New South Wales Supreme Court CITATION : Bishop v State of New South Wales [2000] NSWSC 842 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20992/97 HEARING DATE(S) : 18 February 2000 JUDGMENT DATE : 29 August 2000 PARTIES : Noel Bishop - Plaintiff State of New South Wales - Defendant JUDGMENT OF : Simpson J at 1 COUNSEL : Mr C Evatt - Plaintiff Mr M Lynch - Defendant SOLICITORS : Mr Philip J Beazley - Plaintiff I V Knight - Defendant CATCHWORDS : Defamation - theatrical performance - description of performance as the matter complained of - content of matter complainted of . CASES CITED : Bishop v State of New South Wales unreported 12 March 1998 (Levine J) DECISION : Imputations 10(f) and 10A(f) struck out. Plaintiff to pay the defendant's costs of the proceeding. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List SIMPSON J 29 August 2000 20992/97 Noel BISHOP v STATE OF NEW SOUTH WALES Judgment HER HONOUR : 1 The plaintiff, Noel Bishop, has commenced proceedings in defamation against the defendant, the State of New South Wales. The defendant having challenged in its defence the capacity of the matter complained of to convey the imputations pleaded, the plaintiff sought a separate trial of that question. 2 The statement of claim has been through a number of incarnations. In its most recent form (the fourth), three imputations are pleaded to have been conveyed by the matter complained of in its natural and ordinary meaning, and three (of which the second and third replicate those already pleaded) are pleaded to have been conveyed by way of true innuendo. At the commencement of the separate trial, counsel for the plaintiff conceded that the second and third imputations pleaded in each group did not differ in substance as required by SCR Pt 67 R 11(3) and abandoned reliance on the second of each group. 3 For some pleading reason that is shrouded in mystery, the surviving imputations are numbered and framed as follows: 10(a) "that [the plaintiff] engaged in lewd sexual activities with another teacher"; (f) "the Plaintiff so conducted himself as a teacher he did not have the respect of his students who held him up to ridicule"; 10A(b) "that [the plaintiff] had an adulterous relationship with another teacher"; 10A(f) "the Plaintiff so conducted himself as a teacher he did not have the respect of his students who held him up to ridicule". 4 Imputations10(a) and (f) are the imputations alleged to have been conveyed by the matter complained of in its natural and ordinary meaning; imputations 10A(b) and (f) are alleged to have been conveyed by way of true innuendo. It will be necessary at a later point in these reasons to refer to the extrinsic facts alleged to have been known to some recipients of the matter complained of upon which the plaintiff relies as contributing to, or creating, the defamatory quality of the matter complained of. 5 At an earlier stage of the pleadings, Levine J dealt with a different challenge to the imputations then pleaded. Those imputations included imputations framed in precisely the same terms as those now numbered 10(a) and 10A(b). The objections then taken were that imputation 10(a) was embarrassing because ambiguous, a contention Levine J rejected, and that two of the imputations then pleaded did not differ in substance, an argument which Levine J accepted (Bishop v State of New South Wales, unreported 12 March 1998). I do not understand the defendant now to advance any objections to the imputations numbered 10(a) or 10A(b). Its challenge is directed to the imputations numbered 10(f) and 10A(f), which, it will be observed, are the same imputation pleaded alternatively or cumulatively as false and true innuendo. The present challenge is that the matter complained of is incapable, with or without knowledge of the extrinsic facts pleaded, of conveying this imputation. 6 It is now necessary to turn to the rather unusual circumstances in which this challenge arises. It is convenient, first, to outline the background facts (as they are pleaded; the truth of these facts may, for the purposes of the present proceeding only, be assumed) and the circumstances of the alleged publication of the matter complained of. 7 The plaintiff is and at all material times was a school teacher employed in the NSW Department of School Education. For present purposes, there is no dispute that the State of NSW is appropriately named as defendant. In 1997 the plaintiff was employed at the Farrar Memorial Agricultural High School. On 16 October of that year students and staff of the school presented a theatrical performance in the nature of a review, made up of a series of sketches. The plaintiff claims that in one of the sketches he was lampooned. A description of the sketch is annexed to the statement of claim as Schedule A. 8 According to the author or authors of Schedule A the sketch was performed by two students who took the role of a male and female engaged in a variety of sexual activities. This is the matter complained of. The plaintiff alleges that he was clearly identifiable to the audience as the person intended to be portrayed by the student taking the male role, by reason of the name given to the student (the plaintiff's given and surnames, with a humorous middle name between) and by the distinctive way in which the student was dressed. A female teacher at the school was identifiable by reason of the name given to the student taking the female role, by his physiognomy, and by his clothing. Both the plaintiff and the female teacher are married, but not to one another. Assuming that the plaintiff can establish that the sketch was presented to the audience as described, and that he could be identified as the male teacher represented, the sketch was capable of conveying imputation 10(a). The sketch was capable of conveying imputation 10A(b) to those recipients who knew the plaintiff was married to a woman other than the female teacher. The question which now arises for determination is whether the matter complained of was capable, either in its natural and ordinary meaning, or by reference to the additional facts pleaded as extrinsic facts known to some recipients, of conveying the imputation that the plaintiff so conducted himself as a teacher that he did not have the respect of his students. 9 The first step is to identify with some precision the "matter complained of". That is the sketch as it was performed. The matter complained of consists of the words, actions, gestures and any devices (for example, costuming) that conveyed or helped to convey the message or meaning of the sketch. That is, the content of the sketch is what was published, and that therefore constitutes the matter complained of. In the absence of a video or tape recording of the sketch or a transcript or even a script (with or without stage directions), there is no objective account of the actual words, actions, gestures or devices, that went into the publication, such as ordinarily exists - for example, where an allegedly defamatory publication is made by means of television, radio or print media. But the absence of an objectively reproducible publication has never been a bar to a claim in defamation, as is obvious from the availability of an action in respect of spoken, but unrecorded, words. It is simply a question of evidence. The findings as to just what was contained in the publication will depend upon the evidence as it emerges at the trial. In this separate trial, the best I can do is to assume that the evidence given will substantially conform to the description of the sketch given in Schedule A. Levine J made observations to similar effect when the proceedings came before him. 10 The fact that it was students who portrayed the plaintiff and the female teacher was not integral, and was indeed extraneous, to the matter complained of. If the sketch was defamatory, it was defamatory because of its content. That is, if it conveyed imputation (f) it did so because of its content, and not because of the identity of the participants. Although in the description provided in Schedule A it is stated that students took the roles, the fact that they took those roles was not a part of what was conveyed in the matter complained of. The fact (if it be the fact) that the plaintiff was held up to ridicule by students was not conveyed by the subject matter of the sketch. A conclusion that the plaintiff lacked the respect of his students because they held him up to ridicule (if it were to be drawn) could only be drawn, not from the content of the sketch (that is, the matter complained of), but from the fact that the students performed the sketch. That was neither stated nor implied in the sketch. (It would be quite different if, in a review or other report of the performance, it had been stated that students performed a sketch of the kind described - that it was performed by students would then be part of the matter complained of). 11 What the plaintiff seeks to establish, properly analysed, is that, because students engaged in the publication of imputations 10(a) and 10A(b), thereby holding him up to ridicule, it should be inferred that they lacked respect for him, and, further, that he had so conducted himself as to bring about that lack of respect. 12 It may or may not be valid to assert that, because students lampooned the plaintiff in a sketch (if that is the proper characterisation of the sketch) that they lacked respect for him, and, from that, that it was the plaintiff's conduct as a teacher that resulted in that lack of respect. But the matter complained of is not an assertion that the students lampooned the plaintiff, by publishing imputations 10(a) or 10A(b) or otherwise; the matter complained of is the (alleged) lampooning. Nothing in the matter complained of necessitates or warrants any conclusion that it was students who performed the lampooning (even if that was a fact and was known to the audience) nor that the lampooning represented a lack of respect based upon the plaintiff's conduct. 13 An analogy may be drawn with allegedly defamatory imputations of a more frequently encountered kind. Assume, for example, that "the Daily Bugle" published a news report to the effect that the plaintiff had stolen money from his employer. Such a publication conveys the imputation that the plaintiff is a thief. The plaintiff could not, however, succeed on a further imputation that the plaintiff was publicly humiliated because the "Daily Bugle" published a defamatory imputation about him. That would be to confuse an imputation conveyed by the content of the matter complained of with damage done because a defamatory imputation was published, and to add another layer to the matter complained of. The plaintiff's pleaded imputation 10(f) amounts to a pleading that the plaintiff was defamed because he was defamed. It would, as I have observed above, be different if the matter complained of was a publication, by a third party, of an imputation that the plaintiff had been defamed by his students - that would, or might be capable of conveying the imputation that the plaintiff lacked their respect. 14 Accordingly, I am satisfied that the matter complained of is incapable, in its natural and ordinary meaning, of conveying imputation 10(f). 15 It is necessary then to consider whether, to those recipients to whom the matter complained of was published and who were in possession of knowledge of the extrinsic facts pleaded, the matter complained of might have conveyed the imputation. The extrinsic facts on which the plaintiff relies are particularised as follows: "The material complained of was published to staff and students of the Farrar Memorial Agricultural High School and their friends and relatives which said persons had knowledge of the fact that both the plaintiff and [the female teacher] were married but not to each other." 16 These facts, if established, might exacerbate the impact of the matter complained of in conveying imputation 10A(b), but they do not further the plaintiff's cause in relation to imputation 10A(f). The result therefore must be that the matter complained of, taken together with the extrinsic facts pleaded, is incapable of conveying imputation 10A(f). 17 The order I make is that imputations 10(f) and 10A(f) are struck out. The plaintiff is to pay the defendant's costs of the proceeding. ******* Last Modified: 09/27/2000 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.