New South Wales Supreme Court CITATION : TUCKER & ANOR v ECHO PUBLICATIONS PTY LTD & ANOR [2003] NSWSC 554 HEARING DATE(S) : 6 November 2002 JUDGMENT DATE : 25 June 2003 JUDGMENT OF : Levine J DECISION : 1. I decline orders 1 - 3 in the amended notice of motion.; 2. The defendant has leave to amend contextual imputation 7(a)(ii) in accordance with paragraph [21] of these reasons.; 3. I order the defendants to provide further and better particulars, within 21 days of today, of their case under s16 with respect to contextual imputations 7(a)(iv), (v), (vi) and (vii).; 4. The plaintiffs are to pay the defendants costs of the hearing of the motion.; 5. I place the matter in the Registrar's Defamation Directions List on 11 July 2003. CATCHWORDS : Admission on pleading - leave to withdraw - comment - altrenative defences - s16 defence - contextual imputations vis-à-vis failed plaintiff's imputations - s7A(4)(a) Defamation Act LEGISLATION CITED : s 7A Defamation Act 1974 Casey v Australian Broadcasting Corporation (1981) 1 NSWLR 305 Fidelitas Shipping Co Ltd v V/O Exportchleb [1991] 1 QB 630 Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 CASES CITED : Hepburn v TCN Channel Nine [1984] 1 NSWLR 386 John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541 McBride v Australian Broadcasting Corporation [2000] NSWSC 747 O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 Whelan & Anor v John Fairfax Publications Pty Ltd & Anor [2002] NSWSC 1028 ROSS TUCKER (First plaintiff) HAROLD ROSS (Second plaintiff) PARTIES : v ECHO PUBLICATIONS PTY LTD ACN 004 000 239 (First defendant) FAST BUCK$ (aka JOHN ANDERSON) (Second defendant) FILE NUMBER(S) : SC 20472 OF 2000 P White (Plaintiff) COUNSEL : B Connell (Defendant) Eliot & Sochacki (Plaintiff) SOLICITORS : Corrs Chambers Westgarth (Defendant) [2003] NSWSC 554 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE WEDNESDAY 25 JUNE 2003 20472 OF 2000 ROSS TUCKER (First plaintiff) HAROLD ROSS (Second plaintiff) v ECHO PUBLICATIONS PTY LTD ACN 004 000 239 (First defendant) FAST BUCK$ (aka JOHN ANDERSON) (Second defendant) JUDGMENT (Admission on pleading – leave to withdraw – comment – altrenative defences – s16 defence – contextual imputations vis-à-vis failed plaintiff's imputations - s7A(4)(a) Defamation Act ) 1 The plaintiffs sue the defendants in relation to publications in "The Byron Shire Echo" on 7 December 1999. 2 A trial pursuant to s7A of the Defamation Act has been conducted. 3 The following imputations were left to the jury: (a) That he, as a proprietor of "The Saturday Star", was a ruthlessly unfair employer in that having been ordered by a court to pay a former employee $7,000 compensation for being underpaid, he sought to evade paying the judgment debt by a process of stonewalling and intimidation. (b) That he, being in control of the content of "The Saturday Star", abused his power of publication by publishing false statements about a former employee for the purpose of putting pressure on her to compromise or give up her entitlement to compensation as awarded by a court. (c) That he, as a newspaper proprietor, and being in control of the content of "The Saturday Star", abused his power of publication by misrepresenting the facts concerning other people in virtually every article that appeared in that newspaper for the purpose of furthering his personal causes. (d) That he is a coward in that he deliberately chose to use his power of publication as a proprietor of a newspaper to intimidate someone he perceived to be much less able than others to defend herself. (e) That he acted dishonourably in the negotiations to settle a claim for compensation by a former employee in that he made an offer of settlement which, after it was accepted by the former employee, he refused to honour. (f) That he as a proprietor of "The Saturday Star" caused to be published defamatory misrepresentations about Mr Tom Wilson such that he and Mr Ross had to pay Mr Wilson $10,000. (g) That he is a domineering employer in that he abuses employees by belittling them and shouting at them using obscene language. (h) That he is a bully. 4 The jury found imputations (a), (b), (d) and (f) not to have been carried by the matter complained of in respect of Mr Tucker against both defendants. Fast Buck$ appeared neither at the s7A trial nor on the present motion. 5 As to imputation (c), the jury found that it was carried by the matter complained of but also found that it was not defamatory. 6 Imputations (e) and (g) were found to be carried and were found to be defamatory. 7 Imputation (h) was found to be carried but not found to be defamatory. 8 All Mr Ross's causes of action failed. 9 In the amended statement of claim filed on 18 July 2001 the plaintiff, in paragraph 3, pleads against the first defendant that it was the "owner" of "The Byron Shire Echo". In paragraph 5 it is pleaded that the first defendant "published" in that newspaper the relevant matter complained of. 10 In its defence filed to that amended statement of claim the first defendant admits the allegation in paragraph 3. In a later defence, filed after the s7A trial, the defendant, in paragraph 2, makes admissions as to its corporate status, that it was the publisher of "The Byron Shire Echo" but makes no admission as to ownership. In paragraph 3 of that pleading the first defendant admits that it published the relevant matter complained of. 11 In this context I turn to the notice of motion filed in court on 6 November 2002. The applicant plaintiff seeks to have paragraph 2 of the defence of the first defendant last referred to struck out on the basis that no leave was granted for it to withdraw the admissions made as to "ownership". 12 Further relief is sought in relation to the pleading of justification, comment and contextual truth. 13 In relation to the first matter, whilst strictly the first defendant should obtain leave, the matter is essentially of no moment. The plaintiff has the benefit of the admission of publication. There is no present apparent relevance of the allegation of "ownership". Indeed the allegation seems presently to be quite immaterial. The point, of course, is that the defendant admitted publication when most relevantly required, namely for the purposes of the s7A trial. Ownership was not there relevant: the defendant, in my view, is entitled to leave to change its plea to put in issue a matter which, as I have said, appears to me to be immaterial in any event. 14 The plaintiff next complains about the pleading of the defences of comment. Those defences are pleaded as follows: 9 In further and alternative answer to the Statement of Claim, the first defendant says that the matter complained of in paragraph 5 of the Statement of Claim: (a) related to matters of public interest; (b) amounted to comment; (c) that comment - (i) was the comment of the first defendant or alternatively of its servants or agents; or (ii) was not, and in its context and in the circumstances of the publication of the matter complained of, did not purport to be, the comment of the first defendant or of any servant or agent thereof; and (iii) was based upon proper material for comment and no other material or was based to some extent on proper material for comment and represented an opinion which might reasonably be based on that material to the extent to which it was proper material for comment. 15 It can be seen that the defendant is purporting to plead all three statutory defences of comment pursuant to ss32, 33 and 34 of the Defamation Act 1974. The plaintiff contends that the pleading is internally inconsistent, embarrassing and is not clear exactly as to what defence the first defendant intends to raise. 16 Whilst it is the case that the plaintiff must prove different matters in defeasance of the respective defences (see s32(2), 33(2) and 34(2)), the initial onus is of course upon the defendant to make out its case under the respective defences of comment, namely that of the defendant, the servant or agent of the defendant or, as it is in shorthand described, that of a stranger. 17 The defendant is entitled to plead the defences in the alternative, of this there can be no question and no breach of SCR Pt 15 r 17 (which relates to departure from previous pleadings) can arise. It is tolerably clear that the first defendant is pleading the three defences in the alternative. Whilst it might be difficult to isolate a distinction between the defence of a comment of a corporate defendant and a comment of the servant or agent of a corporate defendant, even that could become clear upon the tender of evidence. Not only do I see no inconsistency as a matter of pleading (see Casey v Australian Broadcasting Corporation (1981) 1 NSWLR 305), I do not see any failure to comply with SCR Pt 67 r 17(2)(c). I do not read those rules as being mutually exclusive in their operation. What the defendant appears to have failed to do is comply with SCR Pt 67 r 17(5) by failing to identify the servant or agent. Non-compliance with this rule however does not preclude me from declining to make order 2 in the amended notice of motion. 18 Order 3 sought in the amended notice of motion concerns the contextual imputations pleaded by the first defendant. Those contextual imputations are: 7(a) Each of the plaintiff's imputations was published contextually to the following imputations: (i) (in relation to the plaintiff's imputation (e) only) that the plaintiff is a domineering employer in that he abuses employees by belittling them and shouting at them using obscene language; (ii) that the defendant behaved abusively to an employee by shouting at her, insulting her, making sexist remarks, paying her less than award wages and using obscene language; (iii) that the plaintiff conducted the affairs of the Saturday Star Newspaper so that it made under award payments to Leanne Potts; (iv) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to fail to pay Leanne Potts compensation in excess of $7,000 as ordered by the Industrial Relations Court for under award payments; (v) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to apply pressure on Ms Potts in order to delay and avoid paying her entitlements as ordered by the Industrial Relations Court for under award payments; (vi) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to publish an article falsely claiming that the paper's closure/reduced circumstances were in part due to Ms Potts and the "mad industrial laws"; (vii) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to publish an article falsely claiming that Ms Potts was incompetent, disloyal and slack in her performance of her job; (viii) that the plaintiff as a proprietor of the Saturday Star Newspaper behaved in a ruthlessly unfair manner to Ms Potts. 19 The plaintiff complains in relation to contextual imputation 7(a)(ii) that it is a rolled-up imputation containing a list of diverse ways in which being "abusive" might be interpreted. Correctly, in my view, the plaintiff asserts that this imputation contains at least two separate and independent concepts: verbal abuse and payment of under award wages. It is to be noted that contextual imputation 7(a)(iii) is discretely concerned with the payment of under award wages. 20 It must be taken that the first defendant has pleaded contextual imputation 7(a)(ii) with great care on the basis that it can prove the components that go to establish its real sting, namely the abusive behaviour. What is embarrassing for the plaintiff, and rightly so in my view, is the inclusion of the component relating to payment of less than award wages. By itself, and even in addition to the other components of the imputation, it cannot go to proving "behaved abusively" in the real sense as in effect defined in the contextual imputation. 21 I propose to allow contextual imputation 7(a)(ii) to be litigated on the basis that it does not contain the words "paying her less than award wages". 22 As to contextual imputation 7(a)(iii), it is argued that this is incapable of being defamatory. That, to my mind, is essentially a question for the tribunal of fact which will happen to be a judge. I do not accept the submission that an imputation in these words is "criticism neutral". A statement of the paying of under award wages, without more or in the context of the conduct of the affairs of the newspaper, is one which in my view points to a matter of some sensitivity still within the community in this State as a whole. 23 An attack is also made on contextual imputation 7(a)(iv) on the basis that it is incapable of being defamatory. I simply do not agree with that proposition on the basis of its assertion of failure to pay in a context of having been ordered to do so. It is not as clear-cut as contextual imputation 7(a)(iii) though should be left to the tribunal of fact. 24 The plaintiff otherwise abandoned his submissions in relation to contextual imputations 7(a)(iv) and (v) being gradations in seriousness of the same basic assertion (compare Hepburn v TCN Channel Nine [1984] 1 NSWLR 386 at 399B). 25 As to contextual imputation 7(a)(vi) the first defendant is to be taken to have amended that by deleting the words "in part". This amendment derogates from any other argument available to the plaintiffs as to the availability of the contextual imputation as a matter of capacity, and I find that it is capable in the amended form of being conveyed. 26 As to contextual imputation 7(a)(viii), it is contended by the plaintiff that it is ambiguous, imprecise and embarrassing, failing to identify the specific act or conduct of the plaintiff which is said to be "ruthlessly unfair". The requirement of precision, of course, does apply to contextual imputations: McBride v Australian Broadcasting Corporation [2000] NSWSC 747 at paragraph [51]; John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541; [2001] NSWCA 434. It is argued, however, that this is not a case of mere imprecision of limited scope curable by particulars: see Blake at [58] and McBride at [34] and [48]. With this submission I find myself in disagreement. The expression contained in the contextual imputation is in the matter complained of in paragraph 18 and I accept the submission for the first defendant that it is available as general allegation: see Blake at paragraphs [59] and [70]. It has a tolerably clear meaning and the first defendant in my view has clearly identified its case in the particulars. 27 These rulings deal with what I will describe as the first component of the plaintiff's attack upon the first defendant's contextual imputations. 28 The second component gives rise to a matter which has been dealt with previously, namely by myself, in Whelan & Anor v John Fairfax Publications Pty Ltd & Anor [2002] NSWSC 1028. This concerns the relationship, if any, between the contextual imputations pleaded by the defendant after the conclusion of the s7A trial, with the imputations as pleaded by the plaintiff and as disposed of, either by finding them or not finding them, by the jury in the s7A trial. 29 It is desirable for the purposes of this component of the plaintiff's submissions to set out imputation (a) pleaded by the plaintiff but found by the jury not to have been carried: (a) That he, as a proprietor of "The Saturday Star", was a ruthlessly unfair employer in that having been ordered by a court to pay a former employee $7,000 compensation for being underpaid, he sought to evade paying the judgment debt by a process of stonewalling and intimidation. 30 The first defendant's contextual imputations relevant to this aspect are: 7(a) (iv) that the plaintiff conducted the affairs of the Saturday Star newspaper so as to fail to pay Leanne Potts compensation in excess of $7,000 as ordered by the Industrial Relations Court for under award payments; (v) that the plaintiff conducted the affairs of the Saturday Star Newspaper so as to apply pressure on Ms Potts in order to delay and avoid paying her entitlements as ordered by the Industrial Relations Court for under award payments; (viii) that the plaintiff as a proprietor of the Saturday Star Newspaper behaved in a ruthlessly unfair manner to Ms Potts. 31 For the plaintiff it is contended that the combination of the above contextual imputations constitutes a meaning equivalent to the plaintiff's imputation (a) which was found by the jury not to have been carried. 32 It is part of the first defendant's case under s16 (contextual truth) that it will seek to rely on the combined effect of imputations appropriate to be combined (Hepburn, above, at 400). Given the content of the matter complained of, the plaintiff concedes that it would be appropriate to combine imputations 7(a)(iv), (v) and (viii). 33 However, it is argued for the plaintiff that an "interlocutory" determination of the tribunal of a separate question of fact (namely that imputation (a) pleaded as a cause of action by the plaintiff was not made out) binds the parties for the rest of the proceedings: Fidelitas Shipping Co Ltd v V/O Exportchleb [1991] 1 QB 630 at 642; O'Toole v Charles David Pty Ltd (1990) 171 CLR 232 at 245, 160 and 298. 34 The jury, so the plaintiff contends, assessed the plaintiff's imputations on the basis that each contains the meaning conveyed by the language of the imputation, as well as meanings the same in substance. The issue estoppel constituted by the jury's answers and the verdicts entered on the imputations which it found not conveyed by the matter complained of, prevent the first defendant from raising substantially the same meanings again by way of contextual imputations. 35 Further, for the first defendant to do so would constitute an abuse of process. For the first defendant to plead meaning found not to be conveyed by the jury as part of its case for the purposes of its defence under s16 would constitute a gross injustice to the plaintiff. It is contended that this injustice should not be permitted merely because of the "contrivance" of pleading the meanings in parts to be relied on in combination at the hearing. The inherent power of the Court and the power provided by SCR Pt 15 r 26 should be exercised in favour of the plaintiff. 36 S7A of the Defamation Act 1974 states: 7A (1) If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff and, if it is, whether the imputation is reasonably capable of bearing a defamatory meaning. (2) If the court determines that: (a) the matter is not reasonably capable of carrying the imputation pleaded by the plaintiff, or (b) the imputation is not reasonably capable of bearing a defamatory meaning, the court is to enter a verdict for the defendant in relation to the imputation pleaded. (3) If the court determines that: (a) the matter is reasonably capable of carrying the imputation pleaded by the plaintiff, and (b) the imputation is reasonably capable of bearing a defamatory meaning, the jury is to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory. (4) If the jury determines that the matter complained of was published by the defendant and carries an imputation that is defamatory of the plaintiff, the court and not the jury is: (a) to determine whether any defence raised by the defendant (including all issues of fact and law relating to that defence) has been established, and (b) to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount. (5) Section 86 of the Supreme Court Act 1970 and section 76B of the District Court Act 1973 apply subject to the provisions of this section. 37 It is quite clear that the jury's function is limited, at the threshold, to a simple question of fact as between the plaintiff and the defendant. That question is whether or not the plaintiff has made out its case by persuading the jury that, more probably than not, the matter complained of carries the pleaded meaning, that is, the plaintiff's imputation. If that is resolved in favour of the defendant that is the end of the matter with respect to that cause of action. If the question is resolved in favour of the plaintiff, the jury then determines whether or not that found or carried meaning is, as a matter of fact, defamatory of the plaintiff. If that issue is determined in favour of the defendant, that is the end of that cause of action. If it is determined in favour of the plaintiff, then, as the section requires, all other issues, which must include the defence under s16 of the Act, are to be decided by the judge (s7A(4)(a)). I have ignored for present purposes the reference to "published" in s7A(4). 38 That stark, and indeed curious, bifurcation of roles must never be overlooked. What the defendant is doing by raising a defence under s16 is raising a defence to, and after a jury has found, a cause of action, or causes of action (being the s9 imputations) have been made out. To those causes of action the defendant is pleading its defences. The defendant of course, trite though it is to say, pleads no defence to absent or failed causes of action. 39 I am not persuaded, for present purposes, that it is correct to characterise a jury's finding in favour of a defendant (or, indeed, in favour of a plaintiff) in relation to pleaded plaintiff's imputations, as "interlocutory". 40 The resolution of this issue is not amenable to the use by either the plaintiff or the first defendant of a transcript of the submissions by counsel to the jury in the course of the s7A trial on the issues the jury in that context had to resolve: Whelan & Anor v John Fairfax Publications Pty Ltd & Ors [202] NSWSC 1028 at para [20]. 41 In my view, in any event, the three contextual imputations do not coincide cumulatively in substance with that originally pleaded by the plaintiff but found not to have been carried by the jury. 42 Whilst as the plaintiff has submitted, the principles of abuse of process and res judicata are well established (see Casey v Australian Broadcasting Commission at 308 and Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404 at 410-414; Spencer Bauer, Res Judicata, 3rd ed (1996) Paris, 169-171), the issue, as between the plaintiff and the first defendant as resolved by the s7A trial, that is the matter adjudged by the jury, is discrete and nothing by way of the litigation of the defence is precluded to the defendant by the structure of its pleading under s16. The very terms of s7A(4)(a), in my opinion, require that this be so. 43 Insofar as the first defendant after the conclusion of oral argument sought to make reference to the transcript of proceedings in the s7A trial, and indeed provided me with a copy thereof. I have declined to refer to it. 44 Similar submissions were made by the plaintiff in respect to contextual imputations 7(a)(v), (vi) and (vii) vis-à-vis the plaintiff's original imputation (b) which was found not to have been conveyed. In relation to the plaintiff's position with respect to this component I am of the same view and will provide none of the relief sought. 45 The plaintiff also seeks relief in relation to what is asserted to be a failure properly to particularise the case of contextual truth. This applies in relation to contextual imputations 7(a)(iv) and (v). In relation to contextual imputations 7(a)(vi) and (vii) it also seems to be the position that there is a want of particularisation of the "falseness" referred to in these two imputations. 46 In relation to contextual imputations 7(a)(iv) and (v), particular (B)(xii) amounts to no more, as the plaintiff submits, than a restatement of the contextual imputations. The first defendant, however, has taken the position that it will provide further particulars and I propose to it them to do so. 47 The end result, therefore, is: 1. I decline orders 1 – 3 in the amended notice of motion. 2. The defendant has leave to amend contextual imputation 7(a)(ii) in accordance with paragraph [21] of these reasons. 3. I order the defendants to provide further and better particulars, within 21 days of today, of their case under s16 with respect to contextual imputations 7(a)(iv), (v), (vi) and (vii). 4. The plaintiffs are to pay the defendants costs of the hearing of the motion. 5. I place the matter in the Registrar's Defamation Directions List on 11 July 2003. ********** Last Modified: 06/26/2003 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.