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Supreme Court of the ACT Decisions |
Last Updated: 30 November 2005
DEFAMATION - whether imputations pleaded in statement of claim capable of being conveyed by first or second matters complained of - whether imputations pleaded with sufficient precision.
Trade Practices Act (1974) (Cwth), s 52
Favell v Queensland Newspapers Pty Ltd [2005] 8 CA 52 (27 September 2005)
Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679
Lewis v Daily Telegraph Ltd [1964] AC 234
John Fairfax Publications Pty Ltd v ACP Publishing Pty Ltd [2005] ACTCA 12 (1 April 2005)
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
No SC 176 of 2005
Judge: Crispin J
Supreme Court of the ACT
Date: 10 November 2005
IN THE SUPREME COURT OF THE )
) No SC 176 of 2005
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: ICON INTERNATIONAL COMMUNICATIONS PTY LIMITED
First Plaintiff
PHILLIP JOHN BURFURD
Second Plaintiff
CHRISTOPHER MARTIN GRAY
Third Plaintiff
AND: NATIONWIDE NEWS PTY LIMITED
ACN 008 438 828
First Defendant
GARTH MONTGOMERY
Second Defendant
AUSTRALIAN RECORD INDUSTRY ASSOCIATION LTD
ACN 002 692 944
Third Defendant
MICHAEL SPECK
Fourth Defendant
Judge: Crispin J
Date: 10 November 2005
Place: Canberra
THE COURT ORDERS THAT:
1. the statement of claim be amended in the terms contained in the drafted amended statement of claim handed up on 11 October 2005 subject to the deletion of subparagraphs 17(a), (e), (g) and (h), 18(a), (c), (g) and (h), paragraph 19, subparagraphs 27(b), (c), (d) and (e), 28(b), (c), (d) and (e) and 29(b), (c), (d) and (e).
1. The plaintiffs seek leave to amend a statement of claim in which they allege that they have been defamed by assertions made by the defendants and published in "The Australian" newspaper on 16 December 2004.
2. The defendants do not oppose the filing of an amended statement of claim but do seek to have certain imputations excised. In essence, they contend that the imputations in question should be struck out on the ground that they could not reasonably be regarded as having been conveyed by the matter complained of, or alternatively, on the ground that they are embarrassing by reason of being ambiguous or unclear.
3. The manner in which such issues should be approached was not the subject of any dispute.
4. In Favell v Queensland Newspapers Pty Ltd [2005] 8 CA 52 (27 September 2005) Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ accepted as correct the following statement of principle by McPherson JA in the judgment of the Queensland Court of Appeal:
Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.
5. Material is capable of conveying the relevant defamatory imputation if a jury, properly instructed, could reasonably come to the view that the words were defamatory of the plaintiff in the manner alleged: Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 at 681F.
6. Furthermore, as Lord Reid said in Lewis v Daily Telegraph Ltd [1964] AC 234 at 258-259:
There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs . . . .. . .
What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning . . .
. . .
. . . Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.
7. In John Fairfax Publications Pty Ltd v ACP Publishing Pty Ltd [2005] ACTCA 12 (1 April 2005), the Court of Appeal cited the previous passage and referred to a number of Australian cases in which it had been applied. The Court then explained:
The hypothetical ordinary reader has been variously described as a "reasonable reader", a "right-thinking [member] of society", an "ordinary man, not avid for scandal" and sometimes as a "reader of average intelligence". Special knowledge is excluded and so are extremes of suspicion or cynicism on the one hand or naivety and disbelief on the other: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 per Kirby J at par 134.1.In deciding whether any particular imputation is capable of being conveyed by the material in question the issue is whether it is "reasonably so capable, and any strained or forced or utterly unreasonable interpretation must be rejected" (see Hunt CJ at CL in Amalgamated Television Services v Marsden at 170). However, a wide degree of latitude will be attributed to the capacity of the ordinary reasonable member of society to draw adverse imputations where the language employed has been imprecise, ambiguous or loose: Amalgamated Television Services v Marsden at 165 and Chakravarti v Advertiser Newspaper Ltd at par 134. 2.
The nature of the publication may be a material consideration in determining whether imputations are capable of being conveyed by the words employed. The reasonable reader of a "sensational" article may be permitted to engage in a certain amount of "loose thinking" whilst the reader of a non-sensational article should be taken to apply a greater degree of analytical focus: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 373.
8. The Court also referred to the distinction drawn in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 between the reader's understanding of what the newspaper is saying and the judgments or conclusions which he or she might reach as a result of his or her own beliefs and prejudices. An imputation must reflect some meaning fairly attributable to the words in question, rather than merely a conclusion derived from some belief or prejudice excited by the material in question.
THE CASE AGAINST THE FIRST AND SECOND DEFENDANTS
9. In the present case, the imputations pleaded against the first and second defendants are alleged to have been conveyed by what has been described as "the first matter complained of", which consisted of the whole of the article previously referred to. That article detailed the first defendant's role as a public relations agency that had undertaken a promotional campaign on behalf of a company identified as "Sharman Networks", which was said to be the "owner of the biggest file-sharing software in the world, Kazaa". It stated that the case "centres on copyright infringements within the Kazaa system and whether Sharman has encouraged and benefited from piracy, which the Australian Record Industry Association (ARIA) claims it could filter if it chose". The promotional campaign used by Sharman to "entice users" had become "part of the case", though a "Sharman executive" who had been cross-examined about statements said to have been made on the company's behalf denied any involvement in approving the campaign. The article went on to say that barristers appearing for ARIA had likened the "campaigns" to "holding a gun at the head of the record companies". The article stated that opinion had been divided as to how prevalent it had been for a media agency to have its campaign made part of the case against a client. It cited statements by a legal academic who referred to s 52 of the Trade Practices Act (1974) (Cwth), and explained that the article dealt with deceptive and misleading conduct in the course of trade. The academic also expressed the opinion that material generated by a public relations company could be used as evidence to prove a case based upon conduct of that nature. The article went on to state:
Although (the first plaintiff) is not accused of anything in the case against Sharman, ARIA is in the process of filing a complaint to (the Public Relations Institute of Australia) for a breach of the PR code of ethics.
10. The article also included the following statements:
ARIA claims that Icon has a vested interest in the case beyond communicating its clients version of the case to assembled media in the halls of the Federal Court.The record industry has alleged that the success of the media campaign driven by (the first plaintiff) has contributed to furthering the illegal activity on Kazaa. It's made more complex that Sharman concedes that illegal activity does occur on its system, but denies that the system or its business thrives on copyright infringements.
. . .
The fact that Icon continues to advise the media confirms to the record industry that the PR company is committed to the cause of Kazaa on a deeper level than just client servicing. "I question their independence as a PR agency," says ARIA media spokesman for the case, Michael Speck. "They need their client to win the copyright case to justify their involvement in a promotional campaign, which is now a central plank in our case. They should disclose that involvement to journalists."
...
It's clear they have an interest in the outcome," says (a senior lawyer). "People need to be made aware of what motivates an agency in their comments about a campaign or product because an agency may be exposed to liability if the product or campaign is ultimately found to be unlawful."
Imputations against the first plaintiff
11. Mr Leopold, who appeared for the first and second defendants, challenged a number of the alleged imputations and I will deal with them in the sequence in which they appear in the draft amended statement of claim.
17(a) The first plaintiff had engaged in illegal activity in the course of its activities as a public relations firm for Sharman.
12. Mr Leopold submitted that the matter complained of was incapable of conveying this imputation. He submitted that the hypothetical reasonable reader would understand the article to suggest that some users of the Kazaa website had acted illegally by downloading material in breach of copyright, and that the action against Sharman was based upon the allegation that it could have prevented such illegal activity but had failed to do so. He conceded that the article suggested, in substance, that the promotional campaign conducted by the first plaintiff had led to more people using the website and hence, perhaps, more people engaging in such unlawful activity, but maintained that there had been no suggestion that the first plaintiff had itself acted illegally or that it had encouraged others to do so. He did not dispute the point made by Mr McClintock SC, who appeared for the plaintiffs, that the reasonable reader should be taken to assume that the first plaintiff had been aware that such illegal activity was being undertaken on the website, but submitted that this was irrelevant. He argued, by way of analogy, that a public relations firm could not be said to have acted illegally in conducting a promotional campaign for a brewery even if aware that some people who consumed its client's products became drunk and committed traffic offences or even acts of violence.
13. I accept that some parts of the article provide strong support for the construction for which Mr Leopold contended. However, I am not presently concerned with whether the imputation was, in fact, conveyed. That will be an issue to be determined at the trial of the action. All I am required to do at this stage of the proceedings is to decide whether I should exercise my discretion to strike out the imputation on the basis that the words which are complained of are incapable of conveying such a meaning and, as previously mentioned, such an exercise must be approached with great caution. Having considered the various aspects of the article to which my attention was drawn, I have concluded that the imputation cannot be confidently dismissed as one incapable of being conveyed by the words complained of.
14. However, Mr Leopold also challenged the imputation on the ground that it was not sufficiently precise. He pointed out that, in seeking to defend the pleading of the imputation, Mr McClintock had suggested that the imputed illegality might lie in inciting users to commit breaches of copyright, in involvement in false or misleading conduct, or even in illegality of an unspecified kind. It is, of course, imperative for a defendant to know precisely what case it will be obliged to meet at trial so that it may plead and prepare its defences accordingly. Hence, for example, it is entitled to know whether any defence based upon the truth of the matter complained of will require it to prove that the first plaintiff knowingly procured or encouraged breaches of copyright or, alternatively, whether it will be required to prove that statements made by the first plaintiff during the advertising campaign constituted false or misleading conduct.
15. It is true, as Mr McClintock pointed out, that a plaintiff can plead its case only with the degree of precision permitted by the nature of the matter complained of. In the present case, however, further precision is clearly possible.
16. It is also true that the plaintiff is bound by the particulars and, in the present case, the plaintiffs' solicitors have, to some extent, defined the scope of this imputation by stating that the phrase "engaged in illegal activity" relates to the suggestion that the plaintiffs had been involved in and were responsible for the illegal activity attributed to Sharman. However, even that formulation is still somewhat imprecise. Neither the article nor the particulars provide a definitive account of the conduct engaged in by Sharman that was said to be illegal. It might be possible for the defendants' solicitors to ascertain the nature of the alleged illegality from the pleadings in the proceedings brought against Sharman in the Federal Court. However, the possibility that a defendant might be able to deduce the intended meaning of a pleading by conducting an independent investigation provides no answer to a complaint that the pleading does not, of itself, clearly disclose the case that he or she may be required to meet. Furthermore, since the hypothetical reasonable reader could not be assumed to have undertaken such an exercise in order to enhance his or her understanding of the article, it is by no means clear that the nature of the imputations said to have been conveyed by it could be clarified in such a manner.
17. The proposition that alternative formulations of the imputation could have been pleaded also offers no answer to the complaint of imprecision. They are entitled to know whether each of the allegations suggested as possible foundations for the imputation are to be maintained in the proceedings against them.
18. The imputation presently pleaded does not, in my opinion, enable the first and second defendants to adequately identify and address the nature of the imputation pleaded. Accordingly, it is defective in form and will be struck out.
17(e) The first plaintiff had behaved in a dishonest manner in the "Join the Revolution" media campaign it had devised for Sharman.
19. As Mr Leopold pointed out, the only passages in the first matter complained of that used the terms "honestly" or "honest" related to suggestions that the first plaintiff should have disclosed that its media campaign had become "part of the case", and it is difficult to see how a reasonable reader could have construed those passages as conveying an imputation that the first plaintiff behaved in a "dishonest manner" during the campaign.
20. It is, I suppose, conceivable that the pleaded imputation was intended to suggest that the first plaintiff had behaved dishonestly "in the . . . campaign" not by making dishonest statements, but merely by maintaining the campaign without making such a disclosure. However, such a suggestion does not emerge from the pleading with any clarity.
21. Alternatively, the imputation could, perhaps, have been based upon a contention that the references to deceptive and misleading conduct, albeit contained in a general statement of principle, were sufficient to give rise to some imputation of dishonesty on the part of the first plaintiff. Again, however, no such proposition can be clearly identified from the present form of the imputation.
22. Accordingly, I am satisfied that the imputation is either one that is either incapable of rising from the words complained of or, alternatively, is not expressed with sufficient clarity to enable the first defendant to clearly identify the case that it is required to meet. It will be struck out.
17(g) The first plaintiff behaved in a seriously wrongful manner for which it had been called to account.
23. Mr Leopold challenged this imputation on the ground that it was too vague. In response, Mr McClintock pointed out that the first matter complained of contains a number of statements that appear to imply criticism of the first plaintiff in terms that make it difficult for the precise nature of the imputation to be identified, let alone pleaded. He submitted that the case provided a classic example of a situation in which a plaintiff could not be expected to do more than plead an imputation of wrongful conduct in general terms.
24. Whilst I might otherwise have been sympathetic to this submission, Mr Leopold drew my attention to a letter of particulars dated 5 July 2005 in which the plaintiffs' solicitors explained that imputation 17(g) related to suggestions of wrongful conduct "including that":
(a) Icon had devised a campaign which contributed to the illegal activity on (sic) Kazaa;
(b) Icon had a vested interest in the outcome of the litigation against Sharman which was governing their handling of their PR function in relation to the proceedings;
(c) Icon had failed to disclose matters it should have disclosed;
(d) Icon was in breach of its ethical obligations.
25. This suggests that the imputation pleaded may be intended to convey a diversity of meanings including, though not limited to, those specified in sub paragraph (a) to (d). If it is suggested that successive acts of wrongful behaviour were imputed by the article then each should be pleaded. Alternatively, if it is suggested that the allegedly wrongful nature of particular conduct can be adequately disclosed only by particulars of the context in which it is said to have occurred, then the nature of the wrongful conduct should be specified and all of the allegedly contextual facts and circumstances identified so that the first and second defendants know the case they may have to meet. That has not been done.
26. In the light of these particulars I am satisfied that the imputation is defective in form and should be struck out.
17(h) The first plaintiff, in having a vested interest or an interest in the outcome of its client's Federal Court case, had breached its ethical obligations as a public relations agency.
27. Mr Leopold submitted that this imputation was defective in form by reason of the duplicity inherent in the alternative formulation, "a vested interest or an interest".
28. Had this been a jurisdiction in which the relevant issues were likely to be determined by a jury, I would have been inclined to require the plaintiff to plead the alternative formulations in separate imputations. However, in the ACT all such issues are resolved by a judge sitting alone and I see no reason to suppose that any confusion would be caused by the form of the imputation.
29. However, even if one ignores the alternative formulation, the imputation pleaded is still quite imprecise. It contains no hint as to how the existence of an unspecified vested interest or interest in the outcome of a court case could be seen as giving rise to a breach of the ethical obligations of the first plaintiff. In almost any case there will be people other than the parties who have some form of interest in the outcome. In some cases they may be insurance companies who are at risk of having to indemnify parties for the potential judgment debts, in others they may be lawyers who are unlikely to be paid if their clients do not succeed, and in yet others there may be family members who stand to be evicted along with the defendants if warrants for possession are issued. There is simply no basis for any suggestion that such people breach ethical obligations by reason of having such interests.
30. It is true, of course, that the existence of such an interest may be a relevant factor in considering the ethical implications of other conduct, such as whether the behaviour gives rise to a duty of disclosure or self-disqualification, but the imputation pleaded in this subparagraph does not avert to any such conduct on the part of the first plaintiff.
31. Accordingly, I accept that the imputation is at least defective in form and should be struck out.
Imputations against the second plaintiff
32. The second plaintiff seeks to strike out the imputations contained in paragraphs 18(a), (e), (g) and (h) which generally correspond with those in sub paragraphs 17(a), (e), (g) and (h), though, of course, allegedly referring to the second plaintiff in his capacity as the chief executive officer of the first plaintiff or, to use the words of the article, the "Chief" of that company.
33. Mr Leopold relied upon essentially the same grounds as those put forward in challenging the corresponding imputations in paragraph 17, but submitted that his clients were in an even stronger position because the article did not contain any suggestion that the second plaintiff had personally acted illegally or dishonestly.
34. It is true that the article contains no explicit allegation of a personal nature, but it does refer to the second defendant as the "Chief" of the first plaintiff, and quotes the remarks which he made in defence of the allegations. In these circumstances, it is not, in my opinion, at all clear that the imputations capable of being conveyed against the company are incapable of being conveyed against the second defendant and I would exercise my discretion to strike out the relevant imputations on that basis.
35. Accordingly, I intend to approach the imputations pleaded in this paragraph in the same way as I have approached the imputations pleaded in paragraph 17 and make the same orders.
Imputations against the third plaintiff
36. Similar issues arise in relation to paragraph 19, which contains imputations said to relate to the defamation of the third plaintiff. Whilst the third plaintiff was not named in the matter complained of, it is alleged that the article would have been read by at least some people who would have known that he was the managing director of the first plaintiff and, by reason of that knowledge, would have understood that the matters complained of referred to him personally.
37. Mr Leopold argued that there was essentially no basis for these claims. He pointed out that the article not only referred to the second plaintiff as the "Chief" of the first plaintiff, but quoted statements he had made which appeared to involve a spirited defence of the company's position. In particular, the second plaintiff was quoted as saying "we are not required to provide the subpoena to the press. That's your job to find it, not my job to give it." Mr Leopold submitted that this statement clearly suggested that it was the second plaintiff who had made the decisions upon which the relevant imputations had apparently been based and that there was nothing in the article to give rise to any imputations against the third plaintiff, even in the eyes of a reasonable reader who was aware of his role as managing director.
38. In response to this contention, Mr McClintock indicated that the advertising agency employed only about ten people, and submitted that the reasonable reader would be prepared to infer that the managing director of such a small organisation would have had to at least acquiesce in the relevant decisions, even if the second plaintiff made them or accepted primary responsibility for them. He also said that there were other facts and circumstances to support an inference that the imputations pleaded in this paragraph would have been understood by at least some readers to refer to the third plaintiff.
39. That may well be so, but the pleadings and particulars are devoid of any allegation relating to the size or organisation of the first plaintiff, or any of the other facts and circumstances to which Mr McClintock alluded. Deficiencies in pleadings or particulars cannot usually be remedied by assertions from the bar table as to the existence of further facts. On the contrary, such submissions may serve to demonstrate that the case that the plaintiffs seek to bring against the defendants has not been adequately disclosed.
40. The imputations will be struck out.
THE CASE AGAINST THE THIRD AND FOURTH DEFENDANTS
41. The case against the third and fourth defendants is based upon a section of the article, referred to in the statement of claim as "the second matter complained of", which is in the following terms:
"The fact that Icon continues to advise the media confirms to the record industry that the PR company is committed to the cause of Kazaa on a deeper level than just client servicing. "I question their independence as a PR agency" says ARIA media spokesman for the case, Michael Speck. They need their client to win the copyright case to justify their involvement in a promotional campaign, which is now a central plank in our case. They should disclose that involvement to journalists."
Imputations against the first plaintiff
42. Mr Richardson, who appeared for the third and fourth defendants, challenged the imputations contained in subparagraphs 27(b), (c), (d) and (e).
27(b) The first plaintiff had behaved in such a way as to warrant the fourth defendant questioning its independence as a public relations agency.
43. Mr Richardson pointed out that the fourth defendant was not a public official whom the reasonable reader could reasonably assume would not question the independence of a public relations agency unless there was some genuine basis for concern about the propriety of the agency's conduct. On the contrary, it was an organisation engaged in litigation against the first plaintiff's client. More importantly, the imputation contains no hint as to the nature of the behaviour said to have warranted questioning of the first plaintiff's independence, nor even any indication as to why a reasonable reader might have supposed that an advertising agency should be independent of its client.
44. If the words relied upon by Mr McClintock in relation to this issue are capable of conveying any defamatory imputation, it is not one that is adequately encapsulated in this subparagraph. The imputation will be struck out.
27(c) The first plaintiff had deliberately deceived journalists reporting the Kazaa litigation.
45. In my view, the second matter complained of is clearly incapable of conveying this imputation. The remarks attributed to the fourth defendant did state that the first plaintiff should disclose its involvement in the relevant promotional campaign and, as Mr McClintock submitted, a reader would have understood the fourth defendant to have suggested that such a disclosure should have been made earlier. However, the concept of non-disclosure is not synonymous with that of deceit.
46. The pleaded imputation also fails to disclose the nature of the suggested deceit. Mr McClintock submitted that the words attributed to the fourth defendant seem to suggest that the first plaintiff had acted deceitfully by failing to inform the press that the promotional campaign in which they had been involved had become a central plank in the case brought against Sharman by ARIA. However, there is nothing in the pleading to suggest any means by which a reasonable reader might have deduced that journalists would have been unaware of that fact or misled in some manner by reason of their ignorance of it, let alone that the first plaintiff deliberately withheld the fact in order to deceive them.
47. The imputation in 27(c) will be struck out.
27(d) The first plaintiff had behaved in a dishonest manner by failing to disclose the fact that the media campaign it had devised for its client had become part of the litigation against its client.
48. In my opinion, the second matter complained of was also incapable of conveying this imputation.
49. The words attributed to the fourth defendant do not contain any statement to the effect that the first plaintiff had behaved in a dishonest manner. He did not even suggest that the first plaintiff should disclose the fact that the media campaign had become part of the litigation against its client. He suggested, rather, that they should disclose "that involvement", that is, their involvement in a promotional campaign that had become a central plank in the case.
50. Perhaps understandably, he did not indicate what form of disclosure would have been appropriate. It is unclear whether he was suggesting that the first plaintiff should have issued a press statement, incorporated some relevant comment in advertisements, or conducted a parallel campaign to inform the public. Mr McClintock submitted that the press should have been informed in some manner. However, the clear inference from the article is that the promotional campaign had been raised in the proceedings before the Federal Court by the third defendant, and I find it difficult to imagine that any reasonable reader would have imagined that Sharman's advertising agency had behaved dishonestly in failing to tell journalists about part of the case brought against its client by an opponent in the Federal Court, even if that had not been obvious to any journalist covering the case.
51. Even if the statements attributed to the fourth defendant were capable of conveying an imputation that the first plaintiff had, in some manner, behaved unethically by failing to disclose that the media campaign had become part of the case against its client, they were not in my opinion capable of conveying an imputation of actual dishonesty.
52. The imputation will be struck out.
27(e) The first plaintiff, in having a vested interest or an interest in the outcome of its client's Federal Court case, had breached its ethical obligation as a public relations agency.
53. For the reasons given in relation to the imputation pleaded in subparagraph 17(h), this imputation will also be struck out.
Imputations against the second plaintiff
54. The third and fourth defendants also challenge the imputations pleaded in subparagraphs 28(b), (c), (d) and (e) which are in substantially similar terms to subparagraphs 27(b), (c), (d) and (e), though, of course, adapted to plead imputations defamatory of the second plaintiff.
55. Despite Mr McClintock's eloquent defence of these subparagraphs, I accept Mr Richardson's submission that even if, contrary to my earlier findings, the second matter complained of was capable of conveying similar imputations against the first plaintiff, the hypothetical reader could be not be taken to have understood the words in question as conveying the disputed imputations pleaded against the second plaintiff personally.
56. Accordingly, they will be struck out.
Imputations against the third plaintiff
57. Similarly, the third and fourth defendants challenge the imputations pleaded in subparagraphs 29(b), (c), (d) and (e) which are again in substantially similar terms to subparagraphs 27(b), (c), (d) and (e), though, of course, adapted to plead imputations against the third plaintiff.
58. As previously mentioned, the article does not contain any explicit reference to the third plaintiff, and Mr McClintock was again forced to rely upon unpleaded facts and circumstances in order to lend some apparent cogency to his submissions in defence of these imputations. Again, however, I am unable to see how the second matter complained of could have conveyed these imputations to the hypothetical reasonable reader.
59. They will be struck out.
PARTICULARS OF AGGRAVATED DAMAGES
60. Finally, Mr Richardson challenged the following particulars of aggravated damages insofar as they concerned the cases against his clients as well as those against the first and second defendants:
31 (d) The desire of the defendants to injure the plaintiffs, evidenced by:(i) The sensational text and presentation of the matter complained of, including the inclusion of the material in the 6th column of the matter complained of under the heading "Servicing the Client";
(ii) The second defendant's campaign to injure the reputation of the plaintiffs including the publication of an article entitled "Sharman PR complains to Judge" on or about 24 December 2004;
(iii) The second defendant's malicious attitude towards the plaintiffs;
(iv) The terms of the interview provided by the fourth defendant to the second defendant for inclusion in the first matter complained of;
(v) The complaint made by the fourth defendant in relation to the first plaintiff to PRIA National dated 27 January 2005;
(vi) The fourth defendant's interest in promoting the interests of the third defendant in the proceedings.
(e) The second defendant's failure to disclose to Mr Robert Masters, president of the Public Relations Institute of Australia, that his answers to hypothetical questions, put to him by the second defendant during an interview, may be used in an article about the plaintiffs, and the second defendant's use of those answers in the matter complained of to give the impression that Mr Masters was commenting on the plaintiffs when he was not;(f) The second defendant's failure to disclose to the second plaintiff, despite interviewing him, that he was preparing an article for publication in The Australian newspaper, and his failure to disclose to the second plaintiff the fact that he had contacted, or was contemplating contacting, the other persons quoted in the first matter complained of, so as to deny the second plaintiff the opportunity of responding to those persons' remarks.
61. Mr McClintock sought to answer the criticism that neither the third or fourth defendants could be held responsible for the conduct of the second defendant referred to in paragraphs 31 (d), (e) and (f) of the statement of claim by suggesting that they had knowledge of such failures. He pointed out that a letter of particulars had alluded, in general terms, to such knowledge. I must say, however, that even when these sub-paragraphs are construed in the light of the letter of particulars, they do not, in my opinion, reveal with clarity the case which the plaintiffs apparently seek to make in relation to these issues. What seemed to be suggested in argument was that, knowing that the second defendant had failed to make the disclosures in question, the third and fourth defendant should have declined to participate in any interview with the second defendant. Neither the allegation itself, nor any reason for such a contention, has been disclosed in the pleadings or particulars, and I am satisfied that in their current form they are unsustainable against the third and fourth defendants.
62. It will be ordered that the allegations contained in those subparagraphs be relied upon only against the first and second defendants.
63. Since some of the disputed imputations have been struck out on the ground that they are defective in form, it may be appropriate to grant the plaintiffs liberty to replead the relevant subparagraphs. However, this issue was not argued and it is open to the plaintiffs to apply for leave to further amend should they be advised to do.
64. I will hear counsel as to costs.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Associate:
Date: 10 November 2005
Counsel for the plaintiffs: Mr B R McClintock SC and Mr A Dawson
Solicitor for the plaintiffs: Eakin McCafferty Cox
Counsel for the 1st and 2nd defendants: Mr A Leopold
Solicitor for the 1st and 2nd defendants: Blake Dawson Waldron
Counsel for the 3rd and 4th defendants: Mr M Richardson
Solicitor for the 3rd and 4th defendants: Gilbert & Tobin
Date of hearing 11 October 2005
Date of judgment 10 November 2005
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URL: http://www.austlii.edu.au/au/cases/act/ACTSC/2005/110.html