Supreme Court New South Wales Medium Neutral Citation: Robbie Waterhouse v The Age Company Ltd & Ors; Robbie Waterhouse v Fairfax Media Pty Ltd & Anor; Robbie Waterhouse v Fairfax Digital Australia & New Zealand Pty Ltd & Ors [2011] NSWSC 159 Hearing dates: 07.02.11, 08.02.11, 09.02.11, 11.02.11. 07.03.11 Decision date: 17 March 2011 Before: Nicholas J Decision: Par 82 Catchwords: DEFAMATION - pleadings - imputations - questions of form and capacity - whether open to plead articles published on separate occasions as a composite DEFAMATION - parties - further proceedings against same defendants - whether proceedings in respect of same or like matter - application for dismissal under s 23 of Defamation Act 2005 - Internet publications - whether "matter" as defined in s 4 of Defamation Act incorporates mode of communication PROCEDURE - whether open to plaintiff to discontinue where proceedings impermissible under s 23 of Defamation Act - UCPR Pt 12.1 Legislation Cited: Defamation Act 2005 Fair Trading Act 1987 Trade Practices Act 1975 (Cth) Uniform Civil Procedure Rules 2005 Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Burrows v Knightley (1987) 10 NSWLR 651 Carey v ABC [2010] NSWSC 709 Buckley v The Herald and Weekly Times Pty Ltd (No. 2) [2008] VSC 475 Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, (2005) 221 ALR 186 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 Lewis v Daily Telegraph Ltd [1964] AC 234 Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 Phelps v Nationwide News Pty Ltd & Anor [2001] NSWSC 130 The Buddhist Society to Western Australia Inc v Bristile & Anor [2000] WASCA 210 Category: Interlocutory applications Parties: 10/416092 Robert (Robbie) Waterhouse - plaintiff The Age Company Ltd - first defendant Rick Feneley - second defendant Andrew Rule - third defendant John Silvester - fourth defendant 10/416107 Robert (Robbie) Waterhouse - plaintiff Fairfax Media Publications Ltd - first defendant Rick Feneley - second defendant 10/416124 Robert (Robbie) Waterhouse - plaintiff Fairfax Digital Australia and New Zealand Pty Ltd - first defendant Fairfax Media Publications Pty Ltd - second defendant - second defendant Rick Feneley - third defendant Andrew Rule - fourth defendant John Silvester - fifth defendant Representation: Counsel: C A Evatt/ R Rasmussen - plaintiff T Blackburn SC/M A Polden - defendants Solicitors: Stacks/Goudkamp - plaintiff Johnson Winter & Slattery - defendants File Number(s): 10/416092; 10/416107; 10/416124 Judgment 1In each of these three proceedings the plaintiff claims damages for the publication of defamatory matter. In each, the defendants challenge the claims on several grounds. As there was an extensive overlap of the issues for determination the proceedings were heard together. 2The proceedings in each case were commenced by a statement of claim filed on 15 December 2010. It is common ground that under the Justicelink system a number is allocated to proceedings when a statement of claim is filed. As proceedings are numbered sequentially, it follows that the higher the number allocated the later in time the proceedings were commenced. Accordingly, it was accepted that although all were commenced on the same day, proceedings no. 10/416092 were commenced first, and before, proceedings no. 10/416107 and proceedings no. 10/416124 which thus were "further defamation proceedings" within s 23 Defamation Act 2005 (the Act). 3It was also common ground that the plaintiff had commenced the later proceedings without having first obtained the leave of the court to do so. 4It is convenient to deal with each case in turn. The issues in 10/416092 5In these proceedings the plaintiff sues the first defendant as the publisher of the newspaper "The Age", and the second defendant (Feneley), a journalist, for the publication in the newspaper on 30 November 2010 of an article under the heading "The amazing claim behind Waterhouse family's long running feud" (the first "Age" article). A copy of this article with numbered paragraphs is Annexure A to the statement of claim. 6In par 4 of the statement of claim the following imputations were pleaded: "(a) The plaintiff murdered George Brown. (b) The plaintiff procured the murder of George Brown. (c) The plaintiff was an accessory to the murder of George Brown." 7The defendants applied to strike out the imputations on grounds that they were defective in form, and incapable of being conveyed by the article. 8The plaintiff also sues the first defendant as the publisher of the newspaper, and the third defendant (Rule) and the fourth defendant (Silvester), as journalists, for the publication on 4 December 2010 of an article under the heading "What odds the facts, Robbie?" (the second "Age" article). A copy of the article with numbered paragraphs is Annexure B to the statement of claim. 9In par 6 of the statement of claim imputations in the same terms as those in respect of the first Age article were pleaded. The defendants applied to strike out these imputations on grounds of form and capacity. 10The plaintiff also sues all the defendants for the publication of matter which, in par 7 of the statement of claim, was pleaded as a combination of the first Age article and the second Age article, which carried imputations in the same terms as before. 11The defendants applied to strike out the pleading in par 7 on the ground that the allegations have been pleaded contrary to principle which requires claims in respect of each publication to be pleaded separately. 12On 7 March 2011, during final submissions, senior counsel for the plaintiff sought leave to delete the claims against Feneley as pleaded in par 2, and in the particulars under par 8, of the statement of claim, and the claims against Feneley, Rule and Silvester as pleaded in par 7 thereof. As I understood there was no objection to this course I propose to grant leave, subject to any question of costs. The imputations 13The principles applicable to the correct approach of the court on the question of capacity are too well-known to justify extensive repetition. In summary, a court is required to have regard to a range of factors. It must keep in mind that a reasonable person can and does read between the lines in light of his general knowledge and experience of worldly affairs, and will draw implications much more freely than a lawyer, especially when they are derogatory. He is prone to engage in a certain amount of loose thinking. Each alleged imputation is to be considered in the context of the entire article. One must try to envisage people between those who are unusually suspicious and those who are unusually naive and see what is the most damaging meaning they would put on the words in question. The question of meaning turns on what the publication, taken as a whole, conveys to the reasonable reader, and this must always be a matter of impression. Ultimately, the question is what a jury could properly make of it. (See e.g. Lewis v Daily Telegraph Ltd [1964] AC 234, pp 258, 259, 277, 285; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186, par 17, Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254, pars 14, 15). 14In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Hunt CJ at CL said (p 165): "The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book ( Morgan v Odhams Press Ltd (at 1254, 1269)), and the less the degree of accuracy which would be expected by the reader: ibid at 1270; Steele v Mirror Newspapers Ltd (at 373). The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking: Lewis v Daily Telegraph Ltd (at 277); Morgan v Odhams Press Ltd (at 1245); Steele v Mirror Newspapers Ltd (at 373); Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641; Parker v John Fairfax & Sons Ltd (at 8). There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual: Lewis v Daily Telegraph Ltd [1963] 1 QB 340 at 374." and (p 172): "But, in the end, the test remains one of reasonableness - whether it is reasonable to hold the publisher responsible for a conclusion which is not reasonably understood to have been expressed or implied by what the publisher has said, but which the ordinary reasonable reader (or listener or viewer) has drawn for himself or herself, perhaps by having taken into account his or her own beliefs which have been excited by what was published. As I understand the law of defamation, that is fundamental to the publisher's responsibility. If the publisher does anything which makes it reasonable for him to be held responsible for something more (such as by an invitation to speculate), then he is made responsible for it." 15In John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 McHugh J said: "23 Traditionally, courts have accepted that juries are more likely to find a publication defamatory than a judge. Lord Devlin famously said: '[T]he layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.''' and Callinan J said: "187 ...It is true that an article has to be read as a whole. But that does not mean that matters that have been emphasized should be treated as if they have only the same impact or significance as matters which are treated differently. A headline, for example, expressed pithily and necessarily incompletely, but designed to catch the eye and give the reader a predisposition about what follows may well assume more importance than the latter ... The order in which matters are dealt with can be significant. The capacity of the first paragraph of an article, the "intro," to excite the reader's attention is a matter upon which editors place store. The language employed is also of relevance ... True it may be that readers may take an article or articles on impression, but the fact that they may do so is likely to have the consequence that ideas and meanings conveyed by graphic language will create the strongest impressions. Of course publishers are entitled to use colourful and seductive language, but in using it they may run the risk of seducing readers into believing only what is colourful and on occasions scandalous, rather than the facts conveyed by straight reportage. 188 ... The repetition of one person's allegations by a newspaper, particularly if accompanied by other, balanced material may not always necessarily carry as an imputation the substance of the allegations, but the fact that an apparently responsible financial and broadsheet publisher has chosen to repeat them may well give them a meaning, credibility and impact that they might not otherwise possess." 16The exercise of discretion in deciding whether or not an imputation should be struck out is to be undertaken with great caution. In Favell (par 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". Kirby J said (par 21) "(Court's) 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 common sense way". 17In Malcolm Beazley JA (Basten JA, McClellan CJ at CL agreeing) held (par 30) that in circumstances where reasonable persons may differ as to their understanding of the article, the matter is one that must, in accordance with authority, be left to the jury. 18I turn first to the first Age article. As earlier stated, the challenged imputations in par 4 are: "(a) The plaintiff murdered George Brown. (b) The plaintiff procured the murder of George Brown. (c) The plaintiff was an accessory to the murder of George Brown." 19In essence, the defendants submitted that the imputations are pitched too high in that there is no arguable support for allegations of guilt as pleaded. It was also submitted that they were defective in form in that the meaning of each was ambiguous. 20Having regard to the principles, in my opinion the article, taken as a whole, is incapable of conveying imputation 4(a). It should be struck out. I find that imputations 4(b) and 4(c) are unambiguous and sufficient in form, and reasonably capable of being conveyed. They should be left to the jury as alternatives to each other. 21The article is presented to the reader as a sensational revelation of fresh information which links the plaintiff, a prominent person in the racing industry, to the notorious murder of the horse trainer, George Brown, with whom he had been associated. The headline, the prominence and juxtaposition of the photographs of the plaintiff, David Waterhouse, George Brown, and "The Illawarra Mercury's" report of the murder, and the caption under the photographs which states "Unsolved crime: Robbie Waterhouse and David Waterhouse (above), George Brown with two of his horses and, the Illawarra Mercury's report of the racing trainer's murder in 1984" are likely to catch and excite the reader's attention and to invite the adoption of a suspicious approach to what follows. 22In its opening paragraphs the article describes as "an alarming claim" statements in a statutory declaration made by David on 9 September 1997 for the NSW Thoroughbred Racing Board to the effect that (par 5): "Robbie had confided in 1986 that he feared he would be arrested over the murder of a horse trainer whose tortured body was found in a burnt-out car." 23The article reports the plaintiff's rejection of the statement as false. Nevertheless it states that David "stands by his sworn statement" (par 8) and "... denies he fabricated this conversation as part of a long term campaign against his older brother" (par 16). It also states (par 18) that the plaintiff withdrew his application to have his ban lifted because David "... submitted his statutory declaration mentioning the Brown murder". It is therefore open to the reader to conclude that it was true that the plaintiff made the statements attributed to him, and feared that disclosure of them would be harmful to his interests. Whether or not the reader would attach weight to David's claim having regard to the reported unfavourable findings against him in the Melbourne proceedings (pars 32, 33) is a jury question. 24The reader is told that neither the newspaper nor David suggest the plaintiff was involved in the murder, and is then drawn into the body of the article in which the following details of the claim are reported (pars 11-15): "By David's account of events of November 21, 1986, Robbie had been shown a copy of that day's Daily Mirror , which led its front page with: 'Racehorse trainer murder. Bookie link - fresh lead. The Mirror did not name the bookie, but David's statutory declaration claims Robbie told his father: 'They're going to arrest me over the George Brown murder'. David had asked Robbie: "Why are you worried? This story refers to a 'leading bookie' - you don't have a licence, it can't be you.' He alleged Robbie replied: 'But when George Brown was murdered, I did have a licence and I was a leading bookie.' David: 'What would you have to do with George Brown?' Robbie: 'He was involved in a couple of ring-ins for me but don't ask me any more questions - I don't want to talk about it.'" Thus it is left open to the reader to understand that although no suggestion of involvement is made by either the newspaper or David, the plaintiff himself, in saying that he is going to be arrested over the murder, is making a positive statement that (presumably) the police believed he was involved. He is also reported as saying that he fitted the description of the bookie linked to the murder. As no doubt intended, the details of the claim may create a strong impression of involvement which would be likely to colour the reader's consumption of what follows. 25The reader is told in graphic terms of the torture and killing of Mr Brown "... because he got cold feet and refused to carry out a ring-in" (par 19) in a race at Doomben some days earlier. It is reported (par 21) that "... a couple of men had been sent to teach Brown a lesson, but they were 'high on drugs and went too far'". This information appears in context with the description of the plaintiff as the mastermind of the Fine Cotton ring-in four months later, and with the statement (par 18) about the plaintiff's withdrawal of his application to have his ban lifted. 26The reader is invited to speculate as to the identity of the person who sent the men to teach Brown a lesson as it is not stated. However, in my opinion the material to which I have referred provides ample support for the ordinary reasonable reader to conclude that person was the plaintiff, or that the plaintiff was otherwise involved in the murder of George Brown. The remainder of the article reinforces that conclusion. The statements that the plaintiff feared arrest over the trainer's murder, and that he refused to be questioned about the statutory declaration, make it open for the ordinary reasonable reader to infer the plaintiff's guilt of such conduct. Whether the involvement was direct or indirect is left unstated, but the looseness of the writer's language is such as to lead the ordinary reasonable reader to understand the article in terms of imputations 4(b) and 4(c) as pleaded. I therefore find that it is open to a jury to decide that a reasonable reader would conclude that the plaintiff had either procured the murder, or was an accessory to it. 27Mindful of the test of reasonableness, I am satisfied that imputation 4(a), that the plaintiff murdered George Brown, cannot be sustained. The article describes those who undertook the murder as "... 'a couple of men' (who) had been sent to teach Brown a lesson" (par 21). It is the only description given. The rational conclusion would be that the murderers had been engaged by someone for that purpose. In my opinion nothing in the article provides a rational basis for the inference that the plaintiff himself was one of them. I uphold the objection and rule that imputation 4(a) be struck out. 28The second Age article is alleged in par 6 of the statement of claim to convey the same imputations. 29In my opinion imputation 6(a) is not reasonably capable of being conveyed. It should be struck out. I find that imputations 6(b) and (c) are sufficient in form, and reasonably capable of being conveyed. They should be left to the jury as alternatives to each other. 30As with the other article, this one presents a story which is likely to leave the ordinary reasonable reader with the impression that the plaintiff is linked to George Brown's murder. The photographs of (presumably) the authors and of the plaintiff, the headings "The Naked City", and "What odds the facts, Robbie?", with the words "Robbie Waterhouse: from disgraced bookmaker to dapper fellow" could predispose the reader to understand what follows in a sinister light. The gruesome details are provided in the introductory paragraphs which are followed by the passage (pars 57, 58) commencing with the words "The curious would also find ..." and ending with the words "... from his murky past". This material is ample support for a reasonable reader's conclusion that the plaintiff was involved in the murder. Such a conclusion is further supported by the passage (pars 65, 66) beginning with the words "First, there is the newspaper story ..." and ending with the words "... inexplicable interstate betting plunge" and the passage (par 75) beginning with the words "The past might be a foreign country ..." and ending with the words "... got at by ruthless rorters". 31The plaintiff's involvement is left to the reader, but it is presented as a fact which would be readily revealed to anyone willing to undertake but a little searching. This impression may well be reinforced by the remainder of the article which includes the assertion that in the recent television show "Family Confidential" concerning the plaintiff's family, the ABC painted the plaintiff in an unduly benign light, and failed to deal with unfavourable aspects of his history. Furthermore, from the passages (pars 67, 68) commencing with the words "Waterhouse subsequently attempted to sue ..." and ending with the words "... a few months after Brown's death" it is put to the reader that the plaintiff dropped his claims against the newspaper because he feared that his evidence would not be accepted and his involvement would be exposed. This, in my opinion, enables the ordinary reasonable reader to infer the plaintiff's guilt of such conduct, and to understand the article in terms of imputations 6(b) and (c) as pleaded. 32However, I am satisfied that imputation 6(a), that the plaintiff murdered George Brown, cannot be sustained. The opening paragraphs (par 54, 55) assert that more than one person had undertaken the assault and murder described. The reference to "faceless men pulling the strings" (par 75) suggests that the murderers had been engaged by some person or persons for that purpose. In my opinion nothing in the article provides a rational basis for the inference that the plaintiff himself was one of them. I uphold the objection, and rule that imputation 6(a) be struck out. 33I turn now to the defendants' application to strike out par 7 of the statement of claim. It is now in the following terms: "In "The Age" of 30 November 2010 and 4 December 2010 the first, second, third and fourth defendants published of and concerning the plaintiff certain defamatory material copies of which are annexed hereto and marked 'A' and 'B' and the said material in its natural and ordinary meaning conveyed or was understood to have conveyed to persons who read both annexures the following defamatory imputations ..." The imputations are in the same terms as those pleaded in respect of the separate publications. 34The defendants submitted that it was not open for the plaintiff to sue upon the articles as if they were a single publication and read as one in circumstances where they are separate publications, written by different journalists and published on different occasions. The principles were stated in Burrows v Knightley (1987) 10 NSWLR 651 by Hunt J (p 657): "In my opinion, the law may be stated in this way. Where the matter of which a plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent, on the face of the matter complained of itself, either an intention on the part of the defendant that it be read together or direct references internally one to the other so that the reader may reasonably be expected to read it together, it is acceptable practice to plead all of the material in the one paragraph of the statement of claim and to identify the imputations said to have been conveyed by the material as a whole ..." 35The defendants submitted that each was a stand-alone publication on the face of which there was no indication of an intention that they be read together, and there was no internal reference one to the other which would make it reasonable to conclude that a reader would be expected to read them together. It was put that nothing supported the proposition that the articles were presented to the reader to be read as if they were parts of a serial. Accordingly, principle required each article to be pleaded as a separate publication as, in this case has been done in pars 3, 5 of the statement of claim. 36In opposition, the plaintiff submitted the articles were related in that they were published in the same newspaper a few days apart, and concerned the same subject matter, namely the plaintiff and the murder of George Brown. 37In deciding the issue I respectfully adopt the following observations of Simpson J in Phelps v Nationwide News Pty Ltd & Anor [2001] NSWSC 130: "21 The above review of the cases drawn to my attention illustrates the diversity of the circumstances which might give rise to considerations of whether separate but related publications should properly be regarded as one. Related publications may be distinct items contained in a single edition of, for example, a newspaper ( Rakimov, Lucas ); or may be contained in successive daily or weekly (or other) editions of the same publication ( Burrows ). No doubt many other situations will arise. One example that comes to mind is the publication of a news item illustrated by a photograph, or a cartoon. Others are episodic items, broadcast on radio or telecast, separated by advertisements or by unrelated segments. 22 Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field. ... 24 As I have sought to indicate, there is no easy answer to the question whether separate items should be regarded as individual or composite. Each case will have to be assessed on its own facts and circumstances. One relevant consideration, as Hunt J mentioned in Burrows , arises where the terms of one part of the publication invite the recipient also to receive the other. Thus, the serialisation of a book may be seen to invite the reader to read each instalment. This would suggest pleading a composite publication. On the other hand, where the instalments are published at weekly or longer intervals, they may more readily be seen as separate and distinct publications." 38In my opinion the defendants' application must succeed. I find there is no evidence on the face of either article to support the conclusion that the reader may reasonably be expected to read them together. Although related in subject matter each is, self evidently, distinct from the other. I find that the requirements for permitting the pleading of multiple publications in combination as stated in Buckley and Phelps have not been met. In my opinion it is not reasonable to regard the separate articles as a composite. Accordingly, I propose to order that par 7 of the statement of claim be struck out. The issue in 10/416107 39In these proceedings the plaintiff sues the first defendant (Fairfax Media) as the publisher of the newspaper "The Sydney Morning Herald", and the second defendant (Feneley), journalist, for relief for breaches of s 51AA and s 52 Trade Practices Act 1975 (Cth) and s 42 Fair Trading Act 1987 (pars 3, 4, 5 statement of claim). He also sues the defendants for damages for defamation for the publication in the newspaper on 30 November 2010 of an article under the heading "Racing family at odds over brother's amazing claim" (The Herald article). A copy of the article with numbered paragraphs is Annexure A to the statement of claim. 40By notice of motion filed 11 February 2011 Feneley sought an order that the proceedings against him for damages for defamation be struck out or dismissed on the basis that they were commenced by the plaintiff without having first obtained leave to do so pursuant to s 23 of the Act. 41The defendants also applied to strike out the imputations pleaded in par 7 which are in the same terms as those earlier referred to, on the same grounds. 42Feneley's application is based on the ground that as against him these proceedings are in relation to matter which is the same as, or like, the matter the subject of proceedings no. 10/416092 (the first proceedings) and were brought without the necessary leave of the court. 43Section 23 of the Act provides: "23 Leave required for further proceedings in relation to publication of same defamatory matter If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought." 44The issue is whether the Herald article, the subject of these proceedings, is the same as, or like, the first Age article, which is the subject of the first proceedings. 45Under s 4 of the Act "matter" is defined to include: "(a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and (b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and (c) a letter, note or other writing, and (d) a picture, gesture or oral utterance, and (e) any other thing by means of which something may be communicated to a person." 46The Herald article is in substantially similar terms to the first Age article which was published the same day. The difference between them is that the first Age article does not include the matter in pars 1, 2, 25A, 26, 38, 40-47 of the Herald article, and the headlines are worded differently. The plaintiff alleged that each article conveyed the same imputations. 47The defendants submitted (T p 8, 9) that the prohibition under s 23 rendered the further proceedings incompetent in their entirety, in that it was not limited to claims against the same defendant but extended to the claim(s) against all other defendants in respect of the same matter. In other words, it was put that it was sufficient for the application of s 23 that only one of the defendants in the further proceedings be the same as the, or a, defendant in the earlier proceedings. However, subsequently the defendants appeared to accept (T p 10), correctly, in my opinion, that on its proper construction s 23 did not prevent further proceedings in respect of the same or like matter against other defendants. It follows that, to the extent the submission was maintained, it must be rejected. 48In Buckley v The Herald and Weekly Times Pty Ltd (No. 2) [2008] VSC 475 the test to be applied in determining whether matter is the same, or like, matter, was expressed by Kaye J as follows: "15. ... in order that there be a relevant "likeness" for the purposes of s 23, the similarities between the matter sued on in the earlier proceedings, and the matter the subject of the present proceedings, must, in a real sense, be significant and substantial. It is not sufficient that there be some similarity, or common features, between the two sets of publications. Rather, the plain terms of the section, its underlying purpose, and its history, all lead to the same conclusion, namely, that in order that the publication in the instant proceeding be considered to be "like" the publication sued on in an earlier proceeding, there must be a real and substantial similarity between the two sets of publications." 49He also said: "13. ... The test postulated by s 23 is not that of likeness between the sets of meanings pleaded and relied upon by the plaintiff. Rather, the relevant test is that of likeness between the articles or publications relied upon by the plaintiff in the two proceedings. Obviously, the imputations pleaded by the plaintiff in each proceeding are relevant, indicating the defamatory meanings which the plaintiff seeks to place on the two sets of publications. However, the imputations pleaded by the plaintiff, and any identity or commonality between them, cannot be determinative of the issue." 50In my opinion there is a substantial similarity between each of the articles under consideration. In so finding I have taken into account the differences between them in that the first Age article does not include the matter in the paragraphs of the Herald article referred to, and the headlines are worded differently. In my opinion these differences do not affect the overall impression each conveys to the reader. I have also taken into account that the plaintiff claims that the defamatory imputations conveyed by each article are the same. 51Accordingly, I find that the Herald article is the same as, or like, the first Age article which is the subject of the first proceedings. The inevitable result is that in these proceedings the claim for defamation against Feneley (pars 6 and 7, statement of claim), having been brought without leave, is invalid under s 23 of the Act, and must be dismissed. 52With respect to the challenge to the imputations, the competing submissions in respect of the first Age article and the Herald article were taken to be the same. In my opinion the Herald article, taken as a whole, is incapable of conveying imputation 7(a). I find that imputations 7(b) and 7(c) are unambiguous and sufficient in form, and are reasonably capable of being conveyed by the article. The reasons for these conclusions are the same as those in respect of the first Age article. I have taken into account the textual differences referred to, but in my opinion, they do not affect the outcome. 53Accordingly, I rule that imputation 7(a) be struck out. I rule that imputations 7(b) and 7(c) should be left to the jury, as alternatives to each other. The issues in 10/416124 54In these proceedings the plaintiff's claims are for publication on or about 8 December 2010 on the internet of matter alleged to consist of the Herald article and the second Age article i.e. these articles together constitute the matter complained of. It is alleged that the first defendant (Fairfax Digital) was the publisher, and that the second defendant (Fairfax Media), the third defendant (Feneley), the fourth defendant (Rule) and the fifth defendant (Silvester) caused its publication. It is alleged that separate publication was made on each of the sites of "The Sydney Morning Herald", "The Age", "WA Today", and "Brisbane Times" (pars 3, 6, 9 and 12 of the statement of claim). 55On 8 February 2011 leave was given to the plaintiff, by consent, to discontinue against Fairfax Media. 56On 7 March 2011 the plaintiff sought leave to discontinue against Feneley, Rule and Silvester. In addition the plaintiff abandoned the allegations in pars 4, 7, 10 and 13 of the statement of claim that these defendants caused the material to be published on the internet. 57By notice of motion filed 11 February 2011 Feneley, Rule and Silvester sought an order that the proceedings against them be struck out or dismissed on the ground that they were commenced by the plaintiff without first having obtained leave to do so pursuant to s 23. 58The defendants also applied to strike out pars 3, 6, 9 and 12 of the statement of claim on the ground that the allegations have been pleaded contrary to principle which requires claims in respect of each publication to be pleaded separately. 59The application under s 23 was based on the ground that these proceedings are in relation to matter which is the same as, or like, the matter the subject of the first proceedings, and were brought without the necessary leave of the court. 60The plaintiff accepted that the wording of the articles in these proceedings and of those in the first proceedings are the same. However, it was submitted that on the proper construction of s 23 the meaning of the term "matter" includes an article, and also the mode or means by which it was published. It was argued that as these proceedings concerned articles published on the internet they were to be considered as proceedings in relation to matter which was different to, or not the same as, the matter the subject of the first proceedings being matter published in a newspaper. Thus it was submitted that the claims against Feneley, Rule and Silvester in these proceedings did not attract the application of s 23. 61The meaning of the term "matter" is defined in s 4 of the Act, the terms of which are set out above and include the following: "(a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and (b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and ... (e) any other thing by means of which something may be communicated to a person." 62It is apparent that by these subparagraphs various forms of publication are categorised with reference to the means by which they are communicated. In terms, the distinction is made between the matter and the mode by which it is communicated. Relevantly, the categories of matter included in subpar (b) includes that which is communicated by means of the internet. 63Acceptance of the plaintiff's submission requires interpreting the categories of "matter", as defined, to include the mode or means by which such matter is communicated. In my opinion, the submission is no more than an invitation to the court to give to the term "matter" a construction which is inconsistent with, and unsupported by, the unambiguous language of the statute. The submission must be rejected. It follows that the only issue under s 23 is whether the matters, namely the articles in these proceedings, are the same as, or like, the matters in the first proceedings. The plaintiff accepted that their wording is the same. Accordingly, the proceedings as against Feneley, Rule and Silvester attract the application of s 23. 64The question now arises as to the order to be made. The plaintiff sought leave to discontinue against these defendants on 7 March 2011, after the hearing of their notice of motion some weeks before. Leave was not consented to. 65Discontinuance of a claim is provided for by Uniform Civil Procedure Rules 2005 Pt 12, r 12.1 which, relevantly provides: "12.1 Discontinuance of proceedings (1) The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant: (a) with the consent of each other active party in the proceedings, or (b) with the leave of the court." 66Rule 12.3 provides, in effect, that discontinuance does not bar the plaintiff from claiming the same relief in fresh proceedings, subject to the terms on which consent or leave was given. 67These, and the other, rules in UCPR Div 1, Pt 12 govern the procedure for discontinuance. In my opinion it is clear from their terms that they apply only in respect of a claim for relief against a defendant which was legitimately made. 68Further, in my opinion, s 23 operates so as to render invalid ab initio the bringing of the further defamation proceedings without the leave of the court. The prohibition is unqualified. There is no power to grant leave retrospectively ( Carey v ABC [2010] NSWSC 709, par 25). There is no provision by which the invalidity of the further defamation proceedings may be subsequently remedied, for example, by removal of the relevant person/defendant from either of the defamation proceedings under consideration. It follows that these proceedings as against Feneley, Rule, and Silvester were invalid at the time of their commencement by the filing of the statement of claim on 15 December 2010, with the result that they were entitled to an order for dismissal from the outset. 69In the circumstances, the procedure for discontinuance under r 12.1 is unavailable to the plaintiff. Leave to discontinue should be refused. 70As earlier mentioned, on 8 February 2011 leave was given by consent to discontinue against Fairfax Media. For the above reasons, leave was given in error, and should be revoked. Accordingly, I propose to order that in these proceedings the claims against Fairfax Media, Feneley, Rule, and Silvester be dismissed. 71The remaining issue concerns the claims against Fairfax Digital as the publisher on several internet sites of matter which was a composite of the Herald article and the second Age article. 72Paragraph 3 of the statement of claim pleads: "3 On or about 8 December 2010 and thereafter and on other dates the First Defendant published on the internet of the Sydney Morning Herald site of and concerning the plaintiff defamatory material a copy of which is annexed hereto and marked 'A'." Annexure "A" is the composite referred to. Paragraphs 6, 9, and 12 of the statement of claim are in similar terms, alleging publication on "The Age", "WA Today", and "Brisbane Times" internet sites respectively. 73It was accepted that the occasion of publication of matter on the internet is when it is downloaded ( Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575, par 44). 74I have earlier held that it was impermissible to plead the newspaper versions of the articles as a composite publication. The present issue is whether the circumstances in which the articles were published on the internet and were available for downloading changes the situation and entitles the plaintiff to plead them as a single publication. 75Evidence was provided in the affidavits of Mr Kevin Lynch sworn 11 February and 7 March 2011, for the defendants, and in the affidavit of Mr John Field sworn 22 February 2011, for the plaintiff. The affidavits were read without objection. 76Before the court were printouts of search results obtained by Mr Field on 7 December 2010 from each website. They represented the results of searches under the term "risley" on the sites smh.com.au, brisbanetimes.com.au, and watoday.com.au, and under the term "george brown" on the site theage.com.au. The layout and content of the printouts were substantially similar. The order in which items are listed on the search result in each case is based upon the frequency with which the chosen search term appears in the headline, abstract and body of the article. 77It is sufficient to refer only to the printout from the site smh.com.au. Under the heading "Search Results" are the words "Viewing 1-5 of 5 results found for risley". The first entry below the heading consists of the photograph of the plaintiff and the headline of the second Age article and the words "The Waterhouses are not a great Australian family, just a famously flawed one". The second entry refers to an article unrelated to the plaintiff concerning one Michealene Risley. The third and fourth entries each consist of photographs of the plaintiff and his brother, and the headline of the Herald article, and, in the third, the words: "Beyond all the headline-making acrimony between the turf identity Robbie Waterhouse and his long-estranged brother, David, this is the untold story", and, in the fourth, the words "The Waterhouse war story is out at last, writes Rick Feneley". The fifth entry refers to an article unrelated to the plaintiff and concerning one Amy Winehouse. Common to each printout there appears in the top right hand corner the words: "Search our archives. News Store allows you to search Fairfax publications and ASX company announcements from 1990 to today". 78The defendants submitted that nothing in the printouts establishes that it is reasonable to expect that the articles would be read as one. It was put that the fact that the search resulted in a reference to both articles is insufficient to establish the necessary linkage i.e. proximity in the search result is not enough. It was put that the evidence demonstrates that in order to read the articles it was necessary to download each separately, an exercise which required clicking onto the distinct link referable to the particular article sought. 79The plaintiff's submission was to the effect that as access to the articles was provided at the same time to a person who wished to download them, it was open to plead them as one. 80I accept the defendants' submissions. The evidence supports the finding, which I make, that the contents of the search results contain no matter which indicates that the articles should be read together. I find that the references in the printouts to the articles concerning the plaintiff and to the articles concerning other persons present to the searcher each one as a single, discrete matter, unconnected to the other. With respect to each article, I adopt the conclusion of the plurality in The Buddhist Society to Western Australia Inc v Bristile & Anor [2000] WASCA 210, par 10: "... In its electronic existence as part of the content of the website, it is a separate 'file' and is intended to be, and would be, called up and viewed as a separate article. It has an individualness of form and purpose. We are of the opinion that in the context of the law of defamation, it must stand or fall on its own". 81Accordingly, I hold that the pleading of the articles published on the internet sites in combination is impermissible. I propose to order that pars 3, 6, 9, and 12 of the statement of claim be struck out. As a consequence pars 5, 7, 8, 10, 11, and 14 must also be struck out. Conclusion 82I make the following orders: 10/416092 (1) Grant leave to the plaintiff to discontinue the claims against the second defendant in pars 2 and 7 of the statement of claim, and the claim against the third and fourth defendants in par 7 of the statement of claim. (2) The imputations in pars 4(a), and 6(a) of the statement of claim be struck out. (3) The imputations in pars 4(b) and 4(c), and in 6(b) and 6(c) of the statement of claim be left to the jury in the alternative. (4) Paragraph 7 of the statement of claim be struck out. (5) Plaintiff to pay the defendants' costs. 10/416107 (1) The claims against the second defendant in pars 6 and 7 of the statement of claim be struck out. (2) The imputation in par 7(a) of the statement of claim be struck out. (3) The imputations in pars 7(b) and 7(c) of the statement of claim be left to jury in the alternative. (4) Plaintiff to pay the defendants' costs. 10/416124 (1) Leave to discontinue against the second defendant be revoked. (2) The claims against the second, third, fourth and fifth defendants be dismissed. (3) Paragraphs 3 to 14 inclusive of the statement of claim be struck out. (4) Plaintiff to pay the defendants' costs. ********** 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. Decision last updated: 17 March 2011