New South Wales Supreme Court CITATION : Reason Wafawarova v Australian Broadcasting Corporation [2007] NSWSC 1212 HEARING DATE(S) : 10.10.07, 11.10.07 JUDGMENT DATE : 30 October 2007 JUDGMENT OF : Nicholas J DECISION : para 39 CATCHWORDS : DEFAMATION - pleadings - objections to imputations on grounds of capacity and form - principles considered LEGISLATION CITED : Uniform Civil Procedure Rules 2005 r 28.2 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 CASES CITED : John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218 Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 Robinson v Brighton [2007] NSWSC 1125 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 PARTIES : Reason Wafawarova - plaintiff Australian Broadcasting Corporation - defendant FILE NUMBER(S) : SC 20211/07 COUNSEL : R K M Rasmussen - plaintiff A T S Dawson - defendant SOLICITORS : Carters Law Firm - plaintiff Australian Broadcasting Corporation Legal Services - defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST Nicholas J 30 October 2007 20211/07 Reason Wafawarova v Australian Broadcasting Corporation JUDGMENT 1 His Honour: The plaintiff has sued the defendant for the broadcast on ABC Radio National of the radio programme "Background Briefing", on or about each of 27 and 29 May 2007. The transcript of the programme is annexure "A" to the amended statement of claim. 2 At the commencement of the hearing on 10 October 2007 counsel for the plaintiff stated that it was proposed to plead a new set of imputations in a further amended statement of claim as amendments to paras 3 and 5 of the present pleading. These imputations are set out in paras (a) to (l) inclusive in a list which became exhibit A. During submissions imputations (a), (b), (c), (j) and (k) were amended, and imputations (d) to (i) inclusive were abandoned. The imputations in their final form were set out as paras (a), (b), (c), (j), (k) and (l) in the list which became exhibit B when tendered on 11 October 2007. 3 The defendant applied to strike out the imputations in exhibit A on grounds that they were not reasonably capable of being conveyed by the matter complained of (the programme) and/or that they were defective in form, in that their sense was ambiguous and uncertain, and made submissions in support of its objections. Following the tender of exhibit "B" the defendant challenged the imputations therein listed on the same grounds. The questions raised by the objections proceeded as separate questions for decision under r 28.2. 4 It is noted that the evidence of the programme consisted of the transcript annexed to the amended statement of claim, and the court was not asked to listen to an audio recording. 5 The principles applicable to the correct approach of the court on a strike out application on a question of capacity are too well known to justify repetition. It is sufficient to refer to Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 (para 30) in which it was held that, in circumstances where reasonable persons may differ as to their understanding of the publication, the matter is one that must, in accordance with authority, be left to the jury. 6 In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, with reference to a transient publication such as a radio or television programme, Hunt, CJ at CL said (p 166): "Although (a listener or viewer of matter published in transient form) … must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article ( Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420), and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material: Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413. The trial judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed than he or she would in relation to a written document case: Brown v Australian Broadcasting Corporation (at 12-13) . " 7 The exercise of discretion in deciding whether or not an imputation should be struck out is to be undertaken with great caution. In Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 (para 6) it was said that if reasonable minds may possibly differ about whether or not the matter complained of is capable of carrying a defamatory meaning, that would be "… a strong, perhaps an insuperable, reason for not exercising the discretion to strike out". Relevantly, in Favell, Kirby, J said: "21. In considering the imputations pleaded alongside the matter complained of, it is important that courts, deciding issues such as the present, should keep in mind the practical burdens and consequences that flow from excessive refinement in such matters. They should remember that the tribunal established by law (whether a jury or a judge) to decide claims in defamation will normally have a large capacity of its own to deal with far-fetched and remote imputations in a commonsense way. It is a mistake to consider that this capacity is confined to the practice court and appellate judges, stimulated by imaginative pleaders "armed with a bank of dictionaries and a Thesaurus"." 8 Objections as to the form of an imputation require consideration of the relevant pleading principles. These principles are also well known. For the defendant to succeed it is necessary to show that the imputations fail to specify the act or condition which the plaintiff claims was attributed to him by the matter complained of. "The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends". (Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, p 155; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255, para 124.) 9 Ordinarily, the sense in which an imputation is to be understood will be clear from its terms considered with regard to the context provided by the publication. Relevantly, in John Fairfax Publications Pty Ltd v Gacic (2007) 81 ALJR 1218, Callinan, Heydon, JJ said: "194. … To say that because the words of an imputation may reasonably convey more than one defamatory meaning or impression, or that because implications, inferences and imputations suggest more than one meaning or successive meanings, they must be rejected, would be to introduce unnatural and excessive refinement to the basic factual question whether the words (or the imputation) have defamed the plaintiff. Published matter may well convey a duality of meanings and impressions, not necessarily exclusive of one another, and sometimes with one leading to another, successive, inevitable or almost inevitable one." 10 Consistently with the emphasis given in the cases to the relationship between the terms of the pleaded imputation and the matter complained of, Ipp, JA in Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175 in a passage approved of by the High Court of Australia in John Fairfax Publications Pty Ltd (2007) 81 ALJR 1218 (para 174) said: "119. … The question as to the meaning that the words convey to the ordinary person should be a simple and straightforward one, as befits a law that governs the everyday life and actions of all levels of persons in the community. The question should not be obscured by overly complex and subtle metaphysical distinctions that stand as a formidably esoteric barrier to what should be an easily comprehensible reasoning process akin to common sense." 11 It was common ground that the relevant part of the programme is that recorded in paras 1-95 inclusive of the transcript. The programme opens with the revelation that the plaintiff, who is described as a leading figure in President Mugabe's youth militia in Zimbabwe, is living in Australia. It proceeded to refer to the training programme of the National Youth Service under which young people were trained to be used for political purposes, particularly to keep Mr Mugabe and his party in power by whatever means necessary including torture, rape, murder, and arson. The plaintiff was said to be a director of the National Youth Service, responsible for the training of the youth militia to carry out violent activity. The programme reported allegations that he was a director of the National Youth Service, and a spy for the Central Intelligence Organisation, and the plaintiff's denials of those allegations. It also included an interview with one Job Sikhala who said he knew the plaintiff, and gave details of the plaintiff's activities as a supporter of Mr Mugabe's government, including as a director of training. 12 Imputation (a) is: "The plaintiff as director of training was responsible for the training programme of Zimbabwe's youth with the aim of inculcating blatantly anti democratic, racist and xenophobic attitudes." 13 Objection as to form was on grounds that the phrase "was responsible for" was imprecise in that the plaintiff's responsibility was not specified beyond the fact that he acted as a director of training; that it was unclear whether the aim referred to was the plaintiff's aim, or that of the training programme; and that it was in a "rolled-up" form by the use of the words "anti democratic, racist and xenophobic attitudes". 14 The objection is rejected. Reasonably read, the imputation meets the test of precision without the need for further specificity. Any reasonable doubt evaporates when it is read in context with the programme, particularly paras 13, 22, 46, 52, 58-63, 70, 71. The attack upon the plaintiff is generally with regard to his conduct as director of the National Youth Service in which capacity he was responsible for the training of young people. The programme plainly suggests that as such director he is accountable for the activities of those who acted in accordance with what they were trained to do. It simply means that, as director of training, the plaintiff was responsible for a training programme the aim of which was to inculcate in Zimbabwe's youth the attitudes described. 15 The "rolled-up" form objection does not survive recognition that the pleader has incorporated the adjectives as a hendiadys based on para 22 of the programme. So understood, the imputation is not confusing (Robinson v Brighton [2007] NSWSC 1125, para 21; Whelan p 157). 16 Further, I hold that the programme is reasonably capable of conveying this imputation. 17 Imputation (b) is: "The plaintiff as director of training was involved in the training of criminals to go out to commit human rights abuses." 18 Objection as to form was taken on the ground that the phrase "was involved in" was imprecise, in that the plaintiff's involvement was not specified beyond the fact that he acted as director of training. 19 That the objection is without merit should be apparent from the very words of the pleading, even without regard to the observations in Gacic referred to in paras 9 and 10 above. The conduct of the plaintiff is alleged to be his involvement as director of training in the training of criminals with the purpose that they should commit human rights abuses. The programme makes this meaning plain e.g. para 65. No further specificity is required. 20 Further, I hold that the programme is reasonably capable of conveying this imputation. 21 Imputation (c) is: "The plaintiff as director of training trained people to do abominable things and commit atrocities." 22 Objection as to form was taken to this imputation as pleaded in exhibit A para (c). I did not understand the objection to be strongly pressed after it was amended to its present form by the inclusion of the phrase "as director of training". 23 In any event, in my opinion, the meaning of the imputation is unambiguous. Having regard to the programme, particularly para 71, the plaintiff is entitled to plead as he has. 24 Further, I hold the programme is reasonably capable of conveying this imputation. 25 Imputation (j) is: "The plaintiff as director of training indoctrinated students to be violent." 26 Upon amendment to its present form, by making clear that the imputation concerned the plaintiff's conduct as director of training, the defendant's objection as to form was met. In my opinion, the meaning of this imputation is unambiguous, and no further specificity is required. Again, its sense is made clear by the words of the programme, particularly paras 22-45, 59-65, 70, 71. 27 Further, I hold that the programme is reasonably capable of conveying this imputation. 28 Imputation (k) is: "The plaintiff as director of training trained Zimbabwe's youth to murder Mugabe's political opponents." 29 As I understand it, the defendant's primary objection was as to form, in that the sense of the imputation was ambiguous and uncertain. It was put that it was open to understand the imputation to be alleging that the plaintiff, himself, was acting as a teacher in the techniques of murder. Further, it was put that an imputation so understood was incapable of being conveyed by the programme to the ordinary reasonable listener. 30 In my opinion the objection fails, as the meaning of the imputation is unambiguous and sufficiently precise. The allegation, consistently with the thrust of the programme, attacks the plaintiff in his capacity as director of training. This is to be reasonably understood to refer to his conduct as head of the National Youth Service with responsibility for controlling the activities of that body which, in this case, are said to include training Zimbabwe's youth to murder Mr Mugabe's political opponents. In my opinion, neither the terms of the imputation, nor the language of the programme, provides support for a meaning to the effect that the plaintiff himself conducted training classes as a teacher. Prima facie, at least, that activity would be inconsistent with the status he is alleged to have held, namely that of director of training. It is sufficient to refer, without elaboration, only to paras 46, 50, 52, 57, 59, 70, 71, 78, of the programme. 31 Further, I hold that the programme is reasonably capable of conveying this imputation. 32 Imputation (l) is: "The plaintiff lied when he said that he was not a spy or part of the Central Intelligence Office." 33 Objection was taken on the ground of capacity. It was put that the programme provides no support for the allegation that the plaintiff lied about being a spy or part of the Central Intelligence Office. In short, it was put that the programme is incapable of being reasonably understood to go further than to repeat Mr Sikhala's allegation, which was limited to an allegation that the plaintiff lied when he denied that he was a director of the National Youth Service. In other words, it was put that Mr Sikhala's assertion that the plaintiff was lying, when taken in context, would be understood by the ordinary reasonable listener to be directed only to the denial that he was such a director, and that there is nothing more in what Mr Sikhala said, or elsewhere in the programme, to support the imputation. 34 The defendant accepted that Mr Sikhala's words conveyed an imputation to the effect that the plaintiff lied when he said he was not a director of youth training. It was argued that such an imputation, but not the one in issue, was conveyed by para 69 which says: "It must be thoroughly investigated because no one resigns from the government. The whole country is run from Central Intelligence Office, the CIO. He pretends he has resigned but he has not resigned. He defends the government in each and every newspaper. He writes almost every week in the government mouthpiece called The Herald. That paper has been supporting the torture and also the oppression of the people of Zimbabwe. So basically, he thinks he's playing with people who do not have brains. He is lying. He is still part and parcel of the system." 35 In my opinion the objection must be rejected. Having regard to the principles to which I have referred, I find that there is sufficient material in the programme, taken as a whole, for a jury to find that a reasonable listener would conclude that the defendant is making an allegation in terms of this imputation. I am unpersuaded that the listener's impression would be confined to an allegation of lying in respect of the directorship as the defendant contended. 36 In reaching this conclusion I have taken guidance from the statements in Marsden and Favell referred to in paras 6 and 7 above. The relevant listener is taken to have listened to the programme as a whole which, in this case, includes allegations that the plaintiff was also a spy for the Central Intelligence Office, well known as a government informer, a member of the ruling party, and a conduit between the university and the government (e.g. paras 50-65). Paragraphs 66-69 provide the immediate context for Mr Sikhala's accusation that the plaintiff is lying. In para 70 reference is made to the plaintiff's denial of allegations that he was in the Central Intelligence Office, or was a member of the ruling party. 37 In my opinion, the contents of para 69 attributed to Mr Sikhala, when taken in the context of, but not limited to, the paragraphs to which I have referred, arguably provide reasonable support for the imputation pleaded. It is reasonably open to a listener whose concentration might vary from one part of the programme to another to understand Mr Sikhala's accusations "… He pretends he has resigned but he has not resigned …So basically, he thinks he's playing with people who do not have brains. He is lying. He is still part and parcel of the system." as accusing the plaintiff of lying generally in respect of denials of the jobs in government referred to, including as a spy or as part of the Central Intelligence Office. 38 Accordingly, I find that the programme is reasonably capable of conveying this imputation. Conclusion 39 (1) The defendant's application to strike out proposed imputations (a), (b), (c), (j), (k) and (l) is refused. (2) I hold that each of proposed imputations (a), (b), (c), (j), (k) and (l) is reasonably capable of being conveyed by the matter complained of, and is reasonably capable of being defamatory of the plaintiff. (3) I direct the plaintiff to file and serve a further amended statement of claim on or before 4pm 6 November 2007. (4) I stand the proceedings over to the defamation directors list 9.30am 12 November 2007 for further directions. (5) Costs are reserved, although my prima facie view is that each party should pay his/its costs. This is because, in my opinion, the defendant's objections to the imputations in exhibit A were substantially successful which lead to the amendments in exhibit B in respect of which the defendant failed. ********** 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.