New South Wales Supreme Court CITATION : McGuiness v J. T. Publishing Australia Pty Limited` [1999] NSWSC 471 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20004 of 1999 HEARING DATE(S) : 14 May 1999 JUDGMENT DATE : 21 May 1999 GRAHAM ALAN McGUINESS (Plaintiff) PARTIES : v J. T. PUBLISHING AUSTRALIA PTY LIMITED ACN 070 230 625 (Defendant) JUDGMENT OF : Levine J J C Gibson (Plaintiff) COUNSEL : P Gray (Defendant) Walter Madden Jenkins (Plaintiff) SOLICITORS : Clayton Utz (Defendant) CATCHWORDS : Imputations - capacity - form - difference in substance - parody - matter for jury DECISION : See paragraph 12 DLJ: 1 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20004 of 1999 JUSTICE DAVID LEVINE FRIDAY 21 MAY 1999 GRAHAM ALAN McGUINESS (Plaintiff) v J. T. PUBLISHING AUSTRALIA PTY LIMITED ACN 070 230 625 (Defendant) JUDGMENT (Imputations - capacity - form - difference in substance - parody - matter for jury) 1 The plaintiff, at all material times a Senior Constable in the New South Wales Police Service, has instituted proceedings against the defendant as publisher of "Australian Hustler". 2 The matter upon which the plaintiff sues is appended to the Statement of Claim as Annexure 'A'. Appended to this judgment are the three pages of "context" including the particular segment of which the plaintiff complains bearing the headline "COP THIS". 3 The plaintiff contends that the publication sued upon conveys of him the following imputations arising from the natural and ordinary meaning: "7(a) The plaintiff was a hypocrite, in that he falsely claimed to be distressed by his role in a fatal police wounding when in fact he had enjoyed killing a man. (b) The plaintiff was a danger to the community in that he was looking forward to his next opportunity to kill someone. (c) The plaintiff was a sadistic killer". 4 Paragraph 8 of the Statement of Claim repeats the imputations and pleads them as true innuendos. The particularisation in accordance with SCR Pt 67 r 12(c) is acknowledged to be deficient and will be clarified upon the filing of any Amended Statement of Claim in respect of which leave might be granted (the word "Ordinary" should be omitted from any such pleading). 5 For the defendant it was argued and, in my view, appropriately so, that this is a case in which the "context" is of much importance. One way or the other, of course, the whole of the publication will be placed before the jury. Indeed, in this case the context is critical to the question of the availability of the causes of action (A v IPEC Australia Limited (1973) VR 39 at 44-5; Ron Hodgson (Trading) Pty Limited v Belvedere Motors (Hurstville) Pty Limited (1971) 1 NSWLR 472 at 477 and 480; Gordon v Amalgamated Television Services Pty Limited (1980) 2 NSWLR 410; further as to "context" see Charlestown & Anor v News Group Newspapers Limited & Anor (1995) 2 AC 65, but see also Chakravarti v Advertiser Newspapers Limited (1998) 72 ALJR 1085 per Kirby J at 1115). 6 The fundamental position taken for the defendant is irrespective of whether the imputations are pleaded as natural and ordinary meanings or as true innuendos, the matter complained of when read in context, is simply incapable of giving rise to any such meanings. The word "parody" is defined in the Macquarie Dictionary relevantly as relied upon by Mr Gray as a "burlesque imitation … (of a musical composition); a poor imitation, a travesty'; to imitate … in such a way as to ridicule". Bearing in mind, it is submitted, that the imputations pleaded do not point to "ridicule" but rather to "serious" attributes in the plaintiff himself, there is here what is described by counsel, a "preposterous disparity between the form and style on the one hand and the subject matter on the other", the latter being encapsulated in the thought "bubble" of the plaintiff. Indeed, it is so "outrageous" that no ordinary reasonable reader would suppose it represents the real thought of the plaintiff. This is the more so when the context containing particular piece is considered, namely the four pages of what are described as "ludicrous thought processes". 7 It has been the experience of the Court that it is difficult not only to identify but certainly to plead cases of ridicule or to plead those cases that reflect the famous dictum "if a man in jest conveys a serious imputation he jests in peril" and "the principle is clear that a person shall not be allowed to murder another's reputation in jest" (Donoghue v Hayes (1831) IR Ex Ch 265 at 266; Scali v John Fairfax Group Pty Limited (Levine J, unreported, 15 April & 15 July 1993); Moham-Wild v John Fairfax Publications Pty Limited (Levine J, unreported, 8 August 1997); Darbyshir v Daily Examiner Pty Limited (Levine J, unreported, 29 August 1997)). 8 Ms Gibson for the plaintiff in answer to the general approach adopted by Mr Gray took up the notion of "parody" and made what I consider to be the well put submission that the whole point in relation to the publication of the plaintiff or indeed, any of the others in the "context", is that the people are in fact what they pretend not to be. The snide insinuation, as-it-were, is that it is a joke to suggest that the person would not enjoy emptying his service revolver into another, but "really" he would. I think the balance between the competing submissions is such that, upon the curing of the defects in the imputations, the matter should go to the jury. It is close to a borderline case as quite many of these are, but I am not persuaded that the matter complained of is incapable of conveying any defamatory and disparaging sting of the plaintiff. Certainly I appreciate the position of the defendant that it could be argued that the publication is "cruel" or "insensitive", but it does not necessarily follow that it is not defamatory. 9 In relation to imputation 7(a) this is incapable of being conveyed as a natural and ordinary meaning. There is absolutely no suggestion in the matter complained of itself that the plaintiff had in fact shot someone in the course of duty and had been deeply troubled by it (to put it shortly). During the course of submissions reference was made to an imputation possibly in the form (though it will be a matter for the pleader), "that the plaintiff was a hypocrite in that he falsely asserts sensitivity to killing someone when in fact he would enjoy emptying his magazine into a person". 10 A supplementary submission advanced for the defendant is that there is no difference in substance between the imputations pleaded in 7(b) and 7(c) and 8(b) and 8(c). In my view, that clearly is right: to look forward to an opportunity to kill someone, on any reasonable basis, must reflect that component of pleasure that is incorporated in the notion of being a "sadistic killer". 11 I would rank this matter with Darbyshir and Moham-Wild as an extraordinary case. I would consider it, on the assumption that the imputations and particulars are tidied up in the Amended Statement of Claim, to be a borderline case but one nonetheless eminently suitable for the prompt determination by a jury. 12 The formal orders, made in respect of the Statement of Claim filed on 8 January 1999, are: (a) Imputation 7(a) is incapable of arising as a natural and ordinary meaning and will not go to the jury. (b) Imputation 7(b) and (c) are struck out as not differing in substance. (c) Imputation 8(a) will go to the jury only as a true innuendo. (d) Imputation 8(b) and (c) are struck out as not differing in substance. (e) Costs reserved to next Directions Hearing. (f) The plaintiff has leave to file an Amended Statement of Claim within 14 days. (g) The Defence is to be filed within 14 days thereafter. (h) At the expiry of 28 days liberty to restore to the Defamation List on 7 days notice. (Annexures not attached: see Australian Hustler Magazine November 1997: Vol 2 No. 11 at p 7) *********** Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.