Supreme Court New South Wales Medium Neutral Citation: Dominello v Harbour Radio Pty Limited t/as 2GB [2019] NSWSC 403 Hearing dates: 5 April 2019 Decision date: 11 April 2019 Jurisdiction: Common Law Before: Hoeben CJ at CL Decision: Application for leave to amend the Statement of Claim to include the contextual imputations is refused. Catchwords: DEFAMATION – practice and procedure – pleadings – application by plaintiff for leave to amend pleadings so as to include defendant's contextual imputations as one of the imputations of which the plaintiff complains – whether an abuse of process – discretionary considerations – application to amend refused. Legislation Cited: Civil Procedure Act 2005 (NSW) – s 70 Court Procedure Rules 2006 (ACT) – r 21 Defamation Act 2005 (NSW) – ss 8, 26, 30 Evidence Act 1995 (NSW) – s 75 Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175 Besser v Kermode [2011] NSWCA 174 Chel v Fairfax Media Publications Pty Limited [2015] NSWSC 171 Fairfax Digital Australia and New Zealand Pty Ltd v Kazal [2018] NSWCA 77; 97 NSWLR 547 Farrow v Nationwide News Pty Ltd [2017] NSWCA 246; 95 NSWLR 612 Holt v TCN Channel Nine Pty Limited [2014] NSWCA 90 Horton v Jones & Ors (No 2) [1939] NSWSR p 35; (1939) 39 SR (NSW) 305 YZ v Amazon (No 7) [2016] NSWSC 637 Texts Cited: Nil Category: Procedural and other rulings Parties: Victor Michael Dominello – Plaintiff Harbour Radio Pty Limited t/as 2GB – Defendant Representation: Counsel: T Molomby SC/R Rasmussen – Plaintiff S Chrysanthou – Defendant Solicitors: Etheringtons Solicitors – Plaintiff Banki Haddock Fiora – Defendant File Number(s): 2018/273731 Publication restriction: NIL JUDGMENT 1. HIS HONOUR: Factual background These proceedings were commenced by way of Statement of Claim filed on 6 September 2018. They concern a short news item broadcast a year earlier on 7 September 2017 by the defendant in these terms: "Finance Minister Victor Dominello has been referred to the corruption watchdog. The Herald reports that Mr Dominello has been accused of threatening and intimidating in order to have a 1400 unit development approved. It's claimed he pressured a local councillor by linking her party pre-selection with her vote on the development." 1. The plaintiff alleges that the broadcast carried the following imputations: 1. as a Minister in the State government he had behaved corruptly by using threats and intimidation to attempt to secure a benefit for a developer; 2. as a Minister in the State government he had abused his position by using threats and intimidation to secure the approval of a development; and 3. as a Minister in the State government he had used the influence of his position for the benefit of a developer. 1. The defendant filed a Defence on 14 December 2018 in which it pleaded truth, contextual truth, common law qualified privilege and offered to make amends. 2. In the Defence, the following three contextual imputations were pleaded as being substantially true (the contextual imputations): 1. the plaintiff, a Minister of the State government, had behaved corruptly by using threats and intimidation in relation to a development approval; 2. the plaintiff, a Minister of the State government, pressured a local councillor by linking the councillor's party pre-selection with that person's vote on a development; and 3. the plaintiff, a Minister of the State government, had so conducted himself as to warrant being referred to the corruption watchdog. 1. On 7 March 2019 (the evening before the Second Listing of the matter), the plaintiff informed the defendant that he wished to amend his Statement of Claim to plead the contextual imputations as part of his case. The defendant opposed the amendment. 2. The plaintiff relied upon the affidavit of Paul Martin Etherington, sworn 13 March 2019, (the Etherington affidavit). 3. The defendant relied upon the affidavit of Bruce Norman Burke, sworn 22 March 2019, (the Burke affidavit). 4. Mr Etherington deposed that at the time the Statement of Claim was settled, his counsel believed that the imputations contained therein adequately set out the key defamatory stings conveyed by the broadcast concerning the plaintiff. There was no other evidence adduced in support of the plaintiff's application to amend. 5. The Burke affidavit set out that on 8 September 2017, The Sydney Morning Herald had published an article under the by-line of Sean Nicholls, "'Threatened and intimidated': minister accused by deputy mayor" (the SMH article). A copy of the SMH article was annexed to the affidavit. Mr Burke deposed that as of 22 March 2019 the plaintiff had not commenced proceedings in respect of the SMH article. 6. Mr Burke deposed that he spoke to Cr Jane Stott concerning the events of 26 April 2017. Cr Stott advised that as of that date she was a Liberal Party Councillor on Ryde Local Council and that the plaintiff was then a member of the Legislative Assembly of the Parliament of New South Wales and the Finance Minister of the State. The Council was about to meet to consider a development application from Holdmark Property Group (the DA). 7. On that date, she received a telephone call from the plaintiff about the DA. The plaintiff was angry during the telephone call and was yelling. He told her to vote against the DA. He intimated that if she did not vote against the DA, the Liberal Party would not endorse her pre-selection. Cr Stott felt threatened and intimidated as a result of the plaintiff's telephone call. 8. Mr Burke spoke to Cr Bill Pickering, the Mayor and a member of the Liberal Party, concerning the events of 26 April 2017. Mr Burke was told by Cr Pickering that the plaintiff telephoned him. The plaintiff told him to vote against the DA. The plaintiff threatened that if he did not vote against the DA, the Liberal Party would not support his pre-selection at the next Council election. Cr Pickering said that he was so concerned about the telephone call by the plaintiff that he raised it with the NSW Planning Minister, Mr Anthony Roberts. 9. Mr Burke deposed that he was informed by Cr Pickering that the plaintiff also telephoned other Liberal Councillors on 26 April 2017. Cr Pickering told Mr Burke that a Labor Councillor on the Council had written to the Independent Commission Against Corruption (ICAC) regarding the conduct of the plaintiff on 26 April 2017. 10. The SMH article, annexed to the Burke affidavit, was expressed in the following terms: "Finance minister Victor Dominello has been referred to the corruption watchdog after being accused of "threatening and intimidating" the deputy mayor of Ryde, Jane Stott, by linking her Liberal party preselection to her vote on a 1400-unit development. Planning minister Anthony Roberts has also confirmed he was told about another call by Mr Dominello to Ryde mayor Bill Pickering, who sought legal advice over the contact. Mr Dominello, who is the member for Ryde, acknowledges he phoned Cr Stott, Cr Pickering and other Liberal councillors in April about a $143 million voluntary planning agreement with Holdmark Property Group to deliver affordable housing and community facilities. However, he argues that he was acting on concerns raised with him by the council's then acting general manager, Roy Newsome, about the project at Macquarie Park. Mr Newsome raised concerns with me that council officers did not support the Voluntary Planning Agreement because they did not have sufficient information to ascertain whether it was in the best interests of the community", he said. Cr Stott, who is standing as an independent at Saturday's Ryde council election after losing preselection and quitting the Liberal party, has made a Public Interest Disclosure to Mr Newsome about Mr Dominello's call. Public interest disclosures can be used by public officials to report serious wrongdoing. "I made the statement because I received a phone call from Victor Dominello in relation to a matter on the council agenda regarding Holdmark, " she said on Friday. "And I felt threatened and intimidated by that phone call in relation to my preselection". Cr Pickering, who also lost Liberal preselection and is running on the same independent ticket as Cr Stott, said he sought legal advice about Mr Dominello's phone call. "I did receive a call from Victor Dominello", he said. "I was concerned enough to report it to the legal counsel and to seek advice and that's where I left the matter." "As to whether I felt that my pre-selection was being threatened, I don't wish to comment because I don't want to get involved in any legal process." Mr Roberts – a friend and political ally of Cr Pickering's – was asked by Labor MLC John Graham during a budget estimates hearing on Friday whether he was aware of concerns about Mr Dominello's call. Mr Robert took the questions on notice. But he later confirmed to Fairfax Media that Cr Pickering had raised Mr Dominello's call with him on April 26. A spokesman for Mr Roberts said in a statement: "The minister received a phone call from a councillor. During the call the councillor raised certain concerns. "The minister advised the councillor to seek advice through the appropriate channels available at the council." Mr Pickering said that he phoned Mr Roberts "to express my concerns. He told me to seek advice from the appropriate person". Mr Dominello said he contacted the Ryde Liberal councillors about the planning agreement "given the concerns of both Mr Newsome and myself and my position against over-development". "Mr Newsome was concerned that councillors would move a notice of motion to prematurely support the VPA," he said. "I was concerned that the recommendation[s] of council officers in relation to this significant development were not being followed. "I recall contacting the Liberal councillors Bill Pickering, Jane Stott, Roy Maggio and Sarkis Yedelian expressing my concern that they would go against the Council Officers recommendations in relation to the VPA," he said. "I specifically recall saying to Bill if he supported the VPA against the recommendations of the Council Officers then that would be a 'line in the sand' and that I would lose confidence in him." However, he noted that he did not attend the Liberal preselection for Ryde Council on August 8. "Nor did I did vote or send a proxy," he said. Mr Newsome told Fairfax Media it was the minister who raised a separate Holdmark development at Meadowbank with him during a general discussion at the April 26 meeting at his Ryde electorate office. Mr Newsome said he mentioned the council was that night considering the Holdmark voluntary planning agreement "in the context of the matter the minister had raised". He agreed he had concerns about ensuring the community got the best possible benefit, but insisted: "I didn't activate it, I didn't advocate anything to be done". Mr Dominello said: "I accept he did not advocate anything to be done. But when a general manager expresses concerns about a billion dollar development and whether the community is getting value for money, I'm going to fight for the community. "I had a discussion with Cr Stott and put forward my views that I was strongly against the Holdmark development proposal being approved given the concerns raised by senior council officers. I also indicated that if she rejected the advice of council officers then she would need to justify that decision to the 50 odd pre-selectors and the broader community." Mr Dominello acknowledged that he lives in Meadowbank but insisted that whenever he had opposed the development this was disclosed. Mr Dominello added that he has "consistently and publicly joined with my community to campaign against overdevelopment in my electorate". Fairfax Media had confirmed that on Friday Labor Ryde councillor, Jerome Laxale, referred the matter to the Independent Commission Against Corruption. Mr Dominello said that he "absolutely welcomes it". "I look forward to the matter being referred to ICAC because I want to know why council rejected the advice of council officers to approve this VPA," he said. "What went on?"" 1. The plaintiff submitted that imputations are a lawyer's artefact and that they bore little relationship to real life. He submitted that an imputation is a tool used to assist the logical analysis of text and the operation of various defences to defamation. He submitted that in most cases it was artificial to try to apportion reaction in relation to individual imputations and that on occasions a single imputation affects a special sensitivity beyond others. 2. The plaintiff submitted that damages in defamation are awarded to compensate for a plaintiff's distress and damage to reputation. The latter is an objective assessment by the Court and quite independent of the plaintiff's attitude to the imputation. Accordingly, damages for loss of reputation could, at least in theory, be awarded in relation to an imputation which a plaintiff did not discern or of which he or she could not have been aware as possibly an imputation arising through extrinsic facts. 3. The plaintiff submitted that as a result of the Defamation Act 2005 (NSW) (the Act) there is a single cause of action for the publication of defamatory matter, however many imputations there might be (s 8). He submitted that it had never been suggested that pleaders should try to find every available imputation in a publication. Therefore, as a practical matter it was sufficient to articulate a group of imputations that captured the essential core of the defamation. He submitted that in almost every case, extra imputations could be created, usually by extending the imputations to a greater level of generality or by pleading imputations based on reasonable suspicion as well as by exploring fine nuances. 4. The plaintiff submitted that against that background, the Court of Appeal in Besser v Kermode [2011] NSWCA 174 (Kermode) had made it clear that a plaintiff might adopt contextual imputations pleaded by a defendant. In so deciding the Court of Appeal did not indicate that this would be a rare or exceptional course or subject to conditions different from any other amendment. 5. The plaintiff submitted that, while it was true that the adoption of contextual imputations prevents a defendant from relying on them as a defence, that is not the only effect of such an amendment. He submitted that a defendant who pleads a contextual imputation that is found to have been conveyed and to be defamatory, but not proved true, has put into play a defamatory imputation for which the plaintiff cannot recover damages (Holt v TCN Channel Nine Pty Limited [2014] NSWCA 90 at [23]). He submitted that a plaintiff should be entitled to amend so as to be able to recover damages for such an imputation. 6. The plaintiff submitted that in this case the imputations pleaded by him were regarded by his legal advisers as covering the ground of the defamatory allegations. He submitted that there were two dominant themes in the radio item – a connection between the plaintiff and corruption and, as an explanation for that, an attempt to pressure a councillor to approve a development. He submitted that his imputations covered these themes. The contextual imputations covered the same ground from slightly different angles and did not significantly change the nature of the claim. 7. The plaintiff submitted that there was nothing to suggest that he did not intend in a practical manner to sue for the entire defamatory impact of the radio item. He submitted that there was no reason why the proposed amendment should not be allowed. 8. In oral submissions, substantially in reply to the defendant's written submissions, the plaintiff submitted that there was no requirement in all cases for a party seeking an amendment to his or her pleadings to provide an affidavit setting out that the amendment was genuinely sought or that otherwise established that the plaintiff was bona fide in raising an issue which was genuinely in dispute. 9. The plaintiff submitted that there was not a great deal of difference between the contextual imputations when compared with the existing imputations. The plaintiff submitted that in the existing imputations there was a reference to corrupt behaviour, to attempting to benefit a developer and to using threats and intimidation to achieve those aims. He submitted that the contextual imputations, while focusing on different aspects of the existing imputations, were expressed in somewhat different terms. He submitted that in those circumstances it was difficult to see any prejudice to the defendant. 10. The plaintiff submitted that the closeness of the content of the contextual imputations to the existing imputations supported the explanation for the amendments set out in the Etherington affidavit. 11. The plaintiff submitted that contrary to the defendant's submissions there was no admissible evidence that he knew that any of the contextual imputations were true. The plaintiff submitted that it was not open to the defendant to rely upon the SMH article as establishing the truth of any matters therein reported since there were significant differences between the radio broadcast and that which was set out in the SMH article. Apart from anything else, the most obvious difference was that the radio broadcast stated that he wanted the development to be approved by council when the true position, as set out in the SMH article, was that he strenuously opposed the development being approved. 12. The plaintiff submitted that the defendant obtained little assistance from the fact that he (the plaintiff) had not brought proceedings against the SMH. This was because there were various explanations for that choice being made by him. For example, the SMH article was much more detailed and might well have given rise to a defence under s 30 of the Act, i.e. reasonable conduct in publishing the story. 13. The plaintiff submitted that the Court should not speculate as to what his reasons might be for not suing the SMH. He submitted that just because a cause of action is available does not mean proceedings had to be brought. The plaintiff submitted that one only has to establish a lie once in order to vindicate oneself. He submitted that the radio broadcast was obviously more serious than the SMH article in that the approval of a development would be more likely to create profits for someone, in particular the developer, than a rejection. 14. The plaintiff submitted that there was no evidentiary support for the defendant's submission that he (the plaintiff) knew that the contextual imputations were true. He submitted that to have that effect the evidence would have to establish that he knew that he had behaved corruptly. 15. The plaintiff submitted that a further problem with the defendant's submissions as to truth was that the contextual imputations were subject to a wide range of interpretation. The meaning of the imputations would depend very much upon the interpretation given to them. The plaintiff submitted that whether he was aware of the truthfulness of one or more of the contextual imputations would depend upon how one interpreted the imputation. For example, the reference to 50 odd pre-selectors in the SMH article was to be contrasted with a meaning which asserted direct interference by the plaintiff in the preselection process. 16. The plaintiff submitted that the proposition that he knew that the contextual imputations were true is "quite extreme". He submitted that it was perfectly obvious from the wording of those imputations that they were subject to interpretation, e.g. what does "corruptly" mean? What does "linking" mean? What does "as to warrant being referred to the corruption watchdog" mean? This was particularly so with that last imputation, i.e. most people would interpret that imputation as saying that some sort of formal process had taken place to bring about a referral to ICAC. 17. The plaintiff submitted that the contextual imputations were all capable of a considerable degree of interpretation. He submitted that if the defendant were to say that the plaintiff knew that those imputations were true that would not be a sound proposition for the purposes of these proceedings unless the defendant was able to say that the plaintiff knew that all possible interpretations of the contextual imputations were true. By way of further illustration, the plaintiff relied upon the wide range of interpretations of the word "corruptly". 18. The plaintiff submitted that the position adopted by the defendant was an extreme one in the context of this case. This was because when one looked at the scope for interpretation it was not possible to establish that the plaintiff knew that any of the imputations were true. The plaintiff submitted that the better interpretation was that in seeking to amend to add the contextual imputations, he was doing no more than attempting to "cover the territory". Just because this could have been done in other ways did not invalidate the method actually chosen by him. 19. The plaintiff submitted that when a person wants to sue on imputations that person is saying that he or she is offended by them and wants damages for them. Where there are multiple possible imputations of different levels of gravity and a person chooses to sue on a convenient handful, that person is doing no more than saying "I'm offended by this but I am willing to summarise my concerns in this way and settle for the damages I can obtain for these imputations". Consideration 1. The principles which apply to the amendment of a Statement of Claim are well known. In Horton v Jones & Ors (No 2) [1939] NSWSR p 35; (1939) 39 SR (NSW) 305 Jordan CJ (with whom Halse Rogers J and Owen J agreed) said at 309-310: "[it] is now a commonplace that if a party to legal proceedings establishes to the satisfaction of the Court that he is genuinely desirous of amending his pleadings for the purpose of modifying or otherwise altering some existing claim or defence, or of introducing a new ground of claim or a new matter of defence, he should be permitted to do so, subject to the imposition of such terms as may be proper, unless the proposed amendment is so obviously futile that it would be struck out if it appeared in any original pleading, or unless it is one that it would be impossible to allow upon any terms without causing substantial injustice to another party to the proceedings. The question whether an amendment would cause substantial injustice must, of course, depend upon the circumstances of the particular case." 1. Statements to similar effect were made by the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175: "102 The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment. 103 The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case." (Footnotes omitted.) (Rule 21 of the Court Procedure Rules 2006 of the ACT is similar in its effect to ss 56-64 of the Civil Procedure Act 2005 (NSW).) 1. A body of law has developed relatively recently concerning the amending of Statements of Claim in defamation matters where the amendment sought is the adding of contextual imputations taken from a Defence filed in the proceedings. The relevant principles were conveniently summarised by McCallum J in Chel v Fairfax Media Publications Pty Limited [2015] NSWSC 171 where her Honour said: "3 A plaintiff in a defamation action must specify the imputations upon which he or she relies: r 14.30 UCPR. It is a defence to the publication of defamatory matter if the defendant proves that those imputations are substantially true: s 25 of the Defamation Act 2005 (NSW). Separately, it is a defence if the defendant proves that, in addition to those imputations, the matter carried other imputations that are substantially true and the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations: s 26 of the Defamation Act. 4 The defendant's contextual imputations must necessarily be imputations other than those of which the plaintiff complains. 5 It is, I think, beyond doubt that the Court has a discretion to allow a plaintiff to amend his or her pleading so as to adopt a contextual imputation pleaded by a defendant: Kermode v Fairfax Media Publications Pty Ltd [2010] NSWSC 852 at [41] per Simpson J; approved in Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157 at [88] to [89] per McColl JA; cited with approval in Holt v TCN Channel 9 Pty Ltd (2014) 85 NSWLR 96 at [23] per Macfarlan JA; Gleeson JA and Sackville AJA agreeing; and see my decision in Hall v TCN Channel 9 Pty Ltd [2014] NSWSC 1604. … 17 The simple fact is that there is nothing in the statute to prohibit a plaintiff from relying on an imputation which happens, as a matter of history, first to have been pleaded by a defendant as a contextual imputation. As a matter of practicality, however, to do so requires an amendment with the leave of the Court. Whether leave should be granted is a discretionary judgment to be made according to the dictates of justice in the individual case. … 21 … The pleading difficulties created by the current state of the law were explained by Gibson DCJ in Mallegowda as follows (at [20]-[22]): "20. Following Kermode, a s 26 defence could not be pleaded to a plaintiff's imputations, and was restricted to those imputations which a defendant pleaded which were different in substance. This has, unfortunately, resulted in increasingly convoluted contextual justification imputations, as defendants searched to find "different" imputations to plead contextually. The problem was that a plaintiff would then seek leave to "plead back" these imputations, leaving the defendant without the benefit, if such an application was granted, of no separate imputations to ground a s 26 defence. 21. It was against this background that courts began to refuse plaintiffs leave to do so (see Ahmed v Nationwide News Pty Ltd and Waterhouse v Age Co Ltd, supra). The basis for the argument that the plaintiff could not plead these imputations back is that case management, or delay, principles, mean that the plaintiff has to get the imputations right the first time, as McCallum J notes in Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604, citing McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 307). In Waterhouse v Age Co Ltd, Nicholas J held that a plaintiff who failed to identify all the imputations had thereby disqualified himself from being able to rely upon any contextual imputation later pleaded by the defendant, no matter how short the delay or how obscure the contextual imputation, on the basis that the plaintiff had to get the imputations "right the first time, at risk of refusal to amend at a later time": Waterhouse v The Age Pty Ltd, citing Giles JA in McMahon at [49]. Given the difficulties of pleading imputations, and the absence of judicial guidance as to how a plaintiff is to identify every imputation available, this was a counsel of perfection, as well as being inconsistent with the right of any party to amend particulars and pleadings generally. 22. These convoluted pleadings in turn caused complexities at the trial level, as Mr Rasmussen noted, referring to trials in which he had appeared. It did not resolve the problem caused to defendants by the watering down of the defence; it simply added to the burden of the trial judge in determining how the jury should be addressed and in determining, when assessing damages, how to take into account different findings by the jury as to the success or failure of the imputations in question." 22 Those remarks acknowledge the potential unfairness of precluding a plaintiff from relying upon an imputation that has escaped the imagination of the pleader but which, upon being identified, the plaintiff wishes to embrace in the vindication of his or her reputation." 1. The most recent addition to the jurisprudence in this area further complicates the position of a defendant when a plaintiff wishes to adopt a contextual imputation pleaded in the Defence. In Fairfax Digital Australia and New Zealand Pty Ltd v Kazal [2018] NSWCA 77; 97 NSWLR 547 the Court (McColl, Meagher and Gleeson JJA) held that once a contextual imputation has been pleaded by a plaintiff it cannot be relied upon by a defendant. It rejected a proposition which had been raised by Basten JA in Kermode to the effect that once a matter went to trial, even though a defendant had not pleaded contextual imputations, if any contextual imputations were found to be true the defendant could contingently rely upon them as a defence. The present position is that once an imputation is one of which the plaintiff complains, it can never be relied upon by a defendant to make out a defence under s 26 of the Act. 2. It is against that background that this application by the plaintiff to amend his Statement of Claim must be considered. 3. Going back to first principles, it cannot be said that there was excessive delay in this matter. This is so despite no explanation being offered as to why (the Defence having been filed on 14 December 2018) nothing was done about amending the Statement of Claim until the notification on 7 March 2019. Nevertheless, that delay of itself is not sufficient to preclude the amendment sought by the plaintiff. 4. A striking feature of the plaintiff's application is the almost complete absence of any explanation of why the amendment was being sought. All that was said in the Etherington affidavit was "[we thought] that the imputations as contained in the Statement of Claim adequately distilled the key defamatory stings conveyed by the matter complained of concerning the plaintiff". This is despite the fact that on any analysis of the evidence, if this amendment were allowed, the defendant would be seriously prejudiced in that it would be precluded from relying upon what appears to be a strong contextual truth defence under s 26 of the Act. 5. A comparison of the present imputations with the contextual imputations makes clear that they are significantly different. The difference goes much further than a subtle or nuanced interpretation. The difference is such as to require some explanation. Most obviously, the present imputations have as their sting 'corruptly benefiting a developer'. The contextual imputations, however, have as their sting 'threats and intimidation by a Minister to members of a Council to try and get his way'. 6. It is also clear that the present imputations are based on the obvious mistake in the radio news item that the plaintiff wanted the DA approved. By contrast, the contextual imputations are of a more general kind and do not adopt a position either favouring or opposing the DA. There is a focus on the threat concerning party preselection and an assertion that the conduct was so serious that it deserved to be referred to ICAC. It follows that the contextual imputations differ in important respects from the present imputations. That places considerable doubt on the only explanation offered by the plaintiff for the amendment. 7. It is accepted that looked at in isolation the contextual imputations are subject to interpretation and may have a different meaning depending upon background and other factors. In this case, however, the capacity for such differences in interpretation is significantly reduced when one has regard to the content of the SMH article. When one considers the contextual imputations against that background, as already indicated, the sting becomes obvious. Similarly, the issues to which words such as "corruptly" and "linking" are directed, are significantly narrowed. The scope for interpretation is, therefore, also similarly limited. 8. It is not without importance that the contextual imputations are fully consistent with the SMH article. Moreover, there is no evidence that the plaintiff believes that the contextual imputations are untrue. This is in circumstances where the evidence in the Burke affidavit strongly tends to establish that they are true. 9. The Burke affidavit establishes that: 1. the plaintiff made calls about the DA to Crs Pickering, Stott, Maggio and Yedelian; 2. the plaintiff by his own admission in an interview with the SMH made those telephone calls; 3. the plaintiff admits that he said to Cr Pickering that if he supported the DA then "that would be a line in the sand and that I would lose confidence in him"; 4. the plaintiff admits that he said to Cr Stott "that if she rejected the advice of Council officers then she would need to justify that decision to the 50 odd preselectors and the broader community"; 5. Cr Stott felt threatened and intimidated by the telephone call in relation to her preselection; 6. Cr Stott made a "public interest disclosure" to the general manager of the Council about her telephone conversation with the plaintiff; 7. Cr Pickering was so concerned about the telephone call he received from the plaintiff that he sought legal advice about it and raised it with Anthony Roberts, the Planning Minister for NSW; 8. Mr Roberts confirmed that Mr Pickering had raised the matter with him on 26 April 2017; 9. Cr Laxale had referred the matter to ICAC; 10. the Council voted in favour of the Holdmark DA; 11. Cr Stott lost her Liberal Party preselection; and 12. Cr Pickering also lost his Liberal Party preselection. 1. The plaintiff's attack on this evidence, and on the Burke affidavit generally, is to the effect that its content is based on hearsay and is therefore inadmissible in these proceedings. That submission is incorrect. These are interlocutory proceedings and the evidence therefore comes within the exception to the hearsay rule in s 75 of the Evidence Act 1995 (NSW). The contents of the Burke affidavit and the SMH article itself are also admissible pursuant to s 70 of the Civil Procedure Act. 2. On that state of the evidence, and given the content of the SMH article, it is surprising that no proceedings in defamation have been brought against Fairfax Media. On its face the SMH article appears to be significantly more damaging to the plaintiff than the radio broadcast. Importantly, there is no evidence that anything in the Burke affidavit or in the SMH article is untrue. Finally, there is no evidence, in particular from the plaintiff, to the effect that anything in the contextual imputations is false. 3. While there is no obligation on the plaintiff to file an affidavit in support of the application to amend, in the circumstances of this case the plaintiff needed to satisfy the Court that there is a proper purpose for the amendment. The failure to do so means that there is no evidence to support a finding that there is a proper purpose for this amendment. This provides a further basis for the inference that not only are the contextual imputations substantially true but that the only purpose of the amendment is to prevent the defendant using them as a defence under s 26 of the Act. 4. Further, on that state of the evidence, I am not persuaded that the intention behind the proposed amendment is for the plaintiff to vindicate his reputation against the defamatory meanings in the defendant's contextual imputations. In the absence of any evidence to the contrary, and in the absence of any assertion either in these proceedings or in the interview given by him to the SMH that the contextual imputations are false, I am led to the conclusion that on balance there is no proper basis for the amendments sought and that this application gives rise to an abuse of process. 5. As McCallum J said in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 (Basten JA and Sackville AJA agreeing): "35 The submission that a plaintiff's imputation does not "challenge" anything is technically correct in that falsity of an imputation is not an element of the cause of action. All a plaintiff is required to establish is that the matter complained of was published and that it conveyed a defamatory imputation; truth is a defence. It does not follow that a plaintiff can properly institute an action seeking damages for a defamatory imputation he or she knows to be true. In my respectful opinion, it is manifestly an abuse to invoke the court's process to obtain a remedy to which the applicant is indisputably not entitled or else put a defendant to proof of that which cannot be denied. … 38 … The abuse of process lies in having instituted proceedings which, for whatever tactical reason commended itself to the pleader, sought a remedy for the applicant on the strength of imputations the truth of which cannot properly be controverted by her." 1. McCallum J made observations to similar effect in YZ v Amazon (No 7) [2016] NSWSC 637 where her Honour said: "32 Ms Chrysanthou, who appears for Amazon, submitted that, if the plaintiff has knowingly sued on true imputations, that in itself is an abuse of the Court's processes. She submitted that the position is no different from the position of a plaintiff who, for example, deliberately sues on a true imputation so as to prevent the defendant from being able to plead that imputation as a contextual imputation, taking advantage of the principles considered in the decision of the Court of Appeal in Besser v Kermode [2011] NSWSC 174 (reported as Fairfax Media Publications Pty Ltd v Kermode 81 NSWLR 157) at [88]-[89]. Certainly, if it were established that the plaintiff had deliberately sued on imputations she knew to be true for a purpose ulterior to the purpose of vindicating her reputation (such as for the purpose of excluding a plea of contextual truth to other imputations), that would, in my view, amount to an abuse of process." 1. I am persuaded that the situations described by McCallum J in those decisions are analogous to the present matter where the plaintiff is seeking an amendment that is intended to prevent the defendant raising a defence to which it would otherwise be entitled rather than vindicate any attack on his reputation. Orders 1. For the above reasons, the application for leave to amend the Statement of Claim to include the contextual imputations is refused. ********** 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: 12 April 2019