Robert Swan v Federal Capital Press of Australia Pty Ltd and David Jon Es [1993] ACTSC 55 (28 May 1993)

SUPREME COURT OF THE ACT

ROBERT SWAN v. FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LTD and DAVID JON ES
No. SC874 of 1992
Number of pages - 8
Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master Hogan(1)

CATCHWORDS

Practice and procedure - Pleading - Defamation - Imputations - Incapable of arising - Incapable of being defamatory - Embarrassing - Need for precision - New South Wales practice distinguished - Aggravated damages - Exemplary damages - Particulars required.

Baffsky v John Fairfax and Sons Ltd (1991) Aust Torts Reports 81-144

Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 677

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

Bik v Mirror Newspapers Ltd (1979) 2 NSWLR 679

Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58

HEARING

CANBERRA, 12 March 1993
28:5:1993

Counsel for the Plaintiff: R. Lucas

Instructing Solicitors: Colquhoun Murphy

Counsel for First Defendant: B. Connell

Instructing Solicitors: Macphillamy Cummins and Gibson

ORDER

THE COURT ORDERS THAT:
1. The imputation set out in paragraph 7(a) of the Statement of Claim

be struck out.
2. Leave be granted to the plaintiff to amend the Statement of Claim
by amending the imputations set out in paragraph-7(c) and 7(e) or by
adding such other imputations as he may be advised.
3. The plaintiff supply further and better particulars of the statements
of fact referred to in the particulars of aggravated and exemplary
damages numbered A(ii) in paragraph 9 of the Statement of Claim.
4. The particular of aggravated and exemplary damages numbered A(iii) in
paragraph 9 of the Statement of Claim be struck out.
5. Leave be granted to the plaintiff to amend the Statement of Claim by
setting out proper particulars of aggravated and exemplary damages.
6. The plaintiff pay the defendant's costs of or occasioned by any
amendments or supply of further and better particulars.
7. The plaintiff pay the costs of and incidental to this application.

DECISION

MASTER HOGAN By its amended Notice of Motion the first defendant in this action for defamation seeks a number of orders relating to the plaintiff's Statement of Claim.

2. In the Statement of Claim the plaintiff recites that he is a parliamentary lobbyist and media consultant, and in 1989 was an editorial and creative consultant on Ecstasy: The Australian Journal of Erotic Arts.

3. The second defendant wrote a letter to the editor of The Canberra Times, a newspaper published by the first defendant, which the first defendant proceeded to publish in the various States and Territories of Australia.

4. With numbers added for ease of reference, the matter complained of was as follows:

"1. No Upholder of Social Justice:
2. I cannot let pass your footnote description of Robert Swan (CT,
May 24,p) as "Director of the Institute for Social Justice"
without comment.
3. Mr Swan is, of course, a pornographer. Pornographers are
parasites on the insecure and unstable of our society who buy
such garbage. Such people make their money by degrading others,
women and men. Mr Swan's interest in social justice can be
regarded as nothing but a joke.
4. Orwell would feel vindicated at this classic example of
newspeak. Ask schoolgirls raped by men copying what they have
read or seen in pornographic magazines and videos their thoughts
on the justice of it. Ask Linda Lovelace, forced into making an
obscene movie still available in Canberra, her commitment to Mr
Swan's view of justice.
5. The Canadian Supreme Court recently stated that the women of
Canada had greater rights to protection than the pornographers
of Canada.
6. Wake up Australia] If Robert Swan is for social justice, then
Ted Bundy (US serial sex killer) was the Good Samaritan.
7. DAVID JONES
8. Hackett"

5. A number of imputations originally pleaded are no longer pressed. The plaintiff has offered to redraft one of them. Those that remain, as redrafted, are:

"(a) the plaintiff by his actions as a pornographer
deliberately exploits for gain mentally insecure and
unstable consumers of pornography;
(c) the plaintiff has deliberately and falsely claimed to
be committed to ideals of social justice;
(e) the plaintiff has made a claim to be committed to ideals of
social justice which is so wrong as to be ridiculous."

6. The plaintiff claimed aggravated damages and, except in respect of publication in New South Wales, exemplary damages.

7. The particulars of aggravated and exemplary damages as set out in the Statement of Claim were:

"A. Aggravation
The hurt and harm to the plaintiff was increased by his
knowledge of the following:
(i) the falsity of the matters complained of and the
imputations;
(ii) the falsity of the statements of fact upon which
comment in the matters complained of was based;
(iii) the malice of the defendants, which may be inferred from
(a) the terms of the matter complained of;
(b) the failure of the defendants to check the matter
complained of with the plaintiff before
publication;
(c) the failure of the first defendant to apologise
nothwithstanding the plaintiff's solicitor's
letter of 11th June 1992.
B. Exemplary Damages
The plaintiff repeats particular A(iii) and says that the said
conduct was in contumelious disregard of the plaintiff's rights."

8. The defendants have appeared, but have not yet pleaded their defence to the Statement of Claim.

9. The orders sought by the amended Notice of Motion are:

1. That the imputations be struck out as embarrassing.
2. That the imputations be struck out as being incapable of arising or
incapable of being defamatory.
3. That the claims for aggravated and exemplary damages, or the
particulars relating to them, be struck out, or, alternatively, that
the plaintiff supply further and better particulars of aggravated and
exemplary damages.

THE IMPUTATIONS
10. I respectfully agree with the remarks of Higgins J in Baffsky v John Fairfax and Sons Ltd (1991) Aust Torts Reports 81-144 at 69-331, to the effect that imputations in a defamation pleading should be precise and accurate.

11. But that does not mean that defendants in defamation actions should routinely seek to strike out imputations pleaded by a plaintiff simply because they have some complaint to make about the degree of their precision.

12. A plaintiff is entitled to frame his case as he pleases, subject to the right of the defendant to have the issues defined with sufficient particularity to enable a fair trial.

13. I do not understand the reference by Higgins J in Baffsky to the Rules and practice in New South Wales and to the cases that he cited to be saying anything to the contrary. Nor do I understand him to be laying down that applications to strike out imputations will be dealt with in exactly the same way in this Court as they may be in the Supreme Court of New South Wales. The fact that in that Court each imputation is a separate cause of action, whereas in this Court they are merely particulars, does make some difference. I understand His Honour to be saying, first, that the difference does not mean that in this Court there is no need to set out the imputations at all. As he said, at 69,391, "It is desirable that imputations alleged by a plaintiff appear in a pleading, particularly where the matter complained of is extensive."

14. Secondly, he then went on to speak about the need for precision and accuracy in drafting the imputations, particularly where the purpose of including them is to ensure that each side knows what case is to be met at trial.

15. It is instructive to refer to one of the decisions cited by Higgins J.

16. In Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 677, Hunt J came to the view that the imputation there in question was such that it was to be expected that the trial judge would direct judgment for the defendant, on the basis that the matter complained of was not capable of conveying any imputation defamatory of the plaintiff. He declined, however, to enter summary judgment, following General Steel Industries v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 and Bik v Mirror Newspapers Ltd (1979) 2 NSWLR 679.

17. But because the pleading rolled up at least three different meanings into the one imputation Hunt J struck it out as embarrassing. That embarrassment was increased by the requirement in the New South Wales Rules that the defendant plead to it. At 677F Hunt J said, "No elaboration of such mischief is necessary; the difficulties in pleading a separate defence to one or two only of the three imputations rolled into one are obvious, and, in any event, the allegation offends against the requirement of Pt.15 r 6(b)."

18. I think that there are two differences in the practice of this Court from that of the Supreme Court of New South Wales which are relevant to the way in which interlocutory proceedings relating to imputations should be approached.

19. The first is that in this Court trial is by judge alone. The distinction between questions of law and questions of fact remains just as valid, and should never be allowed to become blurred, but because the same tribunal determines both it is not as necessary, nor is it usually even useful, in this jurisdiction, to isolate and determine the legal questions before the trial of the factual ones. The judge at the trial is just as capable of determining whether an imputation is capable of arising as whether it does arise. There will rarely be any benefit in deciding at an interlocutory stage the legal question, especially as even the factual question is one on which evidence is not admissible. This does not apply, of course, to a true innuendo, which would need to be specifically pleaded, may be put in issue by the defence, and if put in issue must be proved.

20. The second difference is the matter to which I have already referred, and to which Higgins J adverted to in Baffsky, namely that in New South Wales each separate innuendo constitutes a separate cause of action, and the Rules are drafted in such a way as to deal with the consequences of that fact, as explained by Hunt J in Monte (and in some other cases as well).

21. In this Court they are but particulars, and the effect of the published material upon the mind of the ordinary reader remains as the central issue constituting the cause of action. The imputations are included in the pleading for the same purposes as all particulars, namely, to confine the generality of the issue within identified limits and to inform the opponent of the case to be met. Unless it is demonstrated that they do not serve those purposes, a plaintiff is at liberty to choose the language in which they will be expressed.

22. If the language chosen is simply extravagant, the plaintiff runs the risk of not succeeding at the trial, because at the trial the question to be decided will be the one that the plaintiff has chosen to delineate.

23. On the other hand, if the imputation is so imprecise that it has, demonstrably, a number of different possible meanings, then, as Higgins J pointed out in Baffsky, it is as much the defendant's responsibility as it is the plaintiff's to ensure that the pleadings are properly adapted to defining the issue to be tried, and to do that before the trial.

24. It may sometimes be possible to cure the imprecision by the supplying of further particulars. If that is not possible, or the plaintiff refuses to give them, then an application to strike out the ambiguous innuendo will probably succeed.

25. Although the reasons for doing so would not be as numerous, I venture to think that the imputation struck out by Hunt J in Monte would have met a similar fate in this Court also.

26. But in order to succeed in an application to strike out an innuendo, a defendant must be able to demonstrate, not merely that the innuendo could have been more precisely expressed, or that counsel, or even the Bench, could obviously do a better job at drafting it than the plaintiff's advisers, but that it is so imprecise that the defendant is not able to identify the case to be met at the trial.

27. The imputations pleaded in this action are obviously capable of being found to be defamatory. Whether they are defamatory or not is for the trial judge to decide.

28. I am not persuaded that as expressed they are so obviously incapable of arising that they should be struck out. Whether they do arise or not is for the trial judge to decide.

29. It is clear to me that imputation (a) contains more than one statement about an act or condition relating to the plaintiff.

30. One is that he carries out the actions of a pornographer. Even that has the ambiguity of not stating whether he is a person who creates pornographic material or one who purveys it. If the defendant were minded to plead justification it is obvious that the task of proving one or the other would make a difference to the case to be made and met.

31. Another is that by those actions of his he deliberately exploits for gain certain people. By what actions? Which action or actions, from among the various actions that a pornographer might engage in to achieve gainful exploitation of such people, is the action that the plaintiff alleges the publication imputes to him? There are further imprecisions, but those are sufficient to my mind to demonstrate that there are so many variations of what might be comprised within imputation (a) that it conceals rather than discloses what the plaintiff's complaint really is. I order imputation (a) to be struck out.

32. But, on the other hand, while I agree that one could be more precise in the expression of the ideas in imputations (c) and (e), each is a single idea, though a complex one, and the plaintiff may, if he chooses, elect to do battle on the basis of them. The defendant should be in no doubt about the case to be made and met.

33. On the other hand, since I have struck out one imputation, the plaintiff's advisers should be given the opportunity to reformulate the ideas contained in it. They may also be inclined at the same time to take account of the discussion about the other imputations.

34. I decline to make any order about imputations (c) and (e).

35. I grant leave to the plaintiff to amend the Statement of Claim by amending those imputations or by adding such proper imputations as he may be advised.

36. I order the plaintiff to pay the defendant's costs of or occasioned by any such amendments.

PARTICULARS OF AGGRAVATED DAMAGES
37. In Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 Hunt J set out a discussion of many of the considerations relevant to particulars in this area of the law. It is necessary, in reading them, to keep clearly in mind that the provisions of the Defamation Act 1974 to which he refers are not in force in this Territory.

38. At p 74 he said,

"Aggravated damages are more properly called aggravated compensatory
damages. They are awarded where either the circumstances of the
publication of the matter complained of or the defendant's conduct then

or

subsequently make the injury to the plaintiff worse--when the ordinary
compensatory damages awarded for the publication itself may be increased.
They are not awarded as a separate amount. Aggravated compensatory
damages are usually awarded only in relation to the injury to the
plaintiff's feelings: McCarey v Associated Newspapers Ltd (No 2) (1965)

2
QB 86 at 104, 107; Cassell and Co v Broome Ltd (1972) AC 1071, 1125. They

are not, however, necessarily so limited, and there may be conduct which
has the effect of increasing the injury to the plaintiff's reputation as
well. What were sometimes called aggravated damages in the older cases
have been discovered upon later analysis to be in reality punitive
damages: see Uren v John Fairfax and Sons Ltd [1966] HCA 40; (1966) 117 CLR 118 at
151-152. Since the abolition of punitive damages (Defamation Act 1974,
s.46(3)(a)), such damages may no longer be awarded. Damages for

defamation

are now limited to compensation for the harm actually suffered by the
plaintiff. Section 46(2) is intended to ensure that only truly
compensatory damages are awarded. To underline that limitation, s 46(3)
not only provides for the abolition of punitive damages but it also
restricts an award which includes aggravated damages based upon the

malice
or other state of mind on the part of the defendant to the situation where

the plaintiff is aware of that state of mind: Toomey v Mirror Newspapers
Ltd (1985) 1 NSWLR 173 at 186. Conduct on the part of the defendant

which

is relevant to the issue of aggravated damages need not be malicious, but
it must be capable of amounting to conduct which was in some way
unjustifiable, improper or lacking in bona fides: Bickel v John Fairfax

and

Sons (at 497); Mirror Newspapers Ltd v Fitzpatrick (at 653).

39. The limitation imposed in New South Wales by S 46(3) is not a relevant point of distinction in this case, since all the particulars of aggravation are governed by the statement in the pleading, "The hurt and harm to the plaintiff was increased by his knowledge of the following."

40. Particulars (i) and (ii) refer to the falsity of the matters complained of, of the imputations, and of the statements of fact on which comment was based.

41. Hunt J continued, in Waterhouse (supra), at 74,

"Falsity is a matter which goes to aggravated compensatory damages,
rather than ordinary compensatory damages: Aldridge v John Fairfax and

Sons

Ltd (1984) 2 NSWLR 544 at 549. As I pointed out in the earlier part of
this judgment, the falsity of the matter complained of is relevant only

so

far as it affects the imputations upon which the plaintiff relies; the
falsity of any other part of the report is irrelevant to the issue of
aggravated damages. It would be sufficient, therefore, to allege only
that the imputations were false in the same way as a defendant asserts,

in

mitigation of damages, that the imputations were true: Pt 67, r 18(3);
see s 47."

42. The fact that the plaintiff alleges that the imputations were false is therefore sufficient to demonstrate that the claim for aggravated damages may not be struck out. I also agree that to state that each of the imputations is false gives sufficient particularity to enable the defendant to know what case it has to meet. Since in this Court it is the matter complained of and not each individual imputation which is the gist of the action, I can see no impropriety in the allegation that the matter complained of was false, the issue being restricted to the areas delineated by the imputations, which are themselves but particulars. I therefore refuse to strike out particular A(i), or to order any further and better particulars of it.

43. So far as particular A(ii) is concerned, it gives rise to two problems.

44. The first is whether the statement made by Hunt J in the passage just cited, that the falsity of any part of the report other than the imputations is irrelevant, applies in this Court, in light of the differences from the common law created by the Defamation Act 1974. I do not think that it does. So far as I can see the reference in the passage just cited to an earlier part of the judgment relates to his statement at 67, 68 that there is no difference in practice between an assertion that the defendant knew that the imputations were false and an assertion that it knew that the matter complained of was false. He continued, at 68A,

"In this case, the matter complained of is the report which was the
vehicle by which the imputations are alleged to have been conveyed:
Defamation Act 1974 s 9(1). Except for such imputations which do not
differ in substance from those which have already been pleaded, the
plaintiff cannot rely upon any imputations which have not been pleaded in
accordance with Pt 67, r 11(2): Morosi v Mirror Newspapers Ltd (1977) 2
NSWLR 749 at 771-772; Petritsis v Hellenic Herald Pty Ltd (1978) 2 NSWLR
174 at 193; Love v Mirror Newspapers Ltd (1980) 2 NSWLR 112 at 128;
David Syme and Co Ltd v Lloyd (1984) 3 NSWLR 346 at 356. Thus the falsity
of the matter complained of is relevant only so far as it affects the
imputations upon which the plaintiff relies. And, as I have just pointed
out, that falsity is relevant (to the issue of express malice which
defeats a defence of qualified privilege) only if they were the
imputations which the defendant intended to convey; it is wholly
irrelevant to the absence of good faith which defeats the defence of fair
protected report."

45. I am inclined to the view that the statement in question depends upon the peculiarity (in the strict sense) of the New South Wales law and practice.

46. But particular A(ii) suffers from another defect, in that it does not set out even the slightest indication of the matters of fact to which it refers. There is no way that the defendant can tell what parts of the matter complained of are said by the plaintiff to be comment, and what parts are said to be facts on which comment is based.

47. I order the plaintiff to supply further and better particulars identifying the actual statements of fact to which the particular relates.

48. So far as particular A(iii) is concerned, it is true that the plaintiff's knowledge of malice on the part of the defendant would be relevant on the issue of aggravated damages. But the pleading must set out particulars of the facts and circumstances on which the plaintiff will rely in order to raise the inference that the defendant was motivated by malice. And at least some broad hint should be given of the form of malice that the plaintiff is alleging.

49. It is, I suppose, possible that the very language and terms used by a defendant in the course of making a defamatory statement may sometimes support an inference that the person making it was motivated by some improper purpose, or was in some other way malicious.

50. But subparagraph A(iii)(a) is obviously deficient, in that it does not set out which of the many terms and phrases used in the letter to the editor are relied upon to found that inference.

51. Subparagraph A(iii)(b) is also deficient. In Waterhouse (supra), at 76, 77, Hunt J said,

"Clearly enough, upon the authority of Andrews's case, a failure to
make inquiries of the plaintiff prior to the publication will be relevant
in some cases to the issue of aggravated compensatory damages if that
failure was unjustifiable, improper or lacking in bona fides. It could

be

so only if some obligation arose for the defendant to make that inquiry.
That it is not a publisher's obligation in every case to make such
inquiries was made clear in Bickel's case (at 487), where it was held

that

there was no obligation placed upon a critic to inquire of the author of
the book which he is criticising whether the opinion he wishes to publish
is correct. This ruling was upheld on appeal: (1982) 1 NSWLR 498 at
501."

52. There is no statement of the facts and circumstances on which the plaintiff will rely in order to demonstrate that the failure of the defendant to check was unjustifiable, improper or lacking in bona fides, and if so which, or from which the obligation arose for the defendant to make that inquiry.

53. So also is subparagraph A(iii)(c) deficient. The words used by Hunt J in Waterhouse at 78 B, C, are directly apposite,

"In Howe v Lees (at 373), it was held that a failure to apologise or
retract was not evidence of express malice which defeated the defence of
qualified privilege, but that it was relevant to the issue of damages.

In

Mirror Newspapers Ltd v Fitzpatrick (at 660), it was made clear that this
is so only if that failure amounted to conduct which was in some way
unjustifiable, improper or lacking in bona fides which is relevant to
aggravation. The defendant is entitled to know the circumstances upon
which the plaintiff relies to establish that this was so. The particular
is struck out, with leave to supply amended particulars in its place

which

forewarn the defendant of the case which it has to meet upon this issue."

54. I propose to make a similar order with respect to the whole of particular A(iii).

55. Since that is the only particular relied on in support of the claim for exemplary damages, it follows that the claim for exemplary damages can not succeed on the basis of the pleading in its present form. I therefore order that the matter purporting to be particulars in support of that claim be struck out.

56. I grant leave to the plaintiff to amend the Statement of Claim so as to provide proper particulars relating to aggravated and exemplary damages. The plaintiff should pay the defendant's costs of and occasioned by the amendment.

57. I order the plaintiff to pay the costs of and incidental to this application.