Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 Hearing dates: 21 May 2015 Date of orders: 24 June 2015 Decision date: 24 June 2015 Before: McColl JA at [1]; Emmett JA at [2]; Leeming JA at [45] Decision: 1 Application for leave to appeal be dismissed. 2 The Applicants file and serve, within 7 days, any submissions, of no more than 3 pages, that they may wish to make concerning the costs of the draft notice of contention filed by the Respondent on 16 February 2015. 3 The Respondent file and serve any response, of no more than 3 pages, within 14 days. 4 The Applicants file and serve any reply, of no more than 1 page, within 21 days. 5 Subject to any subsequent order in consequence of any submissions so made: (a) The Applicants pay the Respondent's costs of the application for leave to appeal, excluding the costs of the draft notice of contention filed by the Respondent on 16 February 2015. (b) The Respondent pay the Applicants' costs of that notice of contention. Catchwords: DEFAMATION – defences – contextual imputations – whether primary judge erred in holding that certain contextual imputations were impermissibly imprecise – whether primary judge misapplied principles stated in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 Legislation Cited: Defamation Act 2005 (NSW), ss 25, 26 Uniform Civil Procedure Rules 2005 (NSW), rr 14.30, 14.31, 14.33 Cases Cited: Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 Nationwide News Pty Ltd v Warton [2002] NSWCA 377 State of New South Wales v Deren [1999] NSWCA 22; Aust Torts Reports ¶81-502 Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; 134 CLR 1 Waller v Nationwide New Pty Ltd [2011] NSWSC 611 Category: Principal judgment Parties: Fairfax Media Publications Pty Ltd (First Applicant) The Age Company Pty Ltd (Second Applicant) The Federal Capital Press of Australia Pty Ltd (Third Applicant) Wallace Macarthur King (Respondent) Representation: Counsel: Mr A Leopold SC with Ms L Barnett (Applicants) Mr R McHugh SC with Mr M Richardson (Respondent) Solicitors: Banki Haddock Fiora (Applicants) Atanaskovic Hartnell (Respondent) File Number(s): 2014/287857 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: King v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1244 Date of Decision: 8 September 2014 Before: McCallum J File Number(s): 2013/348650 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. McCOLL JA: I agree with Emmett JA. 2. EMMETT JA: These proceedings are concerned with a claim by the respondent, Mr Wallace King, that material published by the applicant, Fairfax Media Publications Pty Ltd (Fairfax), in the Australian Financial Review newspaper (the AFR newspaper) on 3 October 2013, was defamatory of him. He commenced proceedings in the Supreme Court in which he claimed damages for defamation in respect of the material published by Fairfax in the AFR newspaper and other media. He also claimed damages from related companies of Fairfax who published much the same material in other media. The present application is concerned only with the material published in the AFR newspaper, on the basis that the outcome of these proceedings will bind all parties in respect of the similar material. 3. The material in question in these proceedings was published on the front page and page 10 of the AFR newspaper of 3 October 2013. Four separate articles were published on pages 1 and 10 of the AFR newspaper of that day. The main relevant article commences on the front page under the headline "Wal King 'approved Iraq bribe'" and continues on page 10. The second relevant article begins on the front page under the headline "Ethical breach not so isolated" and also continues on page 10. A third article appears on page 10 under the headline "Gaddafi link in offshore networks". A fourth article appears on page 10 under the headline "ASIC under spotlight over failure to act". 4. In its defence, Fairfax sought to rely, inter alia, on contextual imputations said to arise from the material, which it asserted were substantially true. Mr King objected to the contextual imputations on the ground that they were imprecise and bad in form. On 8 September 2014, a judge of the Common Law Division (the primary judge) ordered that the relevant imputations be struck out. Fairfax has now applied for leave to appeal from the orders made by the primary judge. A direction has been given that any appeal be heard concurrently with the application, assuming that leave to appeal is granted. The Relevant Pleadings 1. Following interlocutory skirmishes, a second further amended statement of claim was filed on behalf of Mr King on 7 July 2014 (the Statement of Claim). In the Statement of Claim, Mr King made, relevantly, the following allegations: * Mr King is the former chief executive of, and a former director of, Leighton Holdings Ltd (Leighton); * At all material times, Fairfax published the AFR newspaper; * On or about 3 October 2013, Fairfax published in the AFR newspaper of and concerning Mr King an article entitled "Wal King 'Approved Iraq bribe'" and "Ethical breach not so isolated" (the matter complained of). * The matter complained of, in its natural and ordinary meaning, was defamatory of Mr King in giving rise to the following imputations: ● Mr King committed a criminal offence under Australian law when he approved a $42 million kickback to a company in Monaco nominated by Iraqi officials, in return for Leighton International obtaining a $750 million oil pipeline contract; ● Mr King approved a bribe in Iraq; ● Mr King, as chief executive officer of Leighton, knew that bribery, corruption and cover-ups were rife in the company's international empire and failed to prevent them. ● Mr King committed criminal offences by approving the payment of multiple bribes; ● Mr King, having approved the payment of $87 million in order to obtain a $700 million contract when at least half of that payment was a kickback, was the sort of man who, if later asked about the payment of the kickback, would deceitfully claim that he had not approved the payment or that he had "forgotten it"; ● Mr King, while chief executive officer of Leighton, received a portion of Mr Sri Kumar's 10 per cent kickbacks for deals in Iraq, India and Tanzania; ● Mr King, in his role as chief executive officer of Leighton, approved plans for the company to pay multimillion dollar kickbacks in Iraq, Indonesia, Malaysia and elsewhere; ● Mr King, in his role as chief executive officer of Leighton, regularly covered up multiple instances of bribery and corruption of foreign officials by company executives and employees; ● Mr King, in his role as chief executive officer of Leighton, after being notified in 2009 by a whistleblower of criminal conduct, including a systematic fraud, covered it up; ● Mr King, during his tenure as chief executive officer of Leighton, encouraged a culture of rewarding corruption and incompetence, and abysmal corporate governance; ● Mr King's performance as chief executive officer of Leighton was so grossly incompetent that he failed to prevent Leighton executives and employees from engaging in widespread bribery, corruption and cover-ups. The second imputation is an alternative to the first imputation and the ninth imputation is an alternative to the eighth imputation. 1. On 17 July 2014, Fairfax filed a defence to the Statement of Claim (the Defence). Relevantly for present purposes, Fairfax admitted in the Defence that it published the matter complained of on 3 October 2013 but denied that the matter complained of was of and concerning Mr King. Fairfax also asserted in the Defence that the matter complained of: * is not capable of conveying the imputations set out above; * did not convey or was not understood to convey those imputations; * is not capable of being defamatory of Mr King in the sense pleaded; and * is not defamatory of Mr King in the sense pleaded. No pleading question presently arises out of the Statement of Claim and Defence as summarised above. 1. However, paragraph 22 of the Defence seeks to raise, by way of defence, inter alia, s 25 and s 26 of the Defamation Act 2005 (NSW) (the Defamation Act). Section 25 relevantly provides that it is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. Section 26 relevantly provides that it is a defence to the publication of defamatory material if the defendant proves that the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true and that the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. 2. Paragraph 22(a) of the Defence relevantly asserts that, in so far as, and to the extent that, it may be found that the matter complained of was published of and concerning Mr King and that it is defamatory of him, each of the tenth imputation and the eleventh imputation set out above is substantially true. The Defence does not assert that any of the other imputations is substantially true. 3. Paragraph 23.60 of the Defence asserts that the tenth imputation is substantially true by reason of facts alleged in paragraphs 23.1 to 23.43 of the Defence. Paragraph 23.60 also asserts that the eleventh imputation is substantially true by reason of the facts asserted in paragraphs 23.1 to 23.59. 4. The facts alleged in paragraphs 23.1 to 23.43 concern the following matters: * The position of Mr King as the chief executive officer of Leighton and the holder of other offices within the Leighton Group; * The Leighton Group of companies operated by Leighton as parent entity; * A significant commercial project known as the Eclipse Project involving the building of a 130 metre long pipe-laying barge for use in the offshore oil industry; * The completion of purchase orders in respect of the Eclipse Project to procure high tensile steel; * The making in February 2009 by employees within the Leighton Group of allegations of corrupt conduct in connection with the Eclipse Project, an internal inquiry in relation to the allegations and a report of the enquiry; * The receipt by Mr King on 13 November 2009 of an email sent by an electrical services manager working on the Eclipse Project alleging that a "payoff" had been paid to a member of the Eclipse Project team; * The retainer of PricewaterhouseCoopers (PwC) in December 2009 to review the internal inquiry and allegations made in the 13 November 2009 email, and a report by PwC of 22 December 2009; * The failure by Mr King, as chief executive officer of Leighton, to supervise properly the overseas operations of the Leighton Group, to investigate allegations of serious misconduct, to maintain a corporate culture that would ensure that serious allegations of misconduct would be properly investigated and dealt with, to ensure that there were reporting lines that would ensure that serious allegations of misconduct would be relayed to the Leighton board, to prevent employees of the Leighton Group from engaging in corruption and to prevent cover-ups of allegations of corruption; * Mr King's presiding over a serious breakdown of corporate probity, governance and ethics; * The payment of kickbacks to nominated sub-contractors in connection with Iraq contracts and the failure by Mr King to ensure that an inquiry or investigation be made in relation to those kickbacks or to ensure that there was a broad and thorough investigation into matters of corporate probity, governance and ethics in relation to such matters, although a competent and ethical chief executive officer of Leighton would have done those things. 1. The additional facts alleged in paragraphs 23.44 to 23.59 concern the following matters: * The payment to Mr King in early 2010, at the conclusion of his employment with Leighton, of termination entitlements comprising a fixed retirement benefit together with a sum in consideration for agreeing to a three-year restraint period following termination; * A consulting agreement entered into in December 2010, between Mr King and Leighton, under which Leighton retained the services of Mr King in consideration of monthly fees, in circumstances where the consulting agreement did not require Mr King to perform any services as consideration for the fees, and up to July 2011, Mr King had not performed any or had only performed minimal services under the consulting agreement and the amounts payable were grossly exorbitant whether services were actually performed or not (but particularly so in light of Mr King's lack of services performed); * The failure by Mr King, while still chief executive officer of Leighton, to prevent Leighton from paying him an unjustifiably excessive and exorbitant financial benefit, which was conduct that was corrupt and amounted to a breakdown of corporate probity, governance and ethics; * The provision by Leighton to Mr King, pursuant to the consulting agreement, of a corporate credit card to be used in respect of expenses incurred in the performance of consulting services where the expenses incurred on the corporate credit card were not in respect of expenses incurred in respect of the performance of consultancy services under the consulting agreement. 1. Against that background, paragraph 22(b) of the Defence asserts, without admission, that, in so far as, and to the extent that it may be found that the matter complained of was published of and concerning Mr King and is defamatory of him, the matter complained of carried the following further imputations, each of which is substantially true: [Mr King] conducted himself in such a corrupt manner so as to make him unfit to hold the office of CEO of a large international company [contextual imputation 1A]. [Mr King] has engaged in serious corporate misconduct with respect to [Leighton's] international empire [contextual imputation 2]. The Decision of the Primary judge 1. Mr King objected to contextual imputation 1A and contextual imputation 2 (the impugned imputations) on the ground that they were bad in form. On 8 September 2014, the primary judge ordered that the impugned imputations be struck out. In her reasons published on that day, the primary judge recorded that Mr King's objection was that each of the impugned imputations was insufficiently precise and specific to avoid confusion in relation to the meaning contended for. Her Honour said that precision is an undoubted requirement of the imputations relied upon by a plaintiff and that the appropriate degree of precision in any particular case is a judgment that will usually be made by reference to considerations of practical justice, rather than philology. Her Honour accepted that no less precision and specificity is required for a defendant's contextual imputation than for a plaintiff's imputations. 2. The primary judge rejected the submission by Fairfax that, in light of the number and variety of general references to corruption in the matter complained of, no further refinement of the allegation of corrupt conduct was possible in a contextual imputation. Her Honour considered that the breadth of the range of conduct referred to in the matter complained of accentuated, if anything, the practical unfairness of allowing contextual imputations in such general terms to stand. 3. In relation to contextual imputation 1A, her Honour considered that the range of conduct potentially attributed to Mr King by the matter complained of was so broad that imputations alleging his unfitness to hold the office of chief executive officer, without any further specification, failed to put him on notice of the case he will have to meet and had the potential to cause confusion, both at the interlocutory stage and at the trial. Further, the primary judge found it difficult to see contextual imputation 1A as being supported otherwise than by inference from Mr King's more specific imputations and concluded that it was impermissibly imprecise. 4. In relation to contextual imputation 2, her Honour considered that, while the phrase "serious corporate misconduct" was drawn, in terms, from the matter complained of, that that did not relieve Fairfax of the obligation "to distil the defamatory sting". [1] Her Honour concluded that the phrase lacked sufficient specificity. The Application for Leave 1. By summons filed on 8 December 2014, Fairfax seeks leave to appeal from that part of the orders made by the primary judge on 8 September 2014 by which her Honour struck out contextual imputation 1A and contextual imputation 2. In its draft notice of appeal filed with the summons, Fairfax asserts that the primary judge erred in holding that contextual imputation 1A was impermissibly imprecise and that contextual imputation 2 lacked sufficient specificity. It asserts that her Honour misapplied principles stated in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137. 2. Mr King foreshadowed, by draft notice of contention filed on 16 February 2015 that, if leave to appeal were granted, he would contend that the decision of the primary judge should be affirmed on the ground that the impugned imputations ought to be struck out by reason of their not arising in addition to the imputations pleaded by him in the Statement of Claim, as required by s 26 of the Defamation Act. However, he did not press that matter on the hearing of the application. 3. The impugned imputations are very general. The Defence relies on the particulars in paragraphs 23.1 to 23.3 and 23.44 to 23.59 in support of the truth of contextual imputation 1A that Mr King conducted himself in such a corrupt manner as to make him unfit to hold the office of chief executive officer of a large international company. The Defence relies on the particulars in paragraphs 23.1 to 23.59 in support of the truth of contextual imputation 2 that Mr King engaged in serious corporate misconduct with respect to the international empire of Leighton. 4. Clearly enough, the matter complained of makes general allegations, at least arguably concerning Mr King, of corruption and misconduct beyond the specific allegations as to bribery and kickbacks and other related specific misconduct described in it. The question is whether Fairfax has, by the expression of those general allegations in the impugned imputations, captured the allegations with sufficient precision. Relevant Principles 1. Rule 14.30 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) relevantly provides that a statement of claim seeking relief in relation to the publication of defamatory matter must specify each imputation on which the plaintiff relies. Rule 14.33 of the UCPR relevantly provides that a defence under s 26 of the Defamation Act is sufficiently pleaded if it specifies one or more imputations on which the defendant relies as being contextual to the imputation in question and alleges that each contextual imputation on which the defendant relies was substantially true. The rules in each case provide that the defence must specify each contextual imputation. 2. There is no reason to conclude that less precision and specificity is required of a defence pleading a contextual imputation than is required in a statement of claim pleading an imputation, as is confirmed by the fact that r 14.31(1) requires a defendant to "plead any defamation defence specifically". Thus, in the present case, each of the impugned imputations must satisfy the same requirement for specificity as would apply to the pleading of an imputation in the Statement of Claim. [2] 3. To make an "imputation" concerning a person is to attribute some act or condition to that person. That is to say, to make an imputation concerning a person is simply to make a statement concerning that person. [3] The requirement that a pleading must specify the act or condition that is alleged to be attributed to a plaintiff, being the statement alleged to have been made about the plaintiff, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case, a judgment needs to be made as to the degree of particularity or generality that is appropriate to the occasion and as to what constitutes the necessary specificity. The solution to any problem in that regard will normally be found in considerations of practical justice rather than philology. With certain forms of defamation, the reader or hearer may be left with a powerful impression that the person about whom the statements are made is (for example) a scoundrel, but may find it very difficult to discern precisely what it is that the defamed person is said to have done wrong. [4] The central principle in Drummoyne Municipal Council v Australian Broadcasting Corporation relied on by Fairfax is that the requirement to specify the imputation, being the act or condition that is said to be attributed to the plaintiff, "cannot go beyond doing the best that can reasonably be done in the circumstances". [5] 4. The question of specificity is ordinarily one to be resolved by considerations of practical justice in the circumstances of the particular case, rather than considerations of the possibility of linguistic refinement. The issue 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 pleader contends. [6] 5. The degree of specificity required will depend on the nature and content of the defamatory matter. Where, for example, a newspaper billboard reads "Govt's War on Corrupt Judges", an imputation that the plaintiff was a corrupt judge has sufficient specificity, provided that it is clear that the billboard refers to the plaintiff. If there is a deficiency of specificity by reason that the imputation as pleaded lacks clarity, because the word "corrupt" is ambiguous, that deficiency flows naturally from the material published (since the defendant publisher used the word "corrupt"). Provided that it is clear that the billboard refers to the plaintiff, there can be no argument but that the billboard is describing the plaintiff as "a corrupt judge". There is no want of specificity because of the nature and content of the defamatory matter. [7] 6. The word "corrupt" can have significantly different shades of meaning, depending upon the context. For example, it can mean that a person takes bribes, or that he abuses power entrusted to him, or that he improperly obtains private benefits from a public position. [8] If it is possible to discern certain particular forms of misconduct that might be said to be attributed to a plaintiff by the matter complained of, it may be possible to be specific as to the forms of corruption that are said to be imputed to the plaintiff. However, unless the pleading is specific, there may be confusion in relation to the meaning for which the plaintiff contends. [9] Difficulty can arise from the fact that an examination of the detail of the matter complained of may disclose that there are various significantly different forms of corruption that could possibly be taken from it. [10] The Parties' Contentions Fairfax 1. Fairfax contends that, in holding that the breadth of the range of conduct referred to in the matter complained of accentuates, if anything, the practical unfairness of allowing imputations in such general terms to stand, the primary judge failed correctly to apply the principle that the pleader cannot go beyond doing the best that can be reasonably done in the circumstances. In particular, Fairfax submits that the trial judge, in effect, impermissibly took into account considerations of the "fairness" of raising a general contextual imputation in response to a specific imputation pleaded by a plaintiff. It says that, in light of the general references to corruption in the matter complained of, it is not possible to refine further the allegation of corrupt conduct in contextual imputation 1A and that the matter complained of makes general, non-specific, allegations of corruption that it cannot further refine, doing the best that it can. Thus, Fairfax asserts, the essence of a number of passages in the matter complained of is that, on their face, they travel well beyond specific allegations relating to bribery or kickbacks, related criminal offences and related cover-ups that are also included in the matter complained of. It says that her Honour erred in saying that it is difficult to see contextual imputation 1A as being supported otherwise than by inference from the more specific imputations alleged by Mr King in the Statement of Claim. 2. Fairfax points to the following passages contained in the matter complained of that it says make unspecific allegations in relation to corruption and serious corporate misconduct (emphases added): * that "bribery, corruption and cover-ups in Leighton Holdings' international empire were rife and known to company executives and directors" and then dealing with what was meant by the references to "bribery" and "cover-ups", but not specifying what constituted "corruption" and what was "rife"; * that certain "files expose plans to pay alleged multimillion-dollar kickbacks in Iraq, Indonesia, Malaysia and elsewhere, along with other serious corporate misconduct"; * that Leighton was advised that it was exposed in Asia "to allegations of conflict of interest, kickbacks, unethical staff appointments and so on"; * that the above allegations "indicate a serious breakdown of probity, governance and ethics within Leighton's Asian operations"; and * that "Leighton withheld the Stewart memo [which made allegations about kickbacks having been paid], along with other files detailing corruption, from authorities …". 1. Fairfax says that, once it is accepted that the matter complained of has the capacity to convey the impugned imputations, and that contextual imputation 1A was reasonably capable of arising from the matter complained of, it is not sustainable to suggest that it was "too imprecise". It contends that the primary judge confused a general imputation, on the one hand, and an imprecise imputation, on the other. It says that, if a general imputation is capable of being conveyed, it is not, simply by virtue of its generality, imprecise. 2. The primary judge concluded that the range of conduct potentially attributed to Mr King in the matter complained of is so broad that imputations alleging his unfitness to hold the office of chief executive officer, without any further specification, fail to put him on notice of the case he will have to meet and have the potential to cause confusion, both at the interlocutory stage and in the trial. Fairfax asserts that her Honour erred in that conclusion because the "range" of conduct referred to in the matter complained of was irrelevant to the question before her Honour. It says that the reference to the "range" of conduct was a reference to the specific allegations contained in the matter complained of, but the whole point about the general imputation of corruption, which was arguably conveyed, was that it was not to be confined to the scope of those specific allegations. 3. Fairfax says that no further refinement of the general allegation of corruption in the matter complained of was possible. It asserts that where, as in a case such as this, a general imputation is arguably conveyed and is not capable of further refinement, it is a distraction to talk about the extent to which the plaintiff might be on notice of the case that he will have to meet. Fairfax says that the only thing that can properly be required is to insist on full particulars of truth being given. It says that the Defence satisfies that requirement and that, in the light of those particulars, there is no scope for confusion and her Honour did not identify any confusion that is seriously likely to arise. It contends that there is no confusion in relation to the meaning for which it contends in the contextual imputations, either at the pleading stage or at any trial. 4. Fairfax asserts that it has made its position clear that the meaning of contextual imputation 1A is that Mr King, in a general and non-specific way, conducted himself in a corrupt manner to an extent that made him unfit to hold the office of chief executive officer of a large international company. It asserts that, if an imputation is conveyed in its generality, then by definition, it will not be capable of further refinement. 5. The primary judge held that the fact that the phrase "serious corporate wrongdoing" in contextual imputation 2 is drawn from the material complained of did not relieve Fairfax of the obligation to "distil the defamatory sting". Fairfax also asserts that her Honour erred in that holding because it is not the law that a general imputation that is reasonably capable of being conveyed "fails to distil a defamatory sting". Again, Fairfax asserts, her Honour confused a general imputation, on the one hand, and an imprecise imputation, on the other: if a general imputation is capable of being conveyed then it is not, by virtue of its generality, imprecise. 6. Fairfax says that it has done the best that can reasonably be done in the circumstances. It complains that her Honour failed to address the question of whether the general imputation encapsulated in contextual imputation 2 was reasonably capable of further refinement. It asserts that it was not. 7. Fairfax asserts that there is a reasonably clear case of error, such that injustice may be done if the impugned imputations are not permitted to stand. It claims that it has been deprived of an arguable defence by being precluded from pleading general imputations that are reasonably capable of arising from the matter complained of. It asserts that it is preferable for the errors that it claims to have identified to be corrected at this stage of the proceedings, rather than to await the result of a jury trial and the potential for the matter to be sent back for a further trial. Mr King 1. Mr King complains that contextual imputation 1A fails to specify the conduct that is corrupt, in circumstances where the word "corrupt" may have significantly different shades of meaning. He says that imputations that fail to specify properly the corrupt conduct ought not to be allowed to stand unless the matter complained of does not permit greater specificity. Otherwise, he says, imputations of the kind in question are likely to cause confusion, both at the pleading stage and at the trial. 2. Mr King points to the assertion by Fairfax that it has made its position clear that the meaning of contextual imputation 1A is that Mr King "in a general and non-specific way" conducted himself in a corrupt manner to an extent that made him unfit to hold the office of the chief executive officer of a large international company. He says that that is precisely what Fairfax should not be permitted to do and that, having published the matter complained of, which makes multiple charges of corruption, Fairfax is obliged to plead imputations that appropriately specify the species of corruption alleged. 3. Mr King also complains that the concept of "unfit to hold the office of chief executive officer" is imprecise, in that there is no specification of the conduct that allegedly makes him unfit, nor of the sense in which he is said to be unfit. For example, it might be asserted that he was "unfit" on account of legal or moral breaches or by reason of some other standard, but nothing is specified. He says that a relevant issue is the scope of the range of conduct that could be relevant to the issue of unfitness and that, even on the face of the matter complained of, which contains a detailed and lengthy analysis and attack, the range of possible conduct is enormous. 4. In relation to contextual imputation 2, Mr King complains that the concept of "serious corporate misconduct" is no more precise than "corrupt conduct". He complains that contextual imputation 2 does not specify the misconduct alleged or what acts or omissions constitute the misconduct or whether the references to misconduct are in the sense of legal misconduct or moral misconduct. 5. Mr King acknowledges that the words "serious corporate misconduct" appear in the opening paragraphs of the matter complained of. However, he says, they appear in the context of a reference to internal company files that allegedly show "plans to pay alleged multimillion-dollar kickbacks in Iraq, Indonesia, Malaysia and elsewhere, along with other serious corporate misconduct": the matter complained of then descends into a lengthy exposition including numerous examples of alleged "serious corporate misconduct". He complains that there is no attempt by Fairfax to distil any meaning and that it is inappropriate for the contextual imputations simply to repeat the language of the matter complained of without "pleading a proper sting". He says that the contention by Fairfax that it has done the best that can reasonably be done in the circumstances, in terms of specificity, must be rejected. He says that, while Fairfax may prefer not to refine the impugned imputations and may prefer (for forensic reasons) to maintain as much generality as possible, there is no doubt that they could be made more precise, and, accordingly, the primary judge did not err in striking them out for want of specificity. Consideration 1. The distinction to be drawn in this case is not between an imputation that is general, on the one hand, and one that is specific, on the other hand. Rather, the relevant distinction is between an imprecise imputation and a specific imputation. In the case of State of New South Wales v Deren, [11] to which both parties made reference, the plaintiff brought proceedings based on the publication of a specific allegation of wrongdoing, namely sexual assaults on young children attending a particular Sydney kindergarten. The defendant raised as a defence the contextual imputation that the plaintiff was a child molester, which imputation the Court held should have been left to the jury. The difference between an imputation that the plaintiff is a child molester (or that a plaintiff is dishonest [12] ), on the one hand, and an imputation that a plaintiff is "corrupt" or has engaged in "serious corporate misconduct", on the other hand, is that in the former cases it is clear what the act or condition is that gives rise to the imputation. In the latter cases, given the range of possible conduct to which the imputation may be making reference, it is not. 2. Some epithets may fairly arise from a specific instance. Thus, if a person is alleged to have committed a murder, the epithet "murderer" may well flow from that specific instance. However, the epithets applied to Mr King, of having conducted himself in a corrupt manner and of having engaged in serious corporate misconduct, are of such a nebulous character that specific instances of conduct that might constitute corruption or corporate misconduct do not necessarily justify the imprecise epithet. The particulars of truth set out in the Defence do not themselves necessarily lead to the epithets in question. It might be one thing if the contextual imputations alleged were that Mr King had engaged in the conduct specified in paragraphs 23.1 to 23.59 of the Defence (or, if the contextual imputations were more general but precise, such as that "Mr King approved bribes"). However, there is no necessary direct connection between the allegations made in those paragraphs and the impugned imputations. The requirement of precision in the formulation of a contextual imputation is that "facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship both to the contextual imputation itself and to the published material relied on by the plaintiff". [13] 3. I am not persuaded that the primary judge erred in concluding that impugned imputations are capable of further refinement. In the circumstances, I would refuse leave to appeal from the orders of the primary judge striking out contextual imputation 1A and contextual imputation 2. The fact of the striking out of those imputations, however, would not preclude Fairfax from seeking to plead contextual imputations with greater specificity. That would be a matter for the primary judge. 4. The application for leave to appeal should be dismissed, and costs should follow the event. Counsel for the applicants sought to be heard on the costs relating to the respondent's draft notice of contention, which was abandoned at the hearing, in the event that the applicants were unsuccessful on the leave application. The applicants had dealt with the matters arising in the draft notice of contention in their written submissions filed on 24 March 2015. Subject to any further submissions made to the Court concerning the notice of contention, the orders as to costs should be as follows: 1. The applicants pay the respondent's costs of the application for leave to appeal, excluding the costs of the draft notice of contention filed by the respondent on 16 February 2015. 2. The respondent pay the applicants' costs of the notice of contention. 1. LEEMING JA: I agree with Emmett JA. ********** Endnotes 1. Citing Waller v Nationwide New Pty Ltd [2011] NSWSC 611 at [15] to [22]. 2. See Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [32]-[34]. 3. Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; 134 CLR 1 at 10. 4. Drummoyne Municipal Council v Australian Broadcasting Corp (1990) 21 NSWLR 135 at 137. 5. Ibid. 6. Ibid at 138. 7. See John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 at 726. 8. Drummoyne Municipal Council v Australian Broadcasting Corporation at 138. 9. Ibid at 140. 10. Ibid. 11. [1999] NSWCA 22; Aust Torts Reports ¶81-502. 12. Nationwide News Pty Ltd v Warton [2002] NSWCA 377. 13. Australian Broadcasting Corporation v Hodgkinson at [34]. Amendments 24 June 2015 - [5] bullet points 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: 24 June 2015