District Court New South Wales Medium Neutral Citation: Renshaw v Reed Business Information Pty Ltd trading as Lawyers Weekly [2013] NSWDC 5 Hearing dates: 1 February 2013 Decision date: 01 February 2013 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Grant leave to the plaintiff to strike in as paragraph 12 of the matter complained of the photograph appearing opposite paragraphs 3 to 5 of the matter complained of. (2) Imputations (b) and (d) will go to the jury. (3) Imputations (e) and (f) struck out with leave to replead. (4) Direct the plaintiff to provide a draft Amended Statement of Claim by 5:00pm Tuesday 5 February 2013. (5) Matter listed for directions or argument before Gibson DCJ on Friday 8 February 2013 at 9:00am in order to enable a hearing date to be allocated as soon as the pleadings timetable is completed. (6) Defendants to notify the plaintiff of any objections by 4:00pm Thursday 7 February 2013. (7) Plaintiff is to pay the defendants' costs of today. Catchwords: TORT - defamation - imputations - form and capacity Legislation Cited: - Cases Cited: Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138 Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20 Ainsworth v Burden [2000] NSWSC 105 Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Gardener v Nationwide News Pty Ltd [2007] NSWCA 10 Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Hough v London Express Newspaper Ltd [1940] 2 KB 507 John Fairfax Publications Pty Ltd v Blake; David Syme v Blake (2001) 53 NSWLR 541 Lewis v Daily Telegraph Ltd [1964] AC 234 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Maxwell-Smith v Warren [2007] NSWCA 270 Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Singleton v Ffrench (1986) 5 NSWLR 425 Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 Waterhouse v David Syme & Co Ltd [2000] NSWSC 817 Texts Cited: Australian Defamation Law and Practice (LexisNexis, Australia) Category: Interlocutory applications Parties: Plaintiff: Anthony Renshaw First Defendant: Reed Business Information Pty Ltd trading as Lawyers Weekly Second Defendant: Jeremy Knibb Representation: Plaintiff: Mr R Rasmussen Defendants: Mr A T S Dawson Plaintiff: Beazley Singleton Lawyers Defendants: Banki Haddock Fiora File Number(s): 2012/363736 Publication restriction: None Judgment 1These are reasons for my ruling today striking out two of four imputations pleaded by the plaintiff in the statement of claim filed on 22 November 2012. 2The imputations pleaded in the statement of claim are: (a)The Plaintiff was in prison over drug charges (paragraph 7). (b)The Plaintiff is a criminal (whole article including 7 and 8). (c)The Plaintiff fled to Queensland in March to avoid justice (8). (d)The Plaintiff is embroiled in a seedy Court case (3). (e)Richard Vereker put up $50,000 bail to have the Plaintiff released from prison (8). (f)The Plaintiff is unfit to be a Barrister (whole article). 3The imputations the subject of challenge in this application are imputations (b), (d), (e) and (f). 4Although the general practice, in imputation arguments, is for the matter complained of to be set out in full either as part of, or as a schedule to, any judgment, I have not done so in this application. This is because counsel for the defendants has told me that the matter complained of contains errors, is withdrawn from publication, has been the subject of an apology and will be defended by the defence of offer of amends. In those circumstances, and given the narrow bases upon which the argument has proceeded before me today, it is not appropriate to include the text of the publication in this judgment. 5I shall set out each of the imputations challenged, the basis for challenge and the rulings I have made. Imputation (b): the plaintiff is a criminal 6The matter complained of is an article in the "Lawyers Weekly" dated 21 November 2012, captioned "Barrister's Double trouble [sic]". The article describes the plaintiff, a barrister, as having two problems. The first is that he has been the victim of theft by a "former Penthouse Pet" with whom he shared his apartment, and the second is that he was "released from prison over unrelated drugs charges", following which he fled to Queensland in March 2012; as a result, the surety of $50,000 put up on his behalf was called upon. 7Counsel for the defendants submits that an imputation of being a criminal is not capable of being conveyed: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. He submits that the matter complained of refers only to charges being laid which, without more, cannot convey an imputation of guilt. He also relies upon the asserted confusion of names between the plaintiff and the woman charged with stealing the money, which a diligent ordinary reasonable reader ought to be able to discover. 8Counsel for the plaintiff submits that the matter complained of goes well beyond stating that charges have been laid, and relies upon Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [11], where Gleeson CJ, McHugh, Gummow and Heydon JJ cited with approval the observations of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 277: "[11] Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd, that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said: It is not ... correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded. [12] A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt6. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that point towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance. At this preliminary stage of the proceedings, the respondents have not yet had an opportunity to indicate why it was considered relevant to the story about the fire to link it with the development application. For that matter, the occasion has not yet arisen for a jury to decide what meanings the article would convey. We are concerned only with the anterior question of what the article is capable of conveying." 9The matter complained of states that the plaintiff was released on bail from prison over the "unrelated drugs charges" after a Mr Vereker posted a $50,000 surety. I agree that this imputes only the laying of charges. I also agree that this sentence is followed by a reference to Mr Vereker pledging "the $50,000 surety for her", namely the woman charged with stealing from the plaintiff, and that this is inconsistent with the statement that Mr Vereker provided a $50,000 surety for the plaintiff. 10I agree with the submission of Mr Rasmussen that the matter complained of goes much further than merely referring to the drugs charges for which the plaintiff was in prison. The reader is told that the plaintiff "fled to Queensland in March" (this being a November publication) and that Mr Vereker was "forced to ask a Supreme Court judge" to get the money back after the plaintiff had fled. This goes well beyond an assertion that criminal charges have been laid. 11There are references to the surety being given for "her" (i.e. a person other than the plaintiff) and there are references to the criminal charges laid against the woman who stole money from the plaintiff. Counsel for the defendants submits that the combination of these inconsistencies, and the principles set out in Mirror Newspapers, mean that this imputation is not capable of being conveyed. 12It is not uncommon for inconsistent or wrong identification material to appear in the matter complained. The presence of such material does not mean that the imputation cannot be conveyed: Australian Defamation Law and Practice (LexisNexis, Australia) point out at [6,035]; Hough v London Express Newspaper Ltd [1940] 2 KB 507; Abbott v TCN Channel Nine Pty Ltd (1987) Aust Torts Reports 80-138; Hall v Queensland Newspapers Pty Ltd [2002] 1 Qd R 376; Gardener v Nationwide News Pty Ltd [2007] NSWCA 10 (but cf Maxwell-Smith v Warren [2007] NSWCA 270). 13I am satisfied that the matter complained of does not merely state that charges have been laid; the inference that the plaintiff has fled the jurisdiction and is in breach of his obligations to appear, together with the tone and presentation of the article in its entirety, go well beyond such a statement. While there are references capable of suggesting that the woman in question could have been the person for whom the surety was posted, the assertions that the plaintiff fled the jurisdiction resulting in the surety being called upon are clear. 14This imputation will go to the jury. Imputation (d): the plaintiff is embroiled in a seedy Court case 15The defendants' objections are: (a)The imputation does not capture the sting but merely repeats the words of the matter complained of; (b)"Seedy" is a slang term, and the use of slang in imputations is impermissible; (c)The imputation is not capable of being defamatory. 16Prior to the uniform legislation, objections of this kind were common in New South Wales. This was in part because the imputations (and not the matter complained of) formed the cause of action, which was seen as a good reason for careful drafting, and partly because to obtain tactical advantages in s 7A jury trials, where the jury had to determine issues of defamatory meaning and might more readily do so if the imputation quoted the publication. Challenges to use of the actual words are particularly likely to be brought where the words used are asserted to be slang, which is asserted to be ambiguous or of indeterminate meaning. 17In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Hutley JA stated (at 688) that it was "strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words that it has used." Gleeson CJ reiterated the correctness of Hepburn in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 148, using the imputation "X is disgusting" as a litmus for the degree of specificity (or lack thereof) in pleading. Hodgson JA similarly affirmed this principle in John Fairfax Publications Pty Ltd v Blake; David Syme v Blake (2001) 53 NSWLR 541 at [52] - [54]. Use of the words of the matter complained of was noted to be permissible, where those words were appropriate, by McColl JA in Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213. 18Counsel for the defendants referred to Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343, where an imputation that the plaintiff was "a shonky operator" had been pleaded. Hunt A-JA traced the history of this word (at [5] - [6]), concluded that "shonky operator" meant a dishonest person, and went on to dismiss the appeal. 19Although the Court of Appeal did not strike out this imputation on the basis that "shonky" was impermissible, this decision has come to be seen as a case supporting the striking out of similarly pleaded imputations where the words in the matter complained of are repeated and are asserted to be slang, on the basis that the issue of whether such an imputation could be pleaded "only arose on appeal" (Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20 at [24]). 20In Ahmed, the second case relied upon by the defendants on this point, the matter complained of described the plaintiff as "married to a lowlife grub who...was convicted of indecent assault" and went on to refer to the plaintiff (in the first broadcast) as "his grub of a wife". There were two hearings in the Defamation List in the Supreme Court in relation to the challenge to the word "grub". After the first challenge, Nicholas J struck out an imputation that the plaintiff "is a grub because she is a vile person", stating that the defendant's objections to the imputation had been "resolved during the course of submissions and exchange between Bench and Bar" and striking out the imputation with leave to replead. 21The repleaded imputations which were the subject of a second ruling in Ahmed were that the plaintiff was a grub because she was married to a convicted sexual offender and because she obtained an AVO against a talkback radio caller. Simpson J struck out both imputations. While her Honour considered the use of "grub" in the matter complained of conveyed a defamatory meaning (at [23]), that did not mean that its meaning was clear or ambiguous. Her Honour went on to state: "[25] It is sometimes the case that, by reason of lack of specificity in what is published by a defendant, a plaintiff is hampered in attributing a more precise meaning to the language used by the defendant than that language itself conveys. It is, after all, the language of the defendant: see, for example, Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682. However, the obligation remains upon a plaintiff to identify the defamatory meaning. It is quite possible that the language used by a publisher is so vague or unspecific as to leave open a range of meanings. In such a case, it is insufficient for a plaintiff to adopt, in the imputation, the language used by the defendant, and leave the question of its meaning to the jury, see Singleton v Ffrench (1986) 5 NSWLR 425. It is, of course, possible for a plaintiff to provide alternative translations of the defendant's language; but provide at least one translation a plaintiff must." 22In Singleton v Ffrench (1986) 5 NSWLR 425, the term "breach of trust" was genuinely ambiguous. "Seedy", however, is in a different category. It connotes distasteful, unsavoury or perhaps even disgusting conduct or events and there is no secondary meaning suggested. The "seedy" nature of the court proceedings is illustrated in the matter complained of by a photograph of a legs in pink high heels beside a briefcase full of cash. 23There is no need for the plaintiff to obtain a "translation" of "seedy", or to seek alternative words to encapsulate its meaning. It is, like "shonky", or "disgusting", a word for which the meaning is clear. I am unconvinced that the word is even a slang expression. 24For the same reasons that Gleeson CJ considered that the meaning of "X is disgusting" to be clear and not to need refinement, I consider that the meaning of "seedy" is not only clear but successfully encapsulates the sting of the matter complained of, including not only the words, but the heading and the photograph. 25This imputation will go to the jury. Imputation (e): Richard Vereker put up $50,000 bail to have the plaintiff released from prison 26I shall deal with the objection to this imputation only briefly, as counsel for the plaintiff has indicated that he proposes to amend this imputation in order to encapsulate the sting with more precision. 27Counsel for the defendants submits that the circumstances in which a person is the subject of a $50,000 surety pending a criminal hearing, cannot, without more, be capable of being defamatory. 28While the defamatory meaning of imputations should be determined against the context of the matter complained of (Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165), there is force in the defendants' submissions: Mirror Newspapers Ltd v Harrison, supra. The sting the plaintiff appears to be aiming at, namely that the plaintiff fled the jurisdiction resulting in the calling up of the surety, is simply not identified. 29I have struck out this imputation but granted the plaintiff liberty to replead. Imputation (f): the plaintiff is unfit to be a Barrister 30The defendants submit that the use of "unfit" is a "rhetorical flourish" which does not add to the sting of the imputation (Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419 at 420; Waterhouse v David Syme & Co Ltd [2000] NSWSC 817 at [22], with the result that this imputation does not differ in substance from (or rolls up) the other imputations pleaded: Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190. 31In Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 Simpson J (at [24]) deplored the practice of objecting to imputations on this basis, adding that "the time has come for defendants' counsel to bury the practice of attacking imputations pleaded by plaintiffs on the basis that they are "rhetorical"". Mr Dawson has also referred me to Australian Broadcasting Corporation v Hodgkinson, a decision to which Viney does not refer. 32There will clearly be cases where it is appropriate for there to be an imputation of unfitness; for example, in Ainsworth v Burden [2000] NSWSC 105, the matter complained of dealt with the issue of whether the plaintiff was a fit and proper person to hold a licence. 33In Australian Broadcasting Corporation v Hodgkinson, Hodgson JA noted at [39]: "[39] I agree with Ms Adamson that Morris does not decide that the words "fit" and "proper" are rhetorical, and that it does not decide that anything that is rhetorical should be struck out. Rather, the circumstance that an imputation or words in it are rhetorical may suggest that the imputation is expressed with insufficient precision or does not differ in substance from other imputations. I also accept, as suggested by Ainsworth, that the expression "not ... fit and proper" may in some contexts be sufficiently specific and precise. However, in my opinion Hansen can no longer be regarded as supporting a general proposition that less precision and specificity is required for contextual imputations than for plaintiff's imputations, particularly having regard to the subsequent introduction of the s 7A procedure and its implications. The considerations of practical justice referred to in Drummoyne are applicable in each type of case. I think that this case can be distinguished from Ainsworth because in that case, the question of fitness and propriety of the plaintiff in relation to licences for poker machines was the very subject of the defendant's publication, and involved qualities of character that were quite readily identifiable; and because the factors pointing to unfairness in this case were not present in Ainsworth." 34Conformably with this reasoning, I have struck out this imputation. I have granted leave to replead, as it would appear that the imputation the plaintiff was seeking to convey relates to whether his conduct contravenes his responsibilities as a member of the legal profession. If so, that imputation should be pleaded with some degree of specificity. Concluding remarks 35This matter was sent to me from the General List, after another judge of this court disqualified himself from hearing the argument. As the plaintiff is anxious to obtain a hearing date, and the defence is limited to offer of amends, I have made orders for the proposed amendments to be listed before me next Friday so that any further objections can be dealt with on that day, and the matter then returned to the Defamation List. 36I have made an order for costs in favour of the defendants. The defendants were successful in relation to two of the four issues for argument. In addition, the defendants had to argue the case before me today without the benefit of knowing what the plaintiff's submissions would be, as the plaintiff totally failed to comply with a timetable for his submissions to be provided by 25 January. Failure to comply with timetables for submissions in defamation arguments inconveniences not only the other parties, but also the court, and costs penalties should follow in such circumstances. Orders (1)Grant leave to the plaintiff to strike in as paragraph 12 of the matter complained of the photograph appearing opposite paragraphs 3 to 5 of the matter complained of. (2)Imputations (b) and (d) will go to the jury. (3)Imputations (e) and (f) struck out with leave to replead. (4)Direct the plaintiff to provide a draft Amended Statement of Claim by 5:00pm Tuesday 5 February 2013. (5)Matter listed for directions or argument before Gibson DCJ on Friday 8 February 2013 at 9:00am in order to enable a hearing date to be allocated as soon as the pleadings timetable is completed. (6)Defendants to notify the plaintiff of any objections by 4:00pm Thursday 7 February 2013. (7)Plaintiff is to pay the defendants' costs of today. ********** 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: 01 February 2013