Supreme Court New South Wales Medium Neutral Citation: Jones v TCN Channel Nine Pty Limited (No 2) [2015] NSWSC 1854 Hearing dates: 21 November 2014; 5 December 2014; 20 February 2015 Date of orders: 08 December 2015 Decision date: 08 December 2015 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff granted leave to withdraw concession made during argument as to the contextual truth defence; imputations (d) and (e) struck out with leave to re-plead those imputations as one and to re-plead imputation (b); costs reserved. Catchwords: DEFAMATION – pleadings – problems caused by complexity – extent of the Court's authority and ability to force simplicity on the parties – where plaintiff had previously made a concession aimed at simplifying the issues in the proceedings – where subsequent argument brought forward by different counsel for defendants revealed unfairness to plaintiff of being held to the concession Legislation Cited: Civil Procedure Act 2005 (NSW) Defamation Act 2005 (NSW), s 26 Uniform Civil Procedure Rules 2005 (NSW), rr 14.8; 14.28 Cases Cited: Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 El Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816 Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 Fairfax Media Publications Pty Ltd v Kermode [2011] [2011] NSWCA 174; 81 NSWLR 157. Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 Grubb v Bristol United Press Limited [1963] 1QB 309 Heath v Fairfax Media Publications Pty Ltd [2011] NSWSC 742 Jones v TCN Channel Nine Pty Limited [2014] NSWSC 1453 Mayfield-Smith v Mirror Newspapers Ltd (1982) 2 NSWLR 419 Category: Procedural and other rulings Parties: Dane Charles Jones (plaintiff) TCN Channel Nine Pty Lt (first defendant) Nine Network (Australia) Pty Ltd (second defendant) Ninemsn Pty Ltd (third defendant) Tim Arvier (fourth defendant) Representation: Counsel: S Chrysanthou and later K Smark SC (plaintiff) M Richardson and later B McClintock SC (defendants) Solicitors: Kalantzis Lawyers (plaintiff) Johnson Winter & Slattery (defendants) File Number(s): 2014/86408 Publication restriction: None Judgment 1. HER HONOUR: These proceedings have had a tortuous history. The interlocutory steps initially proceeded smoothly enough. The action was commenced by statement of claim filed on 21 March 2014 (not served until 26 June 2014). The defendants raised objections to the form of that pleading but those objections were resolved by agreement. A defence was filed on 12 September 2014. 2. The defence reflected a degree of ambivalence as to the meaning of the imputations specified by the plaintiff. A defence of truth was pleaded but only to one of the eleven imputations pleaded in the statement of claim. The principal defence was a defence of contextual truth which specified 13 contextual imputations. Ten of those mirrored the plaintiff's imputations but with a factual difference in the description of the plaintiff (the contextual imputations describe him as the general manager of a particular business, which he was; the plaintiff's imputations attribute him with ownership of that business). 3. Recognising the subtlety of the difference between the plaintiff's imputations and those ten contextual imputations, the defendants pleaded the same ten imputations, in the alternative, as "Hore-Lacy" meanings: David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; 1 VR 667. Whereas a contextual imputation must differ in substance from each of the plaintiff's imputations, the premise of a Hore-Lacy pleading is that the alternative meanings specified by the defendant do not differ in substance from the plaintiff's imputations. Both propositions cannot be true at the same time; the defendants' imputations either differ in substance from the plaintiff's or they do not. The alternative pleading sought (not inappropriately) to address both possibilities. 4. However, between the time when the defence was filed and the time when the plaintiff's objections to it were argued, I held (in another case) that a Hore-Lacy pleading makes no sense in this State, since the question traditionally posed for the jury is whether the plaintiff has proved that each imputation specified by him, or any imputation that does not differ in substance from it, is conveyed. I held, on that basis, that alternative meanings pleaded by a defendant have a tendency to cause prejudice, embarrassment or delay in the proceedings and so should be struck out pursuant to r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW): Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 (subsequently upheld by majority in Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 at [222] per Basten JA; Macfarlan JA agreeing at [230]; McColl JA contra at [113]). 5. Accordingly, when the plaintiff's objections to the defence were argued on 17 October 2014, Mr Richardson, then appearing for the defendants, conceded that the Hore-Lacy pleading should be withdrawn. That of course does not preclude the defendants from seeking to argue, at trial, that the plaintiff's imputations are substantially true on the basis identified in that pleading. 6. Separately, however, counsel for the plaintiff embraced the premise of that pleading, arguing that the alternative meanings specified by the defendant did not differ in substance from the plaintiff's imputations. She made a concession to that effect, as a result of which the defendants decided not to press most of the contextual imputations specified in the defence. It will be necessary to return to that concession. 7. On 24 October 2014, I determined the remaining objections to the defence: see Jones v TCN Channel Nine Pty Limited [2014] NSWSC 1453. The defendants were granted leave to amend their defences in accordance with that judgment and the matters agreed between the parties within 14 days. 8. The defendants did not amend their defence but instead, with the benefit of advice from senior counsel who had not previously appeared in the proceedings, revisited their position in respect of the statement of claim, raising new objections to the plaintiff's imputations. 9. The next listing of the proceedings opened with a Monty Pythonesque exchange: HER HONOUR: There is an imputations argument. CHRYSANTHOU: We don't think there is. McCLINTOCK: We do, your Honour. CHRYSANTHOU: We would like to raise that with your Honour. HER HONOUR: There is an argument about whether there is an argument? CHRYSANTHOU: Yes. HER HONOUR: How long will that preliminary argument take? McCLINTOCK: I imagine that will take about five minutes, your Honour. CHRYSANTHOU: Seven minutes. HER HONOUR: How long will the six minute argument then lead into, if I determine that there is an argument? 1. The matters argued that day prompted me to inquire whether the plaintiff needed to revisit the concession made during the course of argument in respect of the contextual truth defence (since it appeared to me that the argument put on behalf of the plaintiff in opposing the new objections was inconsistent with that concession). The parties' competing positions on that issue evolved over two further listings and a further round of written submissions during which some interlocutory bushfires were stamped out while others continued to blaze. This judgment determines the remaining issues between the parties argued at those further hearings. Too many imputations 1. In his dissenting judgment in Drummoyne Municipal Council v Australian Broadcasting Corporation, Kirby P (as his Honour then was) expressed the view that defamation procedure, including pre-trial applications, had become unduly and unnecessarily complex: (1990) 21 NSWLR 135 at 149E. As his Honour observed, with complexity comes delay and expense outweighing the utility gained. Those observations were made almost exactly 25 years ago, before the introduction of the Defamation Act 2005 (NSW), with its object to promote "speedy and non-litigious methods of resolving disputes about the publication of defamatory matter", and the Civil Procedure Act 2005 (NSW), with its overriding purpose to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 2. The President's remarks reflected a concern for the plight of plaintiffs (see 149E to 152C); the burden of excessive complexity is also felt by defendants: cf El Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816 at [14]. His Honour wished to send "a clear message to the judges conducting the Defamation List" that "excessive precision" in pleading in defamation actions is to be avoided. Expressed in those terms, that is a self-evident proposition but it is a mandate of elusive content as perhaps revealed by the fact of its expression in a dissenting judgment; the other members of the Court (Gleeson CJ and Priestley JA) considered the degree of precision that had been insisted upon by Hunt J (as his Honour then was) in that case to be appropriate. 3. The first of the defendants' new objections is that the plaintiff in this case has pleaded too many imputations. As already noted, eleven imputations are specified in the statement of claim, as follows: 1. The plaintiff has so conducted the business of NRE Electrics by ripping off customers that no consumer should ever deal with him in future; 2. The plaintiff is the business partner of Nick Ray, who is being hunted by police and on the most wanted list for Consumer Affairs for ripping off customers; 3. The plaintiff, through his business NRE Electrics, has ripped off 50 people; 4. The plaintiff, through his business NRE Electrics, has fraudulently taken $600,000 of people's money; 5. The plaintiff is a conman in that he scams vulnerable and innocent customers of his electrician business NRE Electrics out of their money; 6. The plaintiff is a despicable person in that, through his business NRE Electrics, he rips off families and the elderly; 7. The plaintiff misappropriated $15,000 of Robin Rouse's money through his business NRE Electrics by promising to install a new electricity system in her home and never completing the work; 8. The plaintiff sent threatening messages to Demi in order to stop the A Current Affair story about him going to air; 9. The plaintiff had used unfairly high pressure sales tactics against customers of his business NRE Electrics; 10. The plaintiff had so conducted himself by ripping off customers of his business NRE Electrics that he is being investigated by police; 11. The plaintiff had so conducted himself by ripping off customers of his business NRE Electrics that Gary Clements from Consumer Affairs is determined to put him out of business. 1. Mr McClintock SC, who argued these matters on behalf of the defendants, submitted that so great a number of imputations of itself has a tendency to cause prejudice or delay in the proceedings and is an abuse of process: UCPR, r 14.28; see also r 14.8 ("a pleading must be as brief as the nature of the case allows"). Mr McClintock recalled that, when Hunt J was the Defamation List judge, his Honour would "invite the plaintiff's counsel to select their best five imputations and, if that invitation was not accepted, decline to set the matter down for hearing until it was". His Honour openly discouraged the proliferation of imputations "with or without the aid of Roget's Thesaurus": Grubb v Bristol United Press Limited [1963] 1 QB 309 at 329. 2. Mr McClintock went so far as to suggest that the proliferation of imputations in the present case reflected a practice (for which he thought Mr Evatt would be content to claim responsibility) of presenting a large number of imputations to the jury with the object of inciting such prejudice against the publisher (or at least sympathy for the plaintiff) that at least one imputation would succeed. He submitted that is an approach which places an intolerable burden on the jury and one which should not be permitted in modern litigation. Mr McClintock said "there is no case where the plaintiff cannot fairly put his case with a maximum of six imputations". 3. The minimalist approach "invited" by Hunt J has much merit. However, for two reasons, I do not think it can be enforced. First, it is doubtful whether even the robust authority conferred by the Civil Procedure Act extends to the specification of a numerical limit on the number of meanings that can be sued on. Secondly, I apprehend that the proliferation of plaintiffs' imputations in proceedings in this List is a direct reaction to the operation of the defence of contextual truth under s 26 of the Defamation Act. Two features of the defence are significant in the present context. The first is that a contextual imputation must be an "other" imputation carried "in addition to" the imputations complained of by the plaintiff. The second is that a defendant may not "plead back" the plaintiff's imputations: Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; 81 NSWLR 157. 4. The combination of those features of the defence has created a natural contest for imputations; if a plaintiff pleads every meaning that can be distilled from a publication there will be no imputation available to be pleaded as a contextual imputation. 5. Mr McClintock's submissions acknowledged that the course taken in the present case (ie, of pleading imputations which cover the field of defamatory meaning of the matter complained of) reflected that imperative but appeared to suggest that it would nonetheless be an abuse of process to plead a comprehensive set of imputations for the purpose of precluding a contextual truth defence. 6. It is difficult to see how counsel can fairly be criticised for pleading a plaintiff's case in such a way as to forfend or guard against a statutory defence; certainly, I do not think it is within my authority to enforce a different approach. Capacity 1. The second objection raised by the defendants is that imputations (c) and (d) are incapable of arising. The basis for that contention is that the part of the matter complained of said to give rise to those imputations is squarely directed at Nick Ray, described in the matter complained of as the plaintiff's business partner. 2. In my view, the arguments put on this issue are matters for the jury's consideration; they do not establish a basis for striking out those imputations. As submitted by Ms Chrysanthou, the overall impression created by the broadcast is that the plaintiff and Mr Ray were in business together and that each participated in the misconduct reported. The accusations put to Mr Ray in the particular exchange giving rise to the imputations are at least capable of being understood to have been directed at both Mr Ray and the plaintiff. Whether they were is a question for the jury. 3. Separately, there was a submission that imputation (b) was incapable of being defamatory. Mr Smark SC, who appeared for the plaintiff on the last occasion these matters were before the Court, indicated that he would not press that imputation but sought leave to re-plead it, which was not opposed by the defendant. That imputation will be struck out with leave to re-plead. Difference in substance 1. The third new objection was that imputations (e) and (f) do not differ in substance. 2. Mr McClintock noted that each imputation is alleged to arise from identical passages of the matter complained of. The two imputations do appear to me to carry effectively the same attribution and should not both stand. The plaintiff should have leave to re-plead those imputations as one. Imprecision and surplusage 1. The fourth new objection raised the issue which brought into question the correctness or wisdom of the plaintiff's concession made during argument in respect of the contextual truth defence. The difficulty arises from the fact that the matter complained of attributes the plaintiff with ownership of the business of NRE Electrics. It is common ground that that was wrong. The plaintiff was an employee of the company owned by Mr Ray, who was the primary target of the broadcast. Unsurprisingly, the formulation of the imputations, and of the contextual imputations argued in the first round of argument, has focused on that issue. 2. In the statement of claim, the plaintiff has specified imputations (a) to (k). As already noted, imputation (b) is no longer pressed. Of the remaining ten imputations, all but one (imputation (a)) include the phrase "through his business NRE Electrics" or otherwise refer to "his business NRE Electrics". 3. As already explained, the defendants (presumably recognising that they would be unable to prove that the business of NRE Electrics is Mr Jones's business) sought in their defence to meet each of those imputations with an imputation in practically identical terms to each of the plaintiff's imputations, the only difference being that in each case the attribution of ownership of the business is substituted with a description of the plaintiff as the general manager of the business. The result was to produce what would, for both parties, have been a cumbersome collection of issues for determination by the jury at trial. In what I have no doubt was a genuine attempt on the part of both junior counsel to simplify the issues in the proceedings, the proposition that it made no real difference to the sting of the imputations whether the plaintiff was attributed with ownership or management of the business was embraced by both, reflected in the concession made on behalf of the plaintiff and the withdrawal by the defendants of those ten contextual imputations. Of the remaining three contextual imputations, one was abandoned and two were struck out in my earlier judgment, leaving a happily simple case in which arid debate about defamatory meaning would be set aside so that truth was the battleground. 4. The defendants now object to the inclusion in the plaintiff's imputations of the words "his business NRE Electrics" and "through his business NRE Electrics". It was submitted that those words are mere surplusage, since they make no difference to the sting, and that they should accordingly be struck out in accordance with the principles explained by Hunt J in Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419. 5. There were two dimensions to the argument. First, it was submitted that it makes no difference what business was used as the vehicle for ripping people off (ie, whether that occurred through NRE Electrics or some other business). Upon analysis, that amounted to an argument that the plaintiff can be forced to plead his imputations at a higher level of generality than he has chosen to, presumably so as to enable the defendants to explore whether he has engaged in conduct of the kind specified in the imputations in other businesses unrelated to the business of NRE Electrics. The simple fact is that the matter complained of deals with conduct relating to NRE Electrics. The identification of that business as the vehicle for the conduct simply reflects what the broadcast said. I do not accept that it is embarrassing surplusage. 6. Secondly, it was submitted that it makes no difference whether people were ripped off through "his" business or "a" business (the ownership issue). Mr McClintock went so far as to characterise the inclusion of reference to ownership of the business as "an obvious and disingenuous pleader's trick", since it would enable the plaintiff at trial to argue that the imputations are false on the sole ground that NRE Electrics was not his business. At the same time, I think inconsistently, Mr McClintock asserted that the concession made on behalf of the plaintiff on the earlier occasion (that it made no difference to the sting of the imputation whether the plaintiff was attributed with ownership of the business or merely with being its general manager) was factually wrong. 7. This aspect of the objection raises two issues: first, whether the role attributed to the plaintiff (that of owner or general manager) is capable of affecting the sting of the imputations specified by the plaintiff and, secondly, if so, whether the plaintiff should nonetheless be bound to adhere to his concession to the contrary. 8. Ultimately, after some toing and froing, the parties agreed that the plaintiff should be permitted to withdraw the concession, leaving an argument only as to costs. It is tempting to override them on that issue so as to retain the attractive simplicity achieved by junior counsel in the first round of argument. Unfortunately, I am compelled to the conclusion that it would not be fair to the plaintiff to do so since, in my view, the capacity in which various conduct is attributed to the plaintiff is capable of affecting the defamatory sting. Whether ultimately there is a difference in fact will turn on the evidence led at trial. The position is, in my view, quite different from the circumstances in either Mayfield-Smith or the other authority referred to by Mr McClintock, Heath v Fairfax Media Publications Pty Ltd [2011] NSWSC 742. The reference to the business as "his business" is not merely descriptive of the business; it characterises the plaintiff's role in the conduct identified. 9. It follows inexorably, in my view, that this new objection to the imputations must be rejected. The matter complained of is plainly capable of attributing the plaintiff with having acted in the capacity of an owner of the business rather than merely as an employee. That emerges from the description of him at paragraph 19, "Nick Ray and his business partner Dane Jones, together they run NRE Electrics" and at paragraph 41, "Gary Clements from Consumer Affairs is out to bring down both Nick Ray and business partner Dane Jones". 10. Mr McClintock submitted that the price of the plaintiff's being permitted to withdraw the concession must be an order that he pay the defendants' costs of various hearings, such costs to be assessable forthwith and on an indemnity basis. I am not persuaded that is the appropriate order at this stage. The concession sought to simplify the case. It subsequently appeared untenable only when objections were raised which should have been raised before the occasion arose for making the concession at all. Further, it may be noted that the defendants themselves pleaded the Hore-Lacy meanings on a premise consistent with the terms of the concession. 11. Mr Smark submitted that in any event the question of costs should be reserved until the consequences of withdrawal of the concession are known (after the pleadings close). It was submitted in that context that the contextual imputations previously withdrawn will not be permitted in any event because they do not satisfy the test of being "other" imputations. That submission was made before the decision of the Court of Appeal in Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329 and will have to be revisited. In any event, in my view, the appropriate course is to reserve the costs occasioned by the withdrawal of the concession as suggested by Mr Smark. 12. A separate aspect of the objection was the contention that the meaning of the phrase "his business" and the expression "through his business" is unclear and that those imputations should be struck out for ambiguity. 13. As to the phrase "his business", it was submitted that the words could mean a business wholly owned by the plaintiff; one in which the plaintiff had sufficient ownership to control it; one identified with him because he held a senior position in it or one in which he merely worked in a senior position. 14. In my view, this is a circumstance in which the defendants must live with the lack of precision in the words of their own publication. As already noted, the matter complained of identifies the plaintiff as Mr Ray's business partner and asserts that they run the company together. It further asserts that, as a result of the complaints canvassed in the programme, Consumer Affairs is out to bring them both down. The need to defend broadly expressed imputations in the present case arises from the looseness with which the corporate roles were described. 15. The second aspect of the argument as to ambiguity was the complaint that the meaning of the phrase "through his business" is unclear because it fails to specify what act the plaintiff actually carried out. I would also reject that submission. As submitted by Ms Chrysanthou, I think it is tolerably clear that the discreditable conduct described in the matter complained of is alleged to have been carried out by the two named men through the vehicle of the company. 16. For those reasons, I make the following orders in respect of the statement of claim: 1. Note that imputation (b) is not pressed; the plaintiff has leave to re-plead that imputation. 2. Imputations (e) and (f) are struck out with leave to re-plead a single imputation. 3. The plaintiff has leave to withdraw his concession made during argument to the effect that the attribution of ownership of the business makes no difference to the sting of the imputations. 4. I direct the parties to bring in short minutes of order with an agreed timetable for the filing of an amended statement of claim, an amended defence, any reply and a date for second listing. 5. The costs of the arguments determined in this judgment and in respect of the withdrawal of the concession are reserved pending the completion of the steps identified in order (4). ********** 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: 09 December 2015