New South Wales Supreme Court CITATION : KELLY v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 586 revised - 30/06/2003 HEARING DATE(S) : 27 June 2003 JUDGMENT DATE : 27 June 2003 JUDGMENT OF : Levine J DECISION : 1 Imputations (a), (b), (d) as amended to read "the plaintiff is an exhibitionist", (e) and (f) are capable of being carried by the matter complained of, capable of being defamatory as imputations arising from the natural and ordinary meaning.; 2 Imputations (g) and (h) will go to the jury only as true innuendos.; 3 Imputation (c) is struck out with leave to amend.; 4 The defendant is to pay the plaintiff's costs.; 5 I direct that the plaintiff file an amended statement of claim in accordance with these reasons within seven days. The defendant is to file its 7A defence within seven days.; 6 Pursuant to Pt 31 r 2, I order the trial by jury of the issues joined by the parties on those pleadings and place the matter in the list to be called up.; 7 Exhibit A will be kept with the Court file until further notice. CATCHWORDS : Imputations - natural and ordinary meaning/true innuendo - capacity - "the plaintiff is a homosexual" - capacity to defame - mistaken identity - irrelevant to the question of capacity Australian Broadcasting Corporation v Hanson, (28 September 1998, BC9805224) Ettingshausen v Australian Consolidated Press (1991) 23 NSWLR 443 Greek Herald v Nikolopolous (2002) 54 NSWLR 165 Horner and Anor v Goulburn City Council and Anor (unreported, Levine J, 5 December 1997) CASES CITED : John Fairfax Publications v Rivkin NSWSC 18 April 2001 Nick Scali & Co Pty Ltd v John Fairfax Publications Pty Ltd (unreported, Levine J, 15 April 1993) Quilty v Windsor (1999) SLT 346 Readers Digest Services Pty Ltd v Lamb (1981-1982) 150 CLR 500 Rivkin v Amalgamated Television Services Pty Limited (2001) NSWSC 432 Rivkin v John Fairfax Publications (2002) NSWCA 87 ROBERT KELLY (Plaintiff) PARTIES : v JOHN FAIRFAX PUBLICATIONS PTY LTD (Defendant) FILE NUMBER(S) : SC 20062 OF 2003 B McClintock SC (Plaintiff) COUNSEL : T Blackburn (Defendant) Gilbert & Tobin (Plaintiff) SOLICITORS : Freehills (Defendant) [2003] NSWSC 586 Ex tempore - revised IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE 27 JUNE 2003 20062 OF 2003 ROBERT KELLY (Plaintiff) v John Fairfax Publications Pty Ltd ( Defendant) JUDGMENT (Imputations - natural and ordinary meaning/true innuendo – capacity – "the plaintiff is a homosexual" – capacity to defame – mistaken identity – irrelevant to the question of capacity) 1 The plaintiff, Mr Robert Kelly, sues the defendant in respect of a publication in "The Sun Herald" of 16 February 2003. The publication as disclosed by the original newspaper, exhibit A, was part of the "Naked City" column by Alex Mitchell and Candace Sutton. The column's title is not expressly pleaded. 2 The publication is comprised of a photograph which may - and I stress may - be described as depicting a male lying on his back strapped to a grand piano, partially clothed, in the sense that the photo indicates that the male is wearing trousers, no shoes or socks, nothing on the top part of his body and either a pair of sunglasses or something over his eyes, or possibly something around his neck. 3 The photograph also depicts a lady walking past, no observation need be made by me as to whether that discloses anything other than the lady walking past. 4 It is apparent, by the application of one's general knowledge of this city, that the photograph was taken by the Pool of Remembrance near the War Memorial in Hyde Park. 5 The photograph bears the caption "Rob Kelly accepts a brief on bondage", and identifies the photographer as Edwina Pickles. There is a headline, "Solicitor lays down the law". The text is as follows: "No, it's not John Brogden's latest 'I'll do anything to get elected' strategy, it's lawyer Rob Kelly in Hyde Park practicing his piano-top bondage display as part of this year's street performance at the Gay and Lesbian Mardi Gras." Kelly, the Queensland Performing Arts Trust chairman, is a senior partner with law firm Gadens. Truly. Demonstrators at today's anti-war march take note: Hands off! Rob is a peaceful guy." 6 The plaintiff says the publication carries several imputations defamatory of him, arising from the natural and ordinary meaning or as true innuendos. 7 I understand that the plaintiff, Robert Kelly, had been a senior partner in the law firm Gadens, but was no longer at the date of publication. I understand that he is not the person depicted in the photograph. This case thus appears to be one of mistaken identity. 8 Further, as the true innuendo pleaded and particulars state, the plaintiff in this action, Mr Robert Kelly, the (former) senior partner at Gadens, but not the person in the photograph, is a happily married heterosexual and a person who holds himself out as a happily married heterosexual. It is thus clear that something went dreadfully wrong in the publication of the material sued upon. 9 However, the issue of mistaken identity must be set to one side in determining the question of law as to whether the matter complained of is capable of being defamatory. By consent, pursuant to SCR Pt 31 r 2, that issue has been argued for determination. I have had the benefit of Pt 67 r 12A notices from each side and submissions from counsel which, I must remark, were at times almost impassioned. 10 The defendant says, simply and starkly, that this publication is incapable of being defamatory at all. 11 In general terms, this question can be asked: could the ordinary reasonable reader, seeing the photograph of the person so depicted and reading the words that accompany that photograph, think the less of that person by reason of what is depicted in the photograph and the accompanying words. As a general proposition, my answer to that question is yes. 12 However, the law requires plaintiffs to specify meanings and to them, I now turn. 13 The first imputation is: 4(a) the Plaintiff is a person whose picture showing him substantially naked and strapped to a piano has been published in the Defendant's newspaper, the Sun Herald, which has a wide and extensive circulation. 14 For the defendant, it is argued that this meaning is simply incapable of being conveyed when one applies the usual tests, not least because there is no reference in the publication as a whole to the defendant's newspaper "The Sun Herald" having a wide and extensive circulation. 15 That component of the defendant's position, and the form of the imputation, takes us into the Ettingshausen v Australian Consolidated Press ((1991) 23 NSWLR 443) area. What Hunt J said at page 449 was: "The defendant nevertheless did argue (somewhat surprisingly) that the matter complained of was not capable of conveying that part of the imputation which asserts that its own magazine was "a publication with a widespread readership". The contents page of the magazine, however, identifies the names of its national advertising sales manager, its New South Wales advertising sales executive, its associate advertising manager in Victoria and its representatives in Queensland, South Australia, Western Australia and New Zealand. The annual subscription rates are given not only for Australia but also for New Zealand and other overseas countries. The inference is accordingly available that the defendant's "HQ" magazine has a widespread readership". His Honour there was referring to an inference available from matters I understand expressly to have been referred to in relation to the particular magazine. Here I accept for the purposes of this capacity argument that "The Sun Herald" as a newspaper of wide and extensive circulation would, at the very least, be a matter of general and common knowledge. Certainly if the plaintiff chose to plead other material, that proposition would be available by way of inference therefrom. 16 The nub of the defendant's complaint otherwise seems to be directed at some special status said to be enjoyed by the Gay and Lesbian Mardi Gras as a "relentlessly mainstream" cultural event. It therefore is anodyne in terms of the views ordinary reasonable readers could form about anyone who participated in it. Insofar as that component of the defendant's case is in some way connected with the notion of homosexuality, I will deal with that when I come to the discrete imputation (f). Otherwise I am unpersuaded by it on the question of capacity. 17 When I return to the proposition that I enunciated earlier to the effect that could the ordinary reasonable reader, viewing the picture of the person so depicted and what was depicted in it and reading the words that accompanied it, think the less of that person by what was depicted and said, (my answer to it being in the affirmative), I have little difficulty in coming to the conclusion that imputation 4(a) could be carried by the matter complained of and could be defamatory. The question of what the picture could or would be understood as depicting will be a matter for the relevant tribunal. It really seems to be playing with language at least to argue now about whether it shows the person substantially naked: that is getting dangerously close to determining whether a glass is half empty as opposed to being half full. 18 I turn to imputation 4(b): 4(b) the Plaintiff is a sexual pervert who engages in sadomasochistic bondage. 19 This is an imputation said to be incapable of arising, an argument again advanced in the context of what is said about the Gay and Lesbian Mardi Gras with the additional component asserted to be that the use in the imputation of the word "sadomasochism" "loads" the imputation with connotations of gratification from the infliction and receiving of pain. Again, I am of the view that this matter complained of, made up of that photograph and what it depicts and the accompanying words, could be understood by the ordinary reasonable reader, not least by reference to the use of the word "bondage", as encompassing a notion as contained in that imputation. The word "bondage" as a matter of ordinary English does in my view incorporate "sadomasochism". I hold imputation 4(b) to be capable of being carried and capable of being defamatory. 20 Imputation (c) as presently framed is: 4(c) the Plaintiff behaved in such a way as to deserve to be ridiculed by the Sun Herald newspaper. 21 In that form, it is fraught with problems because it falls within what I would describe, for present purposes, as the Scali area of difficulty in pleading ridicule (Nick Scali & Co Pty Ltd v John Fairfax Publications Pty Ltd, unreported, Levine J, 15 April 1993). 22 The plaintiff has, however, proposed a substitute imputation to this effect: The plaintiff, by reason of permitting himself to be photographed partly naked in Hyde Park with bonds, has justifiably exposed himself to the ridicule of the defendant. 23 Such an imputation, in my view, is proper in form, capable of arising and capable of being defamatory. I would otherwise strike out the presently pleaded imputation (c). 24 Imputation (d) is now to be read as, "The plaintiff is an exhibitionist". If there is one thing that can be said about this publication, in my respectful view, it is that it most clearly could carry this meaning. Whilst one must look at the whole of the publication, the photograph almost is enough. Whether that is capable of being defamatory is another question. I am of the view, again going back to that basic proposition with which I prefaced these reasons that it could be. Whether the jury in the end will find it to be defamatory, if it finds it carried, will be a matter for it. 25 Imputation (e) is: 4(e) the Plaintiff proposed to engage publicly in a bondage display at a Gay and Lesbian Mardi Gras. 26 That is said to be ambiguous. I simply do not understand that submission. The wording of the imputation to me is quite clear. The question is whether it is capable of being defamatory. It is unarguably, in my view, capable of being conveyed when one considers at least the text of the article which refers to the person depicted "practicing his piano-top bondage display as part of this year's street performance…" 27 The defendant's position vis-à-vis this imputation focuses particularly on the two words "bondage display" and, in my view, unrealistically and unreasonably seeks to restrict them to meaning no more than being strapped to the piano. That proposition is tied up with the view that would have to be reached as to what the photograph depicts of the person in terms of the degree of nakedness. I find imputation (e) capable of being carried by the matter complained of and being defamatory. 28 Imputation (f) is, "the Plaintiff is a homosexual". To this I will return. 29 Imputation (g) is, "the Plaintiff is a hypocrite". That imputation is warranted by the plaintiff as an imputation available from the natural and ordinary meaning of the matter complained of and by reference to the extrinsic facts as a true innuendo. It escapes me entirely how, in the natural and ordinary meaning, such an imputation is carried. Particular attention was paid by the plaintiff to the use of the word "Truly" by itself after the reference to Kelly being the Queensland Performing Arts Trust chairman and a senior partner with the law firm Gadens, Kelly being tied to the piano as depicted in the photograph. If one paraphrases: "Well, believe it or not, Kelly is practising his piano-top bondage display, he is the Queensland Performing Arts Trust chairman and is senior partner with the law firm Gadens", I do not see any notion of hypocrisy in the natural and ordinary meaning. Imputation 4(g) is incapable of being carried in the natural and ordinary meaning. It is, however, available as a true innuendo and it will go to the jury only on that basis. 30 Imputation (h), "the Plaintiff is a liar", is only advanced as a true innuendo and will go to the jury on that basis. 31 I turn to imputation (f), "the Plaintiff is homosexual". It hardly could be argued that the matter complained of is incapable of carrying that meaning. The real issue in relation to the statement "the plaintiff is homosexual" is whether it is capable of being defamatory. 32 In Horner and Anor v Goulburn City Council and Anor (unreported, Levine J, 5 December 1997) I held, in connection of course with the particular publication there sued upon, that an imputation "that the first plaintiff was engaging in a homosexual relationship with the second plaintiff" was capable of being carried and capable of being defamatory. 33 Simpson J, in a decision identified by Bell J (in Rivkin, infra) as John Fairfax Publications v Rivkin NSWSC 18 April 2001, allowed an imputation "that the plaintiff had engaged in homosexual intercourse with Gordon Wood" to go to the jury. Her Honour's judgment, as I understand it, and a judgment of my own in the same litigation, was the subject of a judgment of the Court of Appeal of 26 March 2002, Rivkin v John Fairfax Publications (2002) NSWCA 87 which has since been argued in the High Court but not decided. Nothing in the principal judgment of Foster AJA dealt acutely with the question of an imputation of homosexuality as capable of being defamatory. What their Honours were there concerned with was a series of negative answers to all the questions of whether the imputations were conveyed, and this, in the context of perversity. 34 The Queensland Court of Appeal in Australian Broadcasting Corporation v Hanson, (28 September 1998, BC9805442), upheld the grant of an injunction against the publication of what is described in the judgment as a musical composition called "Back Door Man". The case is, of course, quite notorious. Their Honours were concerned with the maintenance of the injunction issued against the ABC and decided in the end to continue it. The judgment of de Jersey CJ, with whom the other Judges agreed, indicates that Miss Hanson had contended that the broadcast material gave rise to imputations that she is a homosexual, a prostitute, involved in unnatural sexual practices, associated with the Ku Klux Klan, and a man and/or a transvestite and involved in or party to sexual activities with children. 35 That string of meanings alleged to arise from the idiosyncratic form of the particular publication was described by the first instance Judge in these terms: "I can't imagine anybody listening to that production would not conclude that the assertion was that Pauline Hanson was a paedophile in the first one or that she was a homosexual and rejoiced in the fact." 36 The judgment of the Chief Justice concludes with what is really an observation: "There was no room for debate about the defamatory nature of this material." 37 That, of course, does not amount to an authoritative statement that to say of a person that the person is homosexual could be defamatory and I observe also that that statement by his Honour prefaced an important part of the Court's judgment relating to the role of a "disclaimer" as affecting the capacity of that particular material to be defamatory. 38 It is the judgment of Bell J in Rivkin v Amalgamated Television Services Pty Limited (2001) NSWSC 432 which is relied upon by the defendant as authority for the proposition that an imputation "that the plaintiff had engaged in homosexual intercourse with Gordon Wood" was not capable of being defamatory. In the course of her judgment, her Honour referred to my decision in Horner, a decision in a Scottish case of Quilty v Windsor ((1999) SLT 346). Her Honour appears to have been persuaded by arguments for the defendant before her, which referred to anti-discrimination and cognate legislation. Her Honour also took into account the concept of "general community standards" by reference to the statement of Brennan J in Readers Digest Services Pty Ltd v Lamb (1981-1982) 150 CLR 500 at 506 (see paras 24 and 25). 39 It would be interesting to pursue Mr McClintock's proposition that if it be the case that it is a general community position that no-one would think less of a person said to be homosexual, then there would be no need for all this remedial legislation. However, the pursuit of that proposition, no doubt to be refined, would have to take place elsewhere. 40 Whilst affording Bell J's decision utmost respect, I do not propose to follow it and cannot say that in any event I would be entirely in agreement with it. However, it is quite clear that Her Honour (at para 30) did have regard to the possibility that certain assertions of homosexuality in certain cases could be defamatory, not least by way of true innuendo. 41 There has intruded into this area, in my view, a new factor - and this was not mentioned in submissions - but context now is identified as playing an important part in the question of capacity to defame, at least, and that is as a consequence of Greek Herald v Nikolopolous (2002) 54 NSWLR 165. I have expressed the view that the good sense and commonsense of that approach as enunciated in the Court of Appeal is available to consider other aspects ranging from capacity in the strict sense, even to questions of difference in substance and otherwise as to form. 42 As far as I know, a jury in this State has once decided the question. In the litigation Harris v Perkins an imputation of homosexuality was found to be carried but not to be defamatory. That does not change my mind. 43 This article or the material sued upon is extraordinary - by that, I mean it is out of the ordinary in terms of the material that predominates this list. In the context of such a piece, I am not persuaded, on a capacity basis, to withdraw the imputation from the jury's consideration on the ground that it could not be defamatory of the plaintiff. The component of the true innuendo, of course, will be of critical importance in this case. 44 Imputations (a), (b), (d) as amended to read "the plaintiff is an exhibitionist", (e) and (f) are capable of being carried by the matter complained of, capable of being defamatory as imputations arising from the natural and ordinary meaning. 45 Imputations (g) and (h) will go to the jury only as true innuendos. 46 Imputation (c) is struck out with leave to amend. 47 The defendant is to pay the plaintiff's costs. 48 I direct that the plaintiff file an amended statement of claim in accordance with these reasons within seven days. The defendant is to file its 7A defence within seven days. 49 Pursuant to Pt 31 r 2, I order the trial by jury of the issues joined by the parties on those pleadings and place the matter in the list to be called up. 50 Exhibit A will be kept with the Court file until further notice. ********** Last Modified: 09/25/2013 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.