New South Wales Supreme Court CITATION : Jim Byrnes v John Fairfax Publications Pty Ltd [2004] NSWSC 635 HEARING DATE(S) : 19/07/04 JUDGMENT DATE : 15 October 2004 JUDGMENT OF : Shaw J at 1 DECISION : (1) I give leave to amend the statement of claim. (2) In accordance with ordinary practice, those paragraphs of the pleadings which have been struck out and which are not, in accordance with my ruling, to go to the jury should be the subject of the verdict for the defendant. Those aspects of the pleadings in relation to which I have given leave to replead should be reproduced in a compendious amended statement of claim. All of the other matters, I would regard as being outstanding issues to go to the jury in due course in these proceedings. (3) There seems to be some good sense in simply reserving the costs, but I will entertain any argument on that point, keeping an open mind, after the parties have considered this judgment. (4) The plaintiff must file within fourteen days an amended statement of claim to reflect this judgment. The defendant must bring in (hopefully by consent, short minutes of order) so that the orders arising from this judgment can be finalised. (5) Liberty to apply is granted in the event that I have not dealt with some particular matter which the parties need a decision upon or whether there is some other matter which legitimately arises that needs to be attended to before these interlocutory proceedings are concluded. CATCHWORDS : Application by defendant, John Fairfax Publications Pty Ltd, to strike out imputations that the plaintiff, Jim Byrnes, says arise from 3 articles published in the Sydney Morning Herald in August of 2004 - That the Judge's role is a very limited one at this early stage of the proceedings, namely to determine the question as to whether the publication is reasonably capable of carrying the imputation pleaded by the plaintiff and, as an ancillary matter, whether the pleadings are overlapping in the sense as to whether they contain matters which could be characterised as a "rhetorical flourish" and are therefore inappropriate to go forward to the jury LEGISLATION CITED : Defamation Act 1974 (NSW) s7A Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Barry v Australian Broadcasting Corporation (2002) 112 IR 33 Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 Carpenters' Investment Trading Co Ltd v Commonwealth (1952) 69 WN (NSW) 175 Keogh v The Incorporated Dental Hospital of Ireland [1910] 2 IR 577 CASES CITED : Lewis v Daily Telegraph Ltd [1964] AC 234 Reader's Digest Services Pty Ltd and Anor v Lamb (1982) 150 CLR 500 Rivkin v John Fairfax Publications Pty Ltd (unreported, 18 September 1998) Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 The King (Kate Donohue and ors) v The Justices of County Cork [1910] 2 IR 271 Whatman & Anor v John Fairfax & Sons Ltd (unreported, 20 February 1980) PARTIES : Jim Byrnes John Fairfax Publications Pty Ltd FILE NUMBER(S) : SC 20241/2003 C A Evatt (Plaintiff) COUNSEL : T Blackburn SC (Defendant) J P Donohoe (Defendant) SOLICITORS : Monte Gildea Lawyer (Plaintiff) Leanne Norman, Freehills Solicitors (Defendant) - 31 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST Shaw J Thursday 14 October 2004 20241/2003 Jim Byrnes v John Fairfax Publications Pty Ltd JUDGMENT 1 SHAW J: This is an application by the defendant in this matter, John Fairfax Publications, to strike out imputations that the plaintiff says arise from three articles published in the Sydney Morning Herald in August 2004. 2 Mr Paul Barry, a journalist writing for the Sydney Morning Herald, produced a number of pieces on "Big Jim" Byrnes. Without putting the allegations in any particular context, it is factual to say that the references to Mr Byrnes included assertions that he had ripped off old flames, unwary tradesmen, trusting friends and his own lawyers. It is said that he had been disqualified as a company director but, nonetheless, still runs companies. It is said that he had been involved in "threats" and that he is "big, bad (and very scary)". On any analysis, this is robust journalism. It is not my task at this preliminary stage of the proceedings to assess whether it is justifiable. 3 At the outset of the proceedings concerning the pleadings in this matter, I disclosed in open court that I had acted for the journalist who had written the articles, Mr Barry, in relation to a dispute that he had with the Australian Broadcasting Commission and had argued, on his behalf, a constitutional question as to whether the relevant federal legislation constituting the ABC excluded the operation of State unfair contract laws. The result of that litigation is reported in Barry v Australian Broadcasting Corporation (2002) 112 IR 33. However, no party had any objection to my hearing the adjudication of these pleading questions in relation to the defamation action brought by the plaintiff. 4 Section 7A of the Defamation Act 1974 (NSW), which was enacted in 1994, reflects a bi-furcated role between the judge and the jury in relation to defamation actions in this jurisdiction. The section provides that the court (that is, the judge) 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. The section further provides that if the court determines that the matter is reasonably capable of carrying the imputation pleaded by the plaintiff and that the imputation is reasonably capable of bearing a defamatory meaning it is for the jury to determine whether the matter complained of carries the imputation and, if it does, whether the imputation is defamatory. Following adjudication by the jury, it then falls to the judge (and not the jury) to determine whether a defence, for example, truth, has been established and to determine the amount of damages. This innovation has been somewhat controversial and some commentators have suggested that questions such as truth of the allegation are quintessentially jury questions whereas the question as to whether the imputation arises from the publication is something that could be determined more expeditiously and appropriately by the judge. It is not for me to express any views as to the propriety of this regime because the Parliament of NSW has spoken on these matters and there is enacted this distinction in relation to the functions of the judge and the jury in defamation proceedings. 5 Thus, my role is a very limited one at this early stage of the proceedings, namely to determine the question as to whether the publication is reasonably capable of carrying the imputation pleaded by the plaintiff and, as an ancillary matter, whether the pleadings are overlapping in the sense as to whether they contain matters which could be characterised as a "rhetorical flourish" and are therefore inappropriate to go forward to the jury. 6 As the Court of Appeal held in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, the task for a judge at this preliminary stage is to decide whether there is a case to go to the jury, that is to say whether it is open to the jury in a particular case to find that the ordinary reasonable reader, listener or viewer would have understood the matter complained of in the defamatory sense pleaded. Questions may arise, in due course, as to whether the disparagement has injured the plaintiff's reputation, where the words tend to lower him in the estimation of "right thinking" people. If reasonable persons may differ as to the conclusion to be drawn, the question of whether the imputation was in fact conveyed must be left to the jury. 7 It is well established that the ordinary reasonable reader is a person who is not morbid and avid for scandal: Lewis v Daily Telegraph Ltd [1964] AC 234 at 260 per Lord Reid. General community standards are to be applied (that is, the litmus test is the ordinary reasonable member of the public): Reader's Digest Services Pty Ltd and Anor v Lamb (1982) 150 CLR 500 at 507 per Brennan J with whom Gibbs CJ, Stephen, Murphy and Wilson JJ agreed. 8 The provenance of the notion that the ordinary reasonable reader does not include those with "morbid" state of minds lies in Irish cases. In 1910, Lord O'Brien LCJ was considering a libel action by Mr Keogh who was applying to be admitted as a dental student at a Dublin hospital. His Lordship held that "mere flimsy, elusive, morbid suspicions should not be permitted to form a ground of decision": The King (Kate Donohue and ors) v The Justices of County Cork [1910] 2 IR 271 at 276 with Madden and Wright JJ concurring. 9 It is a well established principle in the law of defamation that a party may apply to a judge for an order determining whether or not the words complained of are capable of bearing a particular meaning or meanings attributed to them: JCC Gatley, Gatley on Libel and Slander (London: Sweet & Maxwell, 10th edn, 2004) at [26.24]. The pleading of an innuendo must be supported by something other than the pleader's ingenuity if it is to avoid being struck out: Gately at [26.22]. Similarly, in the United States of America a dismissal or demurrer will be granted if the statement at bar is not capable of bearing a defamatory meaning: RD Sack & SS Baron, Libel, Slander and Related Problems (New York City: Practising Law Institute, 2nd edn, 1994) at 773. 10 See, more generally, as to the inherent powers of a court to strike out pleadings, Carpenters' Investment Trading Co Ltd v Commonwealth (1952) 69 WN (NSW) 175 per Kinsella J cited by Hunt J in Whatman & Anor v John Fairfax & Sons Ltd (unreported, 20 February 1980). Hunt J said in Whatman: It is the trial judge's duty to rule whether each of the imputations pleaded by the plaintiff is capable of being conveyed by the matter complained of and whether it is capable of defaming the plaintiff: Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 at 742. 11 Then, in a subsequent decision in the same year, Lord O'Brien referred to a person reading the alleged libel as being a "reasonable, fair minded man (sic)", as distinct from someone with a "morbid or suspicious mind": Keogh v The Incorporated Dental Hospital of Ireland [1910] 2 IR 577 at 586. Dodd J concurred (at 589) for the reasons given by Lord O'Brien LCJ, although Madden J (at 857) was somewhat more ambiguous. 12 What are the principles to be applied to these pleading questions? In Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669, Hutley JA advanced the proposition that it was not a sufficient basis to deny the jury from looking at the matter that the pleadings were cast in the passive voice. His Honour held at 671 that this is not a valid reason to strike out the impugned paragraph in the Statement of Claim in that the pleader can choose his own way to formulate the imputation, and that "he should not be put in a straitjacket". However, his Honour qualified that proposition by saying that where the passive voice is used in connection with accusations, it is necessary to specify the accuser. Glass JA said at 679 that: "without identification of the source the capacity of the imputation to defame cannot be judged". I refer also to the observation of Priestly JA at 680 to the effect that the absence of any allegation as to the identity of the accuser leaves the imputation in the position that they may just well have been made by a completely irresponsible person as by a responsible one. 13 More relevant for present purposes is the judgment of an experienced defamation judge. Hunt J in Morris v Newcastle Newspapers Pty Ltd (1995) 1 NSWLR 260 at 270–273 had to consider an imputation pleaded that the plaintiff was not a fit and proper person to be a member of the Federal Parliament. His Honour recorded that the plaintiff conceded that this part of the pleading was intended to be no more than a "rhetorical flourish". He said: he did not seek to demonstrate that it differed in substance from imputation (b), in so far as that imputation is to be amended and based upon the suggestion that the plaintiff had abused his position as a Federal Member. A rhetorical imputation is not in general different in substance from the more precise imputation which inevitably accompanies it 14 His Honour referred to other cases in which the use of rhetorical innuendos had been criticised in the English courts. Accordingly, his Honour struck out the particular imputation. 15 In the course of argument, Mr Evatt (for the plaintiff) described the journalism which is the subject of the pleaded critique as Orwellian, referring to the 1949 novel, "Nineteen Eighty-Four", written by George Orwell (Eric Blair). Mr Blackburn SC for the defendant suggested that the book contained a character based on the Soviet dissident, Leon Trotsky. I demurred, suggesting that he had in mind Orwell's 1945 work, "Animal Farm". In fact, the defendant's counsel was quite correct. As the introduction to the Penguin 1989 edition of the former work points out, the opposition to "Big Brother" was led by the "Trotsky-like Emmanuel Goldstein" resulting in the Brotherhood (the opponents of totalitarianism) being destroyed by arrest, interrogation, betrayal and liquidation. THE ARTICLES COMPLAINED OF 16 The first article complained of, entitled "Lucky Jim", was published in the "Good Weekend" magazine, in the Saturday or week-end edition of the Sydney Morning Herald, published by the defendant on 10 August 2002. It is a lengthy piece going over several pages and includes a large photograph of a man who, it is said, is the plaintiff, in addition to further photographs throughout the article. 17 The next article was published in a regular column in the same edition of the newspaper called 'Sauce', also on 10 August 2002. The article, at page 24, is entitled "Big Jim snaps after not-so-happy snaps". It is accompanied by a string of photographs of, it is said, the plaintiff, set out in what looks like a reel of film. 18 The final article complained of is entitled "Repo man hits the big man where it hurts". It, too, was published in 'Sauce' in the Weekend Edition of the Sydney Morning Herald at page 24 on 24-25 August 2002. It contains a photograph, again, of the plaintiff, and what appears to be a portrayal of a car being towed away. IMPUTATIONS 19 The plaintiff pleads the following imputations (as amended): First Matter Complained Of – Good Weekend Article of 10 August 2002 (a) The plaintiff does business by intimidation (front page of the magazine). (b) The plaintiff has ripped off people (words next to photograph of the plaintiff on the first page of the article). (c) The plaintiff unlawfully manages companies when he has been disqualified as a company director (paragraph 14). [The paragraphs referred to hereafter are those handwritten on the publications tendered in these interlocutory proceedings.] (d) The plaintiff was a friend and business associate of one of Sydney's most notorious underworld figures (3, 31, 95 and 99). (e) The plaintiff proposed to give alibi evidence to the NSW Supreme Court which he knew was false (4). (f) (i) The plaintiff threatened to kill Paul Barry (6, 7 and 8). (ii) The plaintiff threatened to injure Paul Barry (6, 7 and 8). (g) (i) The plaintiff threatened a former business partner (Brad King) with murder (9). (ii) The plaintiff threatened a former business partner (Brad King) with injury (9). (h) (i) The plaintiff threatened former partner Tony Maiolo with injury (10 and 32). (ii) The plaintiff threatened former partner Tony Maiolo with death (10 and 32). (i) The plaintiff is an absolute villain (11). (j) The plaintiff is dishonest (13, 26-35, 62, 77). (k) The plaintiff has deliberately crashed more than half a dozen companies leaving unpaid debts of many millions of dollars (13). (l) The plaintiff cheats creditors by placing his motor vehicles in companies or family trusts (19). (m) The plaintiff cheats creditors (20). (n) The plaintiff fraudulently owned motor vehicles (20). (o) The plaintiff is a white collar criminal (25). (p) The plaintiff deceived Magistrates (25). (q) The plaintiff flouts the law (25 and ors). (r) The plaintiff is a cheat (26-30, 32, 40-42, 44, 45, 56, 59-61). (s) (i) The plaintiff threatened to kill Mr Young and his children (28). (ii) The plaintiff threatened to injure Mr Young and his children (28). (t) (i) The plaintiff threatened a Sydney contractor with death (29). (ii) The plaintiff threatened a Sydney contractor with injury (29). (u) The plaintiff intimidated and scared creditors who became too afraid to collect money from him (30). (v) The plaintiff caused four companies which owed Tony Maiolo money to go bust so that Mr Maiolo could not receive the monies to which he was entitled (32). (w) The plaintiff deceived Sydney's top law firm (Allen Allen & Hemsley) (33). (x) The plaintiff cheated Ivan Markich by giving him worthless guarantees (34). (y) The plaintiff swindles unsuspecting borrowers by taking large fees in order to arrange a loan and then not providing the loan (40). (z) The plaintiff deceived his own mother (39). (aa) The plaintiff lied to Paul Barry about the status of Australian Credit Corporation (52-55). (ab) (ii) The plaintiff cheated the Australian Tax Office by keeping group tax payments and not paying the tax (56). (ac) The plaintiff is a conman (56-57). (ad) The plaintiff swindled his fiancé of $21,000 (66, 67 and 76). (ae) The plaintiff was an arsonist (64-78). (af) The plaintiff caused his properties to be destroyed by fire in order to collect insurance (64-80). (ag) The plaintiff is reasonably suspected by Max Gibson's father of murdering his son (Max Gibson) (88-89). (ah) The plaintiff attempted to bribe Paul Barry (100-102). (ai) The plaintiff is a rogue (whole article). (aj) The plaintiff is a thug (whole article). (ak) The plaintiff is a contemptible swindler (whole of article). (al) The plaintiff is so untrustworthy that no one should do business with him (whole of article). (am) (ii) The plaintiff deserves to be in gaol (whole of article). Second Matter Complained Of – Sydney Morning Herald Article of 10 August 2002 (a) The plaintiff is a tricky entrepreneur (paragraph 2). (b) The plaintiff tried to bribe Paul Barry by offering to pay him $80,000 to write his biography instead of writing a nasty and defamatory story about him for the "Good Weekend" magazine (3). (To support this imputation the plaintiff will rely on the natural and ordinary meaning and on the extrinsic facts that readers of the material complained of knew that Paul Barry had written a defamatory article about the plaintiff in the "Good Weekend" magazine which appeared in the same edition of the Sydney Morning Herald as the material complained of.) (c) The plaintiff behaved in a loutish manner by taking Dean Sewell's car keys and throwing them down the drain (5, 6, 7 and 8). (d) The plaintiff threatened Dean Sewell with injury (8). Third Matter Complained Of – Sydney Morning Herald Article of 24-25 August 2002 (a) The plaintiff tried to intimidate a Repo man (paragraphs 6 and 10). (b) The plaintiff assaulted the Repo man (11). (c) The plaintiff deliberately reversed his motor vehicle into the Repo man's car (12). (d) The plaintiff did not honour his commitments to pay for motor vehicles which he owned or drove (1,2, 3, 4, 5, 14 and 15). (e) Withdrawn. (f) The plaintiff attempted to cheat finance companies who lent monies for cars which he drove (1, 2, 3, 4, 5, 14 and 15). 20 In accordance with Part 67, Rule 11 of the rules of this court, the imputations must differ in substance. The rule provides: 11 Statement of claim (1) A statement of claim shall not include any allegation that the matter complained of or its publication was false, malicious or unlawful. (2) A statement of claim: (a) shall, subject to subrule (3), specify each imputation on which the plaintiff relies, and (b) shall allege that the imputation was defamatory of the plaintiff. (3) A plaintiff shall not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same report, article, letter, note, picture, oral utterance or thing, unless the imputations differ in substance. (4), (5) (Repealed). 21 I now turn to apply the principles to the critique of the pleadings which has been advanced by senior counsel for the defendant and to determine whether the various matters pleaded should be struck out and, therefore, not put to the jury, either because the imputations are bad in form, incapable of being conveyed to the ordinary reader or constitute a "rhetorical flourish", that is, unnecessary in the light of a more specific pleading. 22 As contended by the defendant, where some imputations are not capable of being conveyed, then there should be a verdict for the defendant on those imputations and they would not go to the jury. In relation to any objections based upon form, namely that the imputation has not captured sufficiently or precisely the act or condition for which the plaintiff is contending, or whether it is merely a rhetorical flourish, in that case a verdict would not be entered for the defendant but rather there would be leave to amend so as allow the plaintiff to replead the imputations (See generally, Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158.) The defendant says that the question of form should be determined by asking the question as to whether the particular pleading would cause confusion or uncertainty in the mind of the jury as to exactly what meaning is contended for, or to put it another way, the defendant should know what it needs to prove if it sought to demonstrate the truth of that imputation. 23 It should be recorded that the defendant concedes, as I understand it, that there are aspects of the pleadings, which should go to the jury under s 7A of the Defamation Act 1974 (NSW). The debate here is (and as the defendant accepts) is that it is not an "all or nothing matter" but rather whether some particular aspects of the pleadings ought to be struck out and not put to the jury. 24 I shall deal with the first matter complained of, the Good Weekend article of 10 August 2002: Imputation (a) that the plaintiff does business by intimidation is objected to by the defendant. This does not seem to me to be a mere rhetorical flourish, but rather a substantive allegation against the plaintiff. It may be that it overlaps to some extent with subsequent contentions in the pleadings, but looking at it in isolation, it seems to me that it is something entirely appropriate to go to the jury. It alleges a particular modus operandi in relation to the plaintiff's business. It reasonably arises from the text to the effect that the plaintiff is said to have asserted, "I know where you live" and that this is the new way to do business. Mr Evatt asserts that this expression is "accepted slang" for "I will cause you and your family injury, if not worse". In other words the test indicates an element of threat or menace. Mr Evatt suggested in his argument that the expression came from the Godfather movie, however, research shows that the expression is much more ancient and has a Biblical provenance. I know thy works, and where thou dwellest, even where Satan's seat is: and thou holdest fast my name, and hast not denied my faith, even in those days wherein Antipas was my faithful martyr, who was slain among you, where Satan dwelleth (Revelation 2:13, Kings James Version); and I know where you live – where Satan has his throne. Yet you remain true to my name. You did not renounce your faith in me, even in the days of Antipas, my faithful witness, who was put to death in your city – where Satan lives. (Revelation 2:13, New International Version). 25 I accept the submissions of the plaintiff that this imputation arises "straight out of the article". It matters not that other more precise imputations allege that the plaintiff intended to kill specified persons. There is a separateness of meaning and substance conveyed by this imputation namely that the new way to do business is by intimidation. I cannot accept the submission that later imputations alleged, for example in (u), to the effect that the plaintiff intimidated and scared creditors who became too afraid to collect money from him do not differ from the more general allegation that the plaintiff does business by intimidation. In my view, there is a qualitative difference between imputation (a) and imputation (u) in the sense that one is an allegation about a general method of doing business, and the second alleges the intimidation and scaring of creditors who became too afraid to collect money from him. There are a number of avenues of doing business by intimidation, which do not necessarily involve the scaring of particular creditors. In my view, the difference in meaning and effect allows both (a) and (u) to be pleaded and go to the jury. 26 Then the defendant directs attention to imputation (b) to the effect that the plaintiff has "ripped off people". It is said that this does not differ from other imputations arising from the publication that the plaintiff cheats creditors. I think that it does. The imputation contemplates the "ripping off" of more than creditors. It contemplates an exploitation of members of the community generally. Therefore, I would not strike out (b). It does not seem to me to be correct as the defendant submits that the defendant, in answering an allegation that the plaintiff has ripped off people and a subsequent allegation that the plaintiff "cheated creditors", the defendant is required to prove "exactly the same matters". In my view, there is a discernible difference between the imputations as pleaded. 27 Then the defendant submits that a number of imputations do not differ from the imputation (b) to the effect that the plaintiff has ripped off people. These imputations include the allegation that the plaintiff is a "conman", is a contemptible swindler or cheats creditors. The defendant says that it is relevant as to what "conman" means. The defendant accepts that that word is capable of a range of meanings. I do not accept the submission of the defendant that to allege that a person is a conman necessarily means or includes that he ripped people off for their money, was a contemptible swindler or cheats creditors. A person can "con" others for all kinds of purposes and with a view to different benefits, not necessarily monetary. 28 The next objection is as to imputation (c) to the effect that the plaintiff illegally managed companies when he has been disqualified as a company director. The defendant says that it is not "entirely clear" what meanings are being contended for in the sense that the word "illegally" has been used. That word is not used in the article and, it is said, there is vagueness about the pleaded imputation. It may be that "illegally" might be taken by the jury to mean a breach of the criminal law as distinct from some non-criminal breach of the corporations law, however, the plaintiff has accepted that the word "unlawfully" should be substituted in lieu of the word "illegally", and leave to amend has been given in that respect.. I do not think that the pleading is sufficiently ambiguous or vague as to justify it being struck at this stage of the proceedings. 29 Imputation (e) is objected to. This refers to an alleged proposal on the part of the plaintiff to give false alibi evidence to a court. It is said that this is ambiguous, because it does not specify whether it is said that the defendant has knowingly proposed to give evidence he knows was false. I accede to the defendant's submission that it is not clear whether the meaning contended is whether the plaintiff "knowingly" proposed to give false evidence. Indeed the plaintiff has agreed to the propositions that the word "knowingly" should be inserted and leave to amend is granted in that respect. However, despite this concession the defendant persists with the argument that the innuendo is not conveyed by the article. In my opinion, the use of the sarcastic expression "Oh yes" in the very next paragraph renders this point as appropriate for determination by the jury. 30 Then there is an objection to imputations (f), (g) and (h). They all refer to allegations that the plaintiff threatened to kill and/or injure specified persons. Whereas the defendant says that they are all "peas in a pod" it seems to me that the threat of injury and kill are separate concepts and that different individuals are specified in the paragraphs complained of. As Mr Evatt colourfully says "I would rather be injured than killed if I had the choice". Accordingly, I decline to strike these pleadings out. 31 The next objection is in relation to imputation (i) where it is said that the plaintiff is "an absolute villain". These are the words actually used in the article. Hence, the defendant correctly concedes that this is not an objection based on capacity, and that the innuendo is capable of being conveyed. The complaint is that it is another attempt to include as many imputations from the article as is possible, and that this imputation does not differ "in substance", from the other imputations already contained in the matter complained. I disagree. I think that one can be a "conman" without being an "absolute villain". One can be a "thug" without being an absolute villain. Perhaps the distinctions are subtle but they are there. One can be a robber without being an "absolute villain". One can be a villain without being a robber. Thus, as a matter of language, appropriate distinctions can be drawn, which means that the pleadings do not in any absolute or comprehensive way overlap or constitute unnecessary pleadings. Another example is that one could be a "rogue" without being an absolute villain. Sometimes the term "rogue" is used in a reasonably benign sense, such as reference to an "amiable rogue". The plaintiff refers to the Macquarie Dictionary definition as including "a wicked person": A Delbridge, JRL Bernard, D Blair, S Butler, P Peters & C Yallop eds, The Macquarie Dictionary (North Ryde, NSW: The Macquarie Library, 3rd edn, 2001) at 1842. I do not accept the submission of the defendant that "it all means the same thing". 32 As I understood the oral submissions of the defendant, it was conceded that the pleading as to the plaintiff being "dishonest" was distinguishable from other imputations as to whether he was a rogue or a villain. See Whatman & Anor v John Fairfax & Sons Ltd (unreported, 20 February 1980). 33 As to imputation (k), the word "deliberately" is used to qualify the concept that the plaintiff "crashed…various companies leaving unpaid debts". That word is not used in the text. Yet it seems to me at least arguable and that a jury could find such an inference lurking in the words used, and so I would not strike out the pleading. 34 Next, an objection is taken to imputation (l) to the effect that the plaintiff "cheats creditors" by using motor vehicles in a specified way. It is said that that does not differ from the more general pleading or imputation of (m) to the effect that the plaintiff cheats creditors and/or from imputation (r) that the plaintiff is a cheat. I agree with the submissions of the defendant that the general imputation in (m), to the effect that the plaintiff cheats creditors comprehends innuendo (l) and that (l) is merely a particularisation of the more general pleading. Hence I would strike out innuendo (l) whilst recognising that it would be open to the plaintiff to call evidence so as to particularise the alleged method of cheating creditors in relation to the placing of motor vehicles in companies or family trusts. However, I take the view that innuendo (r) is in a different category in that the more general allegation that the plaintiff is "a cheat", is not confined to the "cheating of creditors" and is reasonably open to the plaintiff to put to the jury. 35 As to innuendo (n) to the effect that the plaintiff fraudulently owned motor vehicles, I agree with the submissions of the defendant that it is "almost meaningless". This is not based directly upon words taken from the article. There is a question of whether one can fraudulently "own" anything. I would strike this innuendo out, except that I would give leave to replead the allegation if the plaintiff so chooses. ( I note that the article indicates some element of oddity about the fact that during the bankruptcy period the plaintiff still has a Rolls Royce, being an expensive car). The difficulty is whether that amounts to "fraudulently owning". That is one reason why I say it needs to be repleaded if the plaintiff wants to pursue this particular issue. 36 The next objection is to imputation (o) to the effect that the plaintiff is a "white collar criminal". The defendant says that if this means that he is a fraud, embezzler or dishonest businessman or has swindled people that it does not differ in substance from all of the imputations set out elsewhere in the pleadings. I agree, and would strike out this imputation as being an overlap with other alleged imputations and/or a rhetorical flourish. My decision is fortified by the submission that it is ambiguous in the sense that it may mean that the plaintiff has actually been convicted of "white collar" criminal offences or on the other hand it may simply mean that he has been guilty of the category of fraud or embezzlement in the course of business that it is otherwise alleged. 37 The next objection is to imputation (p) to the effect that the plaintiff deceived magistrates. The defendant says that this can only mean that it is alleged that magistrates are gullible, that the plaintiff was charming and had expensive lawyers and could therefore get out of difficult situations before the courts. Paragraph 25 of the relevant article begins with an interrogative: "how does he get away with it?". It then adverts to charm, nerve and expensive lawyers, the gullibility of magistrates and the laxity of the legal system. In my view, the imputation is capable of being conveyed to the effect that by use of these devices the plaintiff has deceived magistrates and thus gets out of gaol. 38 Imputation (q) is objected to. It alleges that the imputation arises that the plaintiff flouts the law. If I had allowed the imputation that the plaintiff is a white collar criminal I might have taken a different view of this imputation, but since the earlier formulation has been disallowed, I would regard (q) as being conceptually distinct from other allegations. For example, cheating creditors may not necessarily or inevitably be flouting the law. There are different shades of meaning here and I rule that there is something more than a rhetorical flourish which captures an idea, perhaps marginally, different and distinct from other alleged imputations. 39 Imputation (r) is challenged which asserts the imputation that the plaintiff is a cheat. It is said that it does not differ in substance from imputation (m) to the effect that the plaintiff cheats creditors. However, one can cheat people generally without cheating the specified class of creditors. There may be some area of overlapping. However, the allegations in the article are such a level of generality that I think that the innuendo of being a cheat does reasonably arise from the text. For example, the allegation that persons were promised multi-million dollar loans, yet got none of their money, might not strictly refer to creditors. On fine balance, I would allow this imputation to go to the jury. 40 Imputation (s) is another example of an alleged imputation that the plaintiff threatened to kill and/or injure a specified person and his children. Different persons are specified from those earlier dealt with. I regard this imputation as not merely a duplication of earlier pleadings and would permit this matter to go to the jury. 41 As to imputation (t), this again involves an alleged threat to a Sydney contractor with death or injury but it is said that when the material is examined it is not capable of being interpreted as a death threat. The defendant accepts that there is an alleged threat there, but that death is another matter altogether. The allegation that the article conveys the meaning of injury or severe injury is accepted, but the pleading of death is objected to. It all depends upon the quoted words, which contain an increasingly well-known expression: I know where you live. How about if I come down with a dozen of my mates, and after the visit I want to know whether you are able to think about what you're going to do. 42 I agree with the submission of the defendant that the threat of death does not arise, however the threat of injury or severe injuries clearly does. It follows that I would not allow innuendo (t)(i) to go to the jury but would allow (t)(ii) to be put to the jury. 43 In relation to imputation (u) the defendant says that the innuendo that the plaintiff intimidated and scared creditors who became too afraid to collect money from him merely duplicates earlier imputations. The defendant says that it does not differ in substance from a number of the other imputations that have been pleaded. I agree, and that imputation will be struck out. 44 As to imputation (v) to the effect that the plaintiff caused four companies which owed a specified person money to "go bust" so that that person could not receive the money to which he is entitled, the defendant says that it is not capable of arising. However, I think that the text of paragraph 32 of the relevant article does reasonably give rise to this innuendo. It refers to monies said to be owing for work on five "Byrnes sites", and that the individual was still alive. The article says "sadly however, [the individual] will never collect his money". It was then said that by the time he won a judgment in 2001 his business was in the hands of a liquidator and the four "Byrnes companies" that owed him money "had gone bust". The innuendo fairly arises or, at least, a jury might reasonably so find. The question is whether the plaintiff "caused the four companies to be wound up" so that the individual could not receive the money to which he was entitled. However, the sarcasm contained in the article leads me to the conclusion that it is at least a question for the jury as to whether causality between the companies going bust and the non-payment of the money is something that can be reasonably be drawn from the article. 45 Imputation (w) asserts an innuendo that the plaintiff "deceived Sydney's top law firm". The defendant accepts that the article is describing the state of affairs whereby the firm in question obtained personal guarantees from the plaintiff when he fell behind on his bills, and that they had not made him bankrupt "presumably because they think it will be a waste of time". The defendant objects to the concept of deceit in relation to this transaction, that is to say the concept that the plaintiff "tricked" the law firm in question. So it is said that there is a higher level of meaning alleged than that which properly arises from the article and that it is therefore outside the boundaries of what is reasonable, that is what the ordinary, reasonable, fair-minded reader would be capable of getting from the article. Furthermore it is said that the imputation is one, which does not differ in substance from earlier imputations as to the relationship between the plaintiff and creditors. The defendant says that: we would say that that imputation is just a product of looking for the worst in everything. 46 I agree with that submission and would strike out this particular innuendo, but give leave to re-plead if the plaintiff is so advised. 47 Innuendo (x) pleads that the plaintiff cheated a Mr Markich by giving him worthless guarantees. It is said that there is an ambiguity in the use of the word "cheated", one meaning being colloquial and one more exact. The defendant inquires as to in what sense the plaintiff means it: Is it a case of conscious swindling or does it simply mean someone "lost out"? There is always an element of ambiguity in the use of ordinary English words, but I think that this is quintessentially a jury question and I would leave this imputation to the jury for determination. The defendant understands this imputation as intended to convey the more serious kind of cheating, that is, knowingly conscious fraud and it is said that that is a meaning, which is not capable of being conveyed. However, in my view, the allegations in the article that the plaintiff gave "personal guarantees", that there was a judgment against the plaintiff in 1997, that the plaintiff "held things up" for four years by legal challenges and has been "dodging the sheriffs ever since" and that then the plaintiff insisted he owned nothing in the house does mean that personal guarantees given were arguably "worthless" and that therefore Mr Markich, arguably, was cheated. 48 As to innuendo (y) which speaks of the plaintiff swindling unsuspecting borrowers by taking large fees in order to arrange a loan and then not providing the loan, it is said that this does not differ in substance from earlier innuendos pleaded. In particular, the defendant relies upon earlier pleadings that the plaintiff was a contemptible swindler and a conman. However, it seems to me that this particular allegation descends to a degree of particularity which distinguishes it from the more general and sweeping allegations earlier made and that it cannot be stigmatised as a mere rhetorical flourish. Although the defendant says that this imputation is not capable of arising from the publication, the express reference to the plaintiff taking "large fees from unsuspecting borrowers – without providing a loan" provides an adequate basis for the innuendo to arise from the article. 49 As to imputation (z), that the plaintiff deceived his own mother, it is clear that the article alleges that Big Jim's mum had signed personal guarantees, nearly lost her house in 1991, was pursued for a debt of $1 million that Jim owed to Custom Credit, had told the court that she had simply signed what had been in front of her, inquired of her son whether she would get into any trouble in relation to the guarantee, told her son that there is no way that she could pay for this, and that he said to her on each occasion the question was posed, "you've got nothing to worry about". It seems to me plain that the text is capable of conveying the imputation. 50 In relation to imputation (aa) to the effect that the plaintiff lied to Mr Barry about the status of Australian Credit Corporation, apparently a merchant bank, various words in the publication seem to me to sustain the possibility that the innuendo reasonably arises: the mortgage business is, Mr Byrnes asserted, the third largest home loan provider in NSW – "or so he said"; despite paintings on the wall and furniture, the enterprise was "hardly booming"; blondes at reception seemed to be there "for decoration"; Byrnes "boasted" to a Fairfax newspaper that the undertaking was going "great guns". In my view, the text reasonably raises a possible innuendo which should go to the jury. 51 The next innuendo is (ab). This concerns the supposed defrauding by the plaintiff of employees by keeping group tax payments and not paying the tax, and then, secondly, cheating the Australian Tax Office by keeping the group payments and not paying the tax. Counsel for the plaintiff sought to put these allegations in the alternative. However, as I read the record of oral argument, this proposition although it seems sensible on the face of things was not embraced by the defendant. The allegation in the article certainly is that because the plaintiff "flushed" a company "down the plughole", taxpayers lost $60,000 by way of group tax that the plaintiff had "pocketed from employees but not passed on". In my view, (i) does not properly arise or is not adequately conveyed from the text (ultimately, this was conceded by counsel for the plaintiff), but (ii) certainly is. It is surprising that the defendant was not prepared to accept that proposition. As a matter of common knowledge it is the Australian Tax Office which is "cheated" by the non-payment by an employer of group tax payments and that meaning is clearly conveyed by the article in question. Accordingly, I would not allow (i), but would allow (ii) to go to the jury. 52 Innuendo (ac), to the effect that the plaintiff is a conman, is a matter to which I have, generally speaking, already dealt with. I regard it as repetitious or overlapping and in the category of a rhetorical flourish. I decline to allow innuendo (ac) to go to the jury. 53 Innuendo (ad) concerns the alleged swindling of the plaintiff's fiancée. This seems to me to be clearly separate and apart from anything else pleaded, and I allow it. 54 Imputation (ae) is to the effect that the plaintiff was an arsonist. It might mean that the plaintiff lit fires himself, or alternatively caused other people to light the fires. But in any event, the defendant says that that is not a meaning which is capable of being conveyed, is the product of a morbid suspicion and that there is no adequate basis for the reader to think that the plaintiff had in fact lit the fires or caused them to be lit. The article in question adverts to supposed facts that: ¤ there is a quiet leafy street in Woollahra where "nothing ever happens" ¤ But on a hot Sunday afternoon in February 1997 there was a massive explosion ¤ destruction occurred of an empty house next to the Turkish consulate ¤ that house had had its roof blown off, its walls down and that there was smoke, dust and fire ¤ although the police initially feared a terrorist attack, it was then concluded that the cottage was "the target" ¤ the site had just been sold for redevelopment to one of the plaintiff's companies due to handover the $1.9 million purchase price a couple of days later ¤ detectives discovered that this was not the first of the plaintiff's properties to go up in smoke ¤ two previous fires had been investigated by his insurers ¤ the plaintiff had taken out a policy on this house, even though he never actually made a claim. 55 It seems to me that this script is laden with sarcasm and possibility and that the innuendo is at least possible or reasonably available that the plaintiff was an arsonist. It does not require any morbid suspicion. A reasonable reader would think that something was awry. I would allow this part of the pleading to go to the jury. 56 In innuendo (af) it is said that the meaning arises that the plaintiff caused his properties to be destroyed by fire in order to collect insurance. The defendant rightly concedes that there is a difference in principle between saying that a person is an arsonist (who may get some particular pleasure out of lighting fires) and on the other hand an allegation that a person has caused properties to be destroyed in order to collect insurance payments. There is, in my view, a relevant distinction to be drawn in the context of this article and more generally. The innuendo reasonably arises and that this particular pleading does not involve an impermissible overlap with the immediately preceding innuendo. 57 Innuendo (ag) asserts that it arises from the article, that the plaintiff is "reasonably" suspected by Max Gibson's father of murdering his son. The defendant submits that even if the court were to think that it is capable of that meaning, the article contains nothing which would be capable of conveying an imputation so high, that is that there was a "reasonable" suspicion on the part of the father that his son had been murdered by the plaintiff. The article tells us that: ¤ in March 2001 Max Gibson's son (Max) was found dead in a stormwater drain in Marrickville ¤ although initially treated as murder it became clear that there was no evidence of foul play ¤ Mr Gibson, had apparently, according to the article, died of a heroin overdose ¤ but Max Gibson's father was "not convinced" ¤ Max Gibson's father told the Sun-Herald that there had to be more behind it, and that relatives had been threatened days after the fire. 58 Although it is said that whether the plaintiff's testimony would have got Gibson "off the hook we will never know" I am unable to see in the paragraph specified by the plaintiff anything that identifies the plaintiff as being reasonably suspected by the father of murdering his son. In particular, there is nothing that I can see that sustains the pleading that there is a reasonable suspicion on the part of the father that the plaintiff murdered the son. As the defendant puts, the highest the material in the article goes is that Max Gibson's father was "not convinced". He says that there has got more behind it. I do not think this is sufficient to sustain an innuendo of this gravity and I think that there is also some substance in the contention of the defendant to the effect that if some meaning is conveyed that the plaintiff was suspected by Max Gibson's father of murdering his son, it does not necessarily convey a defamatory meaning because we do not know whether the father is being sensible or rational in having suspicions of that kind. The defendant submits: the imputation doesn't attribute suspicion to any figure which identifiably gives it a defamatory sting or charge. 59 In Rivkin v John Fairfax Publications Pty Ltd (unreported, 18 September 1998), Levine J had to consider an imputation that the plaintiff was suspected by the father of a deceased person of having being involved in a murder, and that that imputation was allowed. However, the defendant distinguishes that case on the basis that there was much in the article about the father of the late person and that it was on that basis that his Honour concluded that the jury might be entitled to regard an allegation in that context as being defamatory. In the circumstances, and having regard to the text of this article, I do not regard this particular imputation as reasonably arising and decline to allow that to go to the jury. However, as an alternative submission, the plaintiff seeks to press the innuendo with the deletion of the word "reasonably". I give leave to amend in that respect and allow the general question of "suspicion" to go to the jury. 60 Imputation (ah) refers to the plaintiff's attempt to bribe Paul Barry, the journalist who wrote the article in question. The material obviously involves a threat of defamation action against the journalist. But it goes further. There is a suggestion, incorporated in the article, that the plaintiff put a proposition that the journalist should write his "authorised biography" in lieu of the article and that there would be a payment of $80,000. It is said that the plaintiff contends that this was not a bribe "it's just a way of me having some control". I think the allegation of attempted bribery reasonably arises from the text of the article and I would decline to strike out that innuendo. 61 Innuendo (ai) says that it arises from the whole article that there is a suggestion that the plaintiff is a "rogue". First, the defendant says that this term carries a wide range of meanings, from the affectionate to the villainous. Sometimes people are referred to as a "likeable rogue". Secondly the defendant says that this pleading does not differ in substance from earlier alleged imputations and is merely rhetorical, it adds nothing and does not, in substance, differ from a number of the imputations that have gone before. I agree. I decline to allow imputation (ai). 62 Imputation (aj) suggests that it arises from the publication that the plaintiff is "a thug" and the whole article is relied upon. I accept the submissions of the defendant that this is merely a summary of the imputations that have gone before which, in large part, I have allowed to go to the jury and which include allegations of threatening, intimidation, threatening physical violence and the like. Similarly, it seems to me that the pleaded allegation that the plaintiff is a "contemptible swindler" is merely an attempt to summarise much of the material that is otherwise been allowed, that is, a distillation of the imputations that have gone before it. It does not seem to differ from allegations such as the plaintiff is a conman, that he deceived his own mother, swindled his fiancée, and is otherwise a cheat. 63 On the other hand, the imputation contained in (al) to the effect that the plaintiff is so untrustworthy that no-one should do business with him, which is said to arise from the whole of the article, seems to me to have some conceptual differences with earlier pleaded imputations, is not merely a rhetorical flourish, and in my opinion should go to the jury. 64 Imputation (am) suggests, on the basis of the whole article, that there is an innuendo that the plaintiff either should be or deserves to be in gaol. Counsel for the plaintiff concedes that these are alternatives and has deleted (am)(i). On this basis, the asserted innuendo should be put to the jury. 65 I now turn to the second matter complained of, that is the "Sauce" column published on the same day, 10 August 2002. Paragraph (a) in relation to the second matter pleads an innuendo that the plaintiff is "a deceitful entrepreneur". Now certainly this article describes the plaintiff as a "tricky" entrepreneur. The defendant says that the particular imputation as pleaded is not capable of arising. In my opinion, for a person to be described as "tricky" does not reasonably to give rise to the view that that person is guilty of deceit, and hence I would not allow the imputation to go to the jury in its current form. I give the plaintiff leave to replead this imputation if it is so advised. In any event, I think there is substance in the defendant's submission that there is a lack of specificity as to the precise defamatory act and some consideration needs to be given by the plaintiff to clarification of that matter. As to imputation (b), I have already ruled that the allegation that the plaintiff attempted to bribe the journalist by offering to pay him the sum of $80,000 to write his biography does, I think, reasonably arise from the article and I would allow that imputation to go to the jury. 66 As to imputations (c), (d) and (e), these all arise from a discussion about the behaviour of the plaintiff in relation to a Mr Sewell in relation to his car and alleged threats and intimidation on the part of the plaintiff in relation to this individual. The defendant's submission really comes down to whether there is any distinction between threat and intimidation. In my opinion, the concepts of threat and intimidation involve a conceptual distinction and so, despite an element of overlap, both imputations could be properly propounded. Mr Evatt abandoned the intimidation allegation with respect to Mr Sewell (transcript p 52), and the pleading should be amended accordingly. 67 The third matter complained of by the plaintiff is the "Sauce" article of 24–25 August 2002. This is a short piece written by a journalist Kate McClymont concerning "our favourite property tycoon…" namely Big Jim Byrnes. The article said that Mr Byrnes had encountered "another spot of bother" and that in particular the "repo squad" had taken away one of his cars, a BMW, on a tow truck. Implication (a) in this article is to the effect that the plaintiff tried to intimidate a Repo man, an abbreviation which refers to a "repossession man". The defendant says that it is not quite sure what it means. It says that to try to intimidate someone may be defamatory or it may not defamatory. The defendant says that it is just not clear as to what is meant by the pleading. However, this seems to me quintessentially a jury question and there is sufficient in the article to allow that matter to go forward to the jury. 68 Imputation (b) – the allegation of assault of the Repo man is not objected to. 69 Imputation (c) refers to the plaintiff deliberately reversing his motor vehicle into the Repo man's car. The defendant says that this is not capable of arising from the publication. However, the article alleges that: ¤ Jimbo wrenched open the car door of the Repo man inquiring "what the hell are you doing harassing my wife and who the f… are you?' ¤ when told that there was a repossession on the order on the car, Big Jim is said to have retorted "bullshit" ¤ the discussion continued in the roadway and involved Mrs Byrnes ¤ it is then said that Big Jim "shifted gear", advised Bud the name used to refer to the Repo man to leave because there were "heavies" coming round to fix him ¤ then it is said that Byrnes grabbed the Repo agent, threw him into the road, jumped behind the wheel of the Range Rover and "finally he reversed the big four-wheel drive into the Repo man's car and roared off". To my mind, it is not far-fetched to have it argued before the jury that the reversal of the car into the Repo man's car was deliberate. The innuendo reasonably arises from the article and its context and I decline to strike it out. 70 Imputation (d) is to the effect that the plaintiff did not honour his commitments to pay for motor vehicles which he owned or drove. The defendant seeks to draw a distinction between the default of the plaintiff's companies and related entities in comparison to the plaintiff as an individual or personally not honouring his commitments over the vehicles. A consideration of the article as a whole indicates that Byrnes' cars, "his cars", were regularly repossessed. In my view, the innuendo reasonably arises from the article. In relation to innuendo (f) it is said by the defendant that the allegation that the plaintiff attempted to cheat finance companies who lent monies for cars which he drove does not differ in substance from the innuendo with which I have just dealt. I agree that there is overwhelmingly an overlap between innuendo (d) and innuendo (f) and I am of the view that the plaintiff should elect which one he wants to pursue. If innuendo (d) is persisted with I would not allow innuendo (f) to go to the jury because it is an unnecessary pleading which overcomplicates an already prolix case. 71 Mr Evatt suggested that because the first two publications were in the same newspaper, he needed to assert that the second article complained of was a "continuation" of the earlier article and that that would need "a slight amendment to the statement of claim" which would put beyond doubt the imputations. I give leave to amend the statement of claim in this respect of the plaintiff if so advised. It is clear from Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164-166 per Hunt CJ at CL (with whom Mason P and Handley JA agreed) that the role of the judge at this stage of the proceedings is to decide whether it is capable or reasonably possible for the imputations to be conveyed, and then subsequently, as to the question of facts before the jury, to determine whether they are indeed conveyed. It is not for me to decide whether they are "indeed" conveyed because the legislature leaves that to the jury. 72 In accordance with ordinary practice, those paragraphs of the pleadings which have been struck out and which are not, in accordance with my ruling, to go to the jury should be the subject of a verdict for the defendant. Those aspects of the pleadings in relation to which I have given leave to replead should be reproduced in a compendious amended statement of claim. All of the other matters, I would regard as being outstanding issues to go to the jury in due course in these proceedings. 73 To the extent that it might assist the parties in crystallising orders arising from this judgment, and subject to examining the judgment itself, it seems to me that there are two categories of decision: (1) pleadings struck out (and therefore verdict for the defendant): Paragraphs (referring to the judgment) - 34 – imputation (c) 36 – imputation (o) 42 – imputation (t)(i) 43 – imputation (u) 51 – imputation (ab)(i) 52 – imputation (ac) 61 – imputation (ai) 62 – imputation (aj) (2) pleadings with respect to which leave to re-plead is given: Paragraphs (referring to the judgment) - 28 – imputation (c) 29 – imputation (e) 35 – imputation (n) 45, 46 – imputation (w) 65 – imputation (a) (second matter) 70 – imputations (d) and (f) (second matter). 74 Finally, the question arises as to costs. In the course of argument, I expressed the prima facie view that costs should be reserved. Mr Blackburn SC informed the court that "that is not what normally happens in these applications". He referred to several permutations of the collection of the imputations. He was concerned that if his client was largely unsuccessful in relation to this preliminary skirmish then the defendant would want to address the court on the question of costs thrown away on the previous occasions, in particular, in relation to the three changes to the imputations and the changes that were made a day or two before the hearing. It is also relevant to observe that counsel for the plaintiff made a number of concessions in the course of argument before me. It is common ground that there are matters that should go to the jury. Counsel for the plaintiff says that the question of costs should await my judgment in this matter. In all of this complexity, my prima facie view remains that it is appropriate that costs be reserved, but I am open to persuasion on the matter. 75 Accordingly, after the parties have had the opportunity to consider my judgment on these matters, I would entertain any application to argue the question of costs, in the circumstances where the defendant has had a modest degree of success in excluding some of the pleaded innuendos, but where the plaintiff (albeit after a number of attempted pleadings) has been substantially successful and in the context where one simply does not know what the jury might find as to whether the innuendos do in fact arise and whether they are defamatory, and whether any defences are made out. To reiterate, there seems to be some good sense in simply reserving the costs, but I will entertain any argument on that point, keeping an open mind, after the parties have considered this judgment. 76 The plaintiff must file within fourteen days an amended statement of claim to reflect this judgment. The defendant must bring in (hopefully by consent, short minutes of order) so that the orders arising from this judgment can be finalised. 77 Liberty to apply is granted in the event that I have not dealt with some particular matter which the parties need a decision upon or whether there is some other matter which legitimately arises that needs to be attended to before these interlocutory proceedings are concluded. ********** Last Modified: 10/15/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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