Gavan Griffith v Acp Publishing Pty Limited [1993] ACTSC 113 (21 December 1993)

SUPREME COURT OF THE ACT

GAVAN GRIFFITH v. ACP PUBLISHING PTY LIMITED
No. SC323 of 1993
Number of pages - 3
Defamation Action - Imputation - Statement Of Claim

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Defamation Action - pleading - Statement of Claim - whether alleged imputations are repetitive and embarrassing - imputations must be precise and different - Defamation Act 1974 (NSW).

Imputation - alleged to be defamatory - whether incapable of arising from matter complained of - test to be applied.

Statement Of Claim - defamatory imputations pleaded - application to strike out.

Bankruptcy Act 1966 (Cth)

Defamation Act 1974 (NSW)

General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125

Lewis and Rubber Improvement Ltd v Daily Telegraph Ltd (1964) AC 234

Hadzel v De Waldorf (1970) 16 FLR 174

HEARING

CANBERRA, 26 November 1993
21:12:1993

Counsel for the Plaintiff: Mr T K Tobin QC with Mr P Hohnen

Instructing Solicitors: Macphillamy Cummins and Gibson

Counsel for the Defendant: Mr G J Richardson

Instructing Solicitors: Phillips Fox

ORDER

The application be refused.

DECISION

HIGGINS J This is an application by the defendant to strike out the imputations pleaded or particularised by the plaintiff in his Statement of Claim. The claim is for damages for defamation arising out of the alleged publication by the defendant of an article in "The Bulletin" of 8 December 1992 entitled "The Politics of Ignorance".

2. The defendant relies upon two grounds for its application. The first is that the imputations are incapable of arising from the matter complained of. To make out that objection, the defendant must satisfy the test enunciated by the High Court in General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125. That is, it must be manifest that the imputations do not arise. If it is seriously arguable that an imputation arises from the matter complained of, it should stand.

3. The second ground is that the imputations, or some of them, are repetitive and embarrassing. That is an objection which, if valid, can and should be met by a re-drafting or editing out of the offending imputations.

Capacity to defame
4. In considering this question, it must be borne in mind that it is not the literal meaning, nor the meaning on a "true" construction, of the matter complained of which is determinative. It is the meaning which the tribunal of fact decides was conveyed in the circumstances to the ordinary reasonable reader (see Lewis and Rubber Improvement Ltd v Daily Telegraph Ltd (1964) AC 234, 281 per Lord Devlin) that ultimately determines the question.

5. The matter complained of is annexed hereto.

6. In my view, the article is clearly capable of conveying the meaning that the plaintiff misused his role under the Bankruptcy Act 1966 (Cth) to obtain an unfair advantage for the Commonwealth in the litigation referred to. It is also capable of conveying the impression that the advantage was gained in some sort of underhand or deceitful manner. The article further alleges that conditions were imposed by the plaintiff on the grant of legal aid to the bankrupt litigant to further prejudice her chances of success in the litigation. It is also capable of imputing that the result was to the serious prejudice of the private citizen, Ms Faulkner, who was the other party to the litigation.

7. To impute such misconduct to the Solicitor-General is, I think, clearly capable of defaming him.

Form of the Imputations
8. In Hadzel v De Waldorf (1970) 16 FLR 174, Fox J held that a defendant was entitled to have the defamatory imputations alleged by the plaintiff particularised as precisely as possible. Furthermore, in view of the fact that the particularised imputations are to serve as the specification of the causes of action alleged to arise under the Defamation Act 1974 (NSW), the pleaded imputations should be both precise and, in substance, different from each other.

9. However, it is not for the Court to alter an imputation merely to give expression to the Court's view of more felicitous drafting.

10. So far as I can determine, none of the pleaded imputations can be said to be incapable of arising from a fair reading of the matter complained of.

11. Further, I agree with the submissions for the plaintiff that each imputation, though referring to misconduct, differs in substance from the others of them.

12. The application is refused.

13. I will hear the parties as to costs.