matter complained of in isolation, but as part of the book in which it appears. In this sense, the publication is not unlike the matter complained of in Smyth v MacKinnon [1897] 24 R 1086, where a letter was required to be read in its context in the whole of the correspondence of which it formed a part. 6. The matter complained of is entitled "The Education of a Young Liberal" but the subtitle "From private school boy to hardened political hack" makes it clear that this is a satirical tell-all book about the adventures of a wide-eyed young innocent discovering, and eventually being disillusioned by, the corrosive impact of party machine politics. This impression is confirmed by an endorsement on the dustcover from Mark Latham asserting that, horrendous though Young Liberals may be, Young Labor is worse. 7. The dustcover shows a picture of a young boy inappropriately dressed in an adult's suit and tie. The book starts with a story about the author of the publication being unwilling to hit another student in his class, even when invited to do so by the teacher, because he is a "nice boy". The subsequent chapters are about the adventures of the author as he travels through the landscape of party machine skulduggery, rather like a modern-day Candide. The author, in his innocence and naivety, initially is impressed by the people he meets but invariably ends up expressing his surprise or dismay at the discovery of their true nature. 8. It is against the background of this context that David Clarke, the father of the plaintiffs, is introduced to the author in a chapter entitled "Meeting with Nazis". The purpose of the author's "meeting with Nazis" was to obtain Right Wing support for his presidency of the Young Liberal Movement, from which position he hoped to receive pre-selection for the NSW Parliament. (He had lost the support of the Moderates, which was why he was now having discussions about what was on offer from the Right Wing). 9. During the meeting the parties attempt to make a deal. Each side puts a number of bargaining chips on the table. Mr Clarke's companion, Mr Nick Campbell, is described as "spruiking enthusiastically like a used-car salesman" (page 196). The problem was that for the author and his cohort (a Mr Kyle Kutasi) to leave their faction and join the Right Wing, they had to receive certain undertakings and assurances. The author describes himself as "pitching" for a deal and that he hoped that one stage that he had "made a sale" (page 198). However, what Mr Clarke and Mr Campbell put on offer falls short of what they wanted. All that Mr Clarke and Mr Campbell offer is that the author and Mr Kutasi join the Right Wing, without giving them the necessary assurances for the endorsement of the author as the candidate for the Young Liberal presidency. 10. The meeting concludes on the basis that the deal could not be resolved at that time. It is at this stage of the conversation that Mr Clarke began to talk "warmly about his daughters, both of whom were in the Young Liberals" (page 199). This is put on the basis that Mr Clarke appeared to have discovered that he could seem less like a fanatic and more human by talking warmly about his daughters. 11. On its face, this imputes nothing worse than a political hack trying to make himself human by emphasising family values, and certainly does not impute anything about either of his daughters. Mr Clarke then goes on to reminisce about his encounters with previous Young Liberal leaders, including one who is described on page 67 as delighting in exposing the embarrassing past of Right Wingers, adding that he has heard that the author is "not a bad performer" at Council meetings either. On this note, they part. 12. As the author and Mr Kutasi leave, they review the offer put to them. The spin placed on the reference by Mr Clarke to his daughters is expressed by Mr Kutasi to be: " 'And did you get a load of Clarke trying to pimp off his daughters?' he enthused, then broke into a football hooligan chant, 'Oi, oi, oi!' " (page 200). 13. The Encarta World English Dictionary defines "pimping" as "to work as a pimp, finding customers for prostitutes". The Macquarie Dictionary defines the verb "to pimp" as "to procure; pander" and "to inform; tell tales". 14. The defendant submits that the only sense that can be conveyed of the word "pimp" in the publication is that Mr Clarke is engaged in identifying himself as the father of the plaintiffs and is hoping to be thought of favourably. If anything, it conveys that the plaintiffs must be very likeable to be able to compensate for the apparent fanaticism of their father. It is submitted that the word "pimp" is used in a context of making the plaintiff's father seem less fanatic and more human and it is a slang or colloquial usage in common language in Australia derived from an American slang term for being unique, "cool" or socially desirable. 15. At http://en.wikipedia.org/wiki/pimp#other_uses, the extract from Wikipedia provided to me by the defendant notes that "pimp" can also be used as a verb, such as "You're pimped up!" or "Pimp my ride". This is a reference to customizing an automobile, which is made popular by a show Pimp My Ride on MTV. To describe a car as a "pimp" or someone as a "pimp daddy" means "popular" or "cool", originally in a derogatory way, because of the alleged fondness of pimps for wearing excessive jewellery, flashy clothes and travelling in brightly coloured vehicles with animal-print upholstery. (Upon checking the website, I note that the content of this webpage have since been updated, but the information is similar.) Eventually, as is often the way with derogatory terms, its meaning has been reclaimed to become something that is cool or socially desirable, in much the same way that the meaning of the word "ghetto" has changed. 16. Thus, in addition to the motive given by the author for Mr Clarke talking warmly about his two daughters, we have Mr Kutasi's conflicting view of the conduct, using the word "pimping", which he goes on to emphasis by the phrase "Oi, oi, oi!". This phrase is defined in Wikipedia as part of a chant "Aussie, Aussie, Aussie, Oi, Oi, Oi" which it is claimed was first heard at the Sydney 2000 Olympics. Wikipedia quotes Professor Stephen Alomes of Deakin University as saying "the chant represents 'enthusiasm for the tribe' and a 'celebration of 'us', but at the extreme may act as a symbol of xenophobia". 17. The author of the matter complained of makes it clear in numerous references throughout his book that people who appear fairly normal at his first meeting with them turn out to be prepared to do anything, no matter how awful, to get ahead. A number of the meetings start with the author regarding someone he meets as "charming" (page 60) or "very personable" (page 62), only to find that they are comparable to Hannibal Lecter (page 62) or otherwise are "horrendous" people (to quote from the dustcover) who will do anything to get what they want. The book's theme is to expose the dark underside of these apparently normal people. 18. Having noted the impact of the context and the meanings of the slang words, I now turn to a consideration of the test to apply to the striking out of imputations under the 2005 Act. 19. In exercising the discretion to strike out imputations, the court must approach its task with great caution. If it is possible that reasonable minds may differ on whether or not the matter complained of is capable of conveying a defamatory meaning, this is a strong reason for refusing the application: Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186. In this regard, the words are not to be construed in a legal sense because the ordinary reasonable reader reads between the lines in the light of his general knowledge and experience. A wide degree of latitude will be attributed to the capacity of the ordinary reasonable member of society to draw adverse imputations where the language employed has been imprecise, ambiguous or loose, as is the case here. In particular the nature of the publication is relevant because readers of a non-sensational newspaper article may apply a greater degree of analytical focus than the reader of a sensational exposé such as this publication: John Fairfax Publications Pty Ltd v ACP Publishing Pty Ltd [2005] ACTCA 12. 20. Ms McCallum's submissions were persuasive and ably made. However, in the final analysis, given the context of the publication, the use of an ambiguous slang language and the miasma of innuendo that surrounds not only the matter complained of but the whole of the publication, I am of the view that while this is a borderline case, it is quintessentially a jury question whether the imputations are conveyed in this self-contradictory publication. This is not a case where the antidote so outweighs the bane that the sting of the libel cannot be said to be conveyed: John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at [26] and [50]. The Court of Appeal has emphasised the need for caution in such circumstances, most recently in Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254. 21. In the course of the argument, Mr Evatt withdrew imputations (c) and (f), and it is not necessary for me to rule on them. 22. As to costs, the defendant has had a success of sorts in that during argument the plaintiff withdrew two of the six imputations. Accordingly, I direct that the defendant pay two-thirds of the plaintiff's costs of this application. Orders 1. Note imputations 2(c) and 2(f) have been withdrawn. 2. Imputations 2(a), 2(b), 2(d) and 2(e) are to go to the jury. 3. Parties have leave to bring in Short Minutes of Order for a fresh timetable for the conduct of these proceedings. 4. Defendant pay two-thirds of the plaintiff's costs. Schedule The matter complained of MEETING WITH NAZIS The Right Wing leadership wanted it to be a CBD hotel at 9 p.m., which was fine with Kutasi and me. It had a steamy exotic atmosphere. Sitting amidst potted palm trees and white-coated waiters I felt it could easily have been somewhere like Brazil or Paraguay, perhaps one of the hotels that had played host to Nazi refugees after World War II. Heh, heh, heh… Nazis. Just like these guys. Which is not to say that they were, but I found it an amusing thought. I tried to think of a way of surreptitiously letting Kutasi know what I was thinking; failed, then decided I should really be listening to what Clarke and Campbell were saying. David Clarke and Nick Campbell – both men unknown to the public at this time – were the leaders of the Right Wing in NSW. This may sound unusual when the NSW division is home to such figures as Tony Abbott, Bill Heffernan and Bronwyn Bishop, but there it is. By now they were already twenty minutes into a spiel about how the Moderate faction was crumbling and a sea-change underway in the Party that would propel the Right Wing to lasting power. As spiels go, it sounded good without actually being convincing. It had evidently been brought to a state of near perfection through frequent use, but was rattled off for us in a perfunctory fashion like a prayer before supper. 'Benedicto Benedicat per Jesum Christam Dominum Nostrum… The Group's time has passed, tomorrow belongs to the Right Wing. Amen.' From what I could tell Campbell was the brains, but being only in his thirties had to make his influence felt through Clarke, who possessed the credibility. Campbell spent much of our meeting deferring to Clarke, and the rest spruiking enthusiastically like a used-car salesman. He was the Right Wing's all-purpose 'good bloke', the one they wheeled out on every occasion when there were cracks to be papered over or people to be glad-handed. I had not figured out by the end of our meeting what motivated him; whether he saw factional activism as a path to personal advancement, or if he was in genuine concurrence with the views of the man sitting next to him. I got the impression that you never found out what Nick Campbell was really thinking, no matter how much time you spent with him. What Clarke himself thought was no mystery. It couldn't be, given how volubly he broadcast his views. During my time in the Party I had received innumerable Clarke publications, all of which were basically the same: jackboot stomping about 'militant homosexuals', the 'aboriginal industry', 'professional ethnics', multiculturalism. Other articles of Clarke wisdom held that proposals for an Australian Bill of Rights were in some way communistic, and that the way ahead for the Liberal Party was to promulgate all its policies in accordance with the wishes of the Catholic church. Clarke was a true believer. He had been a Liberal Party member for almost forty years, and during that time had only ever bothered to stand for preselection once. For him the appeal of a parliamentary career paled beside that of dedicating every hour to the remaking of the Party in his own image. Fortunately, however, agreement with his conservative beliefs did not seem to be a sine qua non of the transaction we were discussing, and that meant I had a chance. 'Look, gentlemen,' I said, interrupting their carry-on, 'I agree with a lot of what you're saying about The Group. And Kyle and I do want to join the Right Wing. It's just that, well, it's hard. We both have ties to the Moderates; we have personal loyalties and relationships.' 'There are tough decisions ahead,' Campbell suggested. 'Yes. Ah, no. Not quite. Look, we,' – I glanced at Kyle – 'have already made our decision. We'll cut our ties to the Moderates, hard though that may be, and become full unqualified members of the Right, delivering you control of the Young Liberal Movement for the first time in history, if you support me for President of the movement at this year's AGM.' Neither Clarke nor Campbell said anything, but they didn't seem surprised. I kept pitching. 'That will break the twenty-year Moderate lock on the Young Liberals. As you say, there's a very good chance that you only need to win once for The Group to fall apart. I agreed with you that the only thing holding them together is self-interest and if you take power away from them, they'll collapse. You'll probably then control the Young Liberals ever after. But I have to be Young Liberal President. That is the bottom line.' Both men were nodding. Fantastic! Perhaps they would go for my proposal after all. 'All right,' said Clarke, after a moment's pause. 'What would the ticket look like? What would your ideal team be? Your…' he smiled, and decided to use a young person's expression, '… dream team?' Campbell nodded his interest. My heart soared as I launched into further explanation, thinking I'd made a sale. That I had not became clear gradually as our conversation progressed. Clarke and Campbell wouldn't actually commit to anything. They only wanted to talk about practicalities: how socialising us into the Right Wing would work, whether or not we wanted a job with one of the Right Wing MPs, the potential for building a proper Right Wing presence in the eastern suburbs. A much used strategy for winning over a person is getting them to focus on the practicalities of how to do something, rather than the threshold issue of whether or not they should do it in the first place. Clarke and Campbell now wielded this old tool of political persuasion skilfully. Out of the corner of my eye I could see that Kutasi was lapping it all up like an idiot. He had been rather gloomy about the prospect of doing a deal with the Right Wing; he and Clarke had had some furious arguments and confrontations over the years. But now he was nodding excitedly. This was worrisome. Clarke and Campbell had not agreed to anything, and a bit later when they stated their own bottom line, it did not inspire confidence. Yes, they would be delighted to accept us both into the Right Wing, it would be a very good fit. As for the presidency, they couldn't see a problem – I would make an excellent Right Wing President, whether now or at some point in the future. Sadly, however, neither of them had final say on the choice of Right Wing candidate (rubbish), so Kyle and I would have to talk to our Right Wing counterparts in the movement to see what they thought. 'Will you lobby them for me?' I asked. 'Of course,' came the reply, 'and maybe they'll agree. Yes, probably they will.' It was something that could not be resolved now. Instead Campbell suggested that we have a few more beers and talk about the big future that Kyle and I had in the Right Wing. I sighed internally, with a pretty strong premonition of what the Right Wing Young Liberals would say. The conversation that ensued wasn't too bad. Clarke appeared to have discovered at some point in his crusade for a more conservative Liberal Party that he could seem like less of a fanatic and more human by talking warmly about his daughters, both of whom were in the Young Liberals. He reminisced about his own time as a Young Liberal. Did I know that back in those days Chris Puplick had been a conservative? Well, he had. Campbell then got into deep nostalgia mode himself and seemed to get a strange masochistic buzz out of recalling how Falinski used to rough him up at Young Liberal Council. 'And I hear that you're not a bad performer at Council either,' he said to me. I shrugged modestly. 'You'll both be great assets to the Right Wing.' On the drive home Kyle was full of talk about how the meeting had gone so well, so much better than he'd expected. 'And did you get a load of Clarke trying to pimp off his daughters?' he enthused, then broke into a football hooligan chant, 'Oi, oi, oi!' 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